R v Landells [2000] VSCA 84

Court of Appeal (Vic)|2000-05-24|Before: PHILLIPS, C.J., CALLAWAY and CHERNOV, JJ.A.

Criminal Law - Murder - Conviction - Antagonism of applicant towards deceased - Whether having to be proved beyond reasonable doubt - Sentence - Head sentence of 17 years' imprisonment with non-parole period of 13 years not manifestly excessive.

The applicant, who is aged 36, was convicted in the Supreme Court at Melbourne upon a count of murder. This offence, which carried a maximum penalty of imprisonment for life was alleged to have been committed at Woori Yallock on 26 November, 1997. The deceased was one Jarrod Garth Pye, a young man then aged 19, who was a good friend of the applicant. As the learned trial judge said to the jury in his charge,

"It seems to me that there is no dispute in this case that the act performed by the accused caused the death of Jarrod Pye, nor is it asserted that the action of discharging the weapon was not a conscious, voluntary act, in the way I have defined that concept for you. The key issue in this case is the specific intention of the accused at the time he performed the act of discharging the firearm at the deceased. Did he have the specific intention to kill, or the specific intention to cause really serious bodily injury at the time he fired the fatal shot? (p.243)"

These statements of the judge reflect evidence proffered by the prosecution at the trial. The applicant stood mute and called no evidence. The prosecution case was that the applicant and the deceased spent a deal of 26 November, 1997 together and with some other persons. In the afternoon the deceased and the applicant, together with a woman named Beverley Lewis, who shared a house with the applicant, and a man named Graham Bruce, a neighbour of the applicant, went from the applicant's home to a location on the Yarra River about a kilometre or so away. They took with them and consumed a large quantity of alcohol including cans of beer and a mixture of cask wine, vodka and pineapple juice mixed up in a bucket.

About 5.00 p.m. the group returned to the applicant's home in Cynthia Grove all affected by alcohol. Bruce returned to his home next door and had a meal and a sleep. Later, two men, a Brian May and a Brian Davies (known as Cowboy) came to the house. In the early evening Bruce also returned to the house. He sat drinking beer with the deceased in the deceased's car.

About 8.00 p.m. Cowboy went to the deceased and told him "Go and get me some smoke", meaning cannabis. The deceased refused. Cowboy was insistent and threw a $20 bill into his lap. The deceased still refused and threw the money back at Cowboy. He was also asked to go on this errand by Lewis and again refused.

Then the applicant became involved saying to the deceased "I want some respect. Go and get me some smoke" or words to that effect. The deceased refused whereupon the applicant grabbed him around the throat through the car window and half dragged him out of the car. The deceased broke free and resumed his seat, distressed and upset. He reversed his car somewhat but then apparently decided to go back to the house and sort out the problem with the applicant, not wishing to leave on bad terms. Bruce advised him not to do this.

Bruce and the deceased went to the front door of the applicant's house, the applicant having gone therein. Cowboy made the same demand and the deceased again refused. The applicant then said to him "Go and get some, cunt." The deceased again refused. The applicant then walked away from the front door to a laundry and used a stepladder to gain access to an air vent in the ceiling from which he removed a .45 automatic Colt pistol. This contained two bullets, one of which was a dummy. The applicant ejected the dummy bullet and caused the live bullet to enter the firing chamber. He placed the pistol in the back of his pants out of sight and walked to the front door area where the others were standing.

He approached the deceased and put the gun to his head just above the right eye saying to the deceased, "Don't fuck with me" or "This is what you get when you fuck with me" or something like that. The applicant then pulled the trigger and shot the deceased in the head. Death was virtually instantaneous with the bullet passing through the head. A subsequent police search did not locate it or the dummy bullet.

After the shooting the applicant was seen to be crying and greatly distressed saying "What have I done?" He told the police that he did not think the gun was loaded.

During a formal interview with the police, he said, "It was a bluff" and that he wanted to prove a point. He did not know why he had grabbed the gun. He knew the gun contained a dummy bullet followed by a live one. He cocked the gun which would have ejected the dummy bullet and the live cartridge must have been loaded. He thought the gun contained a live round and he pulled the trigger. It was like he was possessed by something. It was an accident and he did not mean to cock the gun, load it or kill the deceased. He said he had the gun in the back of his pants and pulled it out swinging it round thinking it was safe and "Just shot him" He pointed the gun at the deceased's forehead. He did not know why he pulled the trigger. He did not mean to do this or kill the deceased.

Again referring to the learned judge's directions it is clear that the defence advanced at the trial was that the death of the deceased had all the hallmarks of an unintentional killing. The arguments, including the one about lack of respect, were admitted. But it was contended that the applicant was proceeding by way of bluff, a stupid exercise and the work of a drunken man. It was said all his actions were consistent with the use of a weapon to bluff or scare only. It was contended that he would not have expected the live bullet to be in the firing chamber and his close friendship with the deceased made it inconceivable that he would have intended to murder him. Counsel pointed to the anguish and remorse demonstrated after the event by the applicant submitting that all this was quite inconsistent with the applicant having a murderous intent at the material time. It was not disputed that he was guilty on the evidence of manslaughter by an unlawful and dangerous act.

It is in the above setting that this Court is required to give consideration to the sole ground now pleaded in a notice of application for leave to appeal against conviction.

This ground was allowed by way of substitution of a ground alleging the applicant's conviction was unsafe and unsatisfactory by order of the learned Master made last week.

"The learned trial judge erred in law in his directions to the jury with respect to the drawing of inferences, thereby giving rise to a substantial miscarriage of justice. Particulars In the circumstances of this case the learned trial judge was required to direct the jury that, before it could use motive (evidenced by antagonism) as a basis for inferring, beyond reasonable doubt, that the applicant had the necessary murderous intent, it was required to be satisfied beyond reasonable doubt as to the existence of the motive (i.e. antagonism)."

As might be expected, argument upon this ground was of rather short compass. Mr Grace for the applicant first took the Court to what he described as the principal direction for consideration.

"The key issue in this case is the specific intention of the accused at the time he performed the act of discharging the firearm at the deceased. Did he have the specific intention to kill, or the specific intention to cause really serious bodily injury at the time he fired the fatal shot? The Crown submit that you should infer beyond reasonable doubt that the accused did have the necessary murderous intent. I have already mentioned to you some of the major factors upon which the Crown relies in the course of discussing with you out of court statements. The Crown points to the antagonism and aggression, fuelled by alcohol consumption, which the accused displayed towards the deceased prior to the shooting, including grabbing him by the throat. The Crown submits that the antagonism continued during the evening, and ultimately resulted in a series of deliberate acts by the accused, which included the retrieving of the pistol from the ceiling, cocking it, bringing it hidden behind his back into the hallway, and firing it at the deceased from point blank range. The Crown relies on the use of the expressions, "Don't fuck with me," or "This is what you get when you fuck with me," which immediately preceded the shooting, as evincing an intention to fire the weapon at the deceased. It was submitted that the accused had failed to provide any satisfactory alternative explanation for the shooting, which otherwise had all the characteristics of a deliberate killing. The firing of a shot into a person's head in the manner which occurred here must, submit the Crown, have been done with the intention to kill, or cause really serious bodily injury. Whilst the accused undoubtedly showed remorse after the shooting, it was his intent at the time of the shooting that was crucial. The Crown submitted that you should be satisfied beyond reasonable doubt that at that time he intended to kill Jarrod Pye, or at the very least to cause him really serious bodily injury." (pp.243/244)

Counsel also asserted the relevance of the following passages of the charge.

"During the course of delivering this charge to you I may, as I have up to the present time, use the expressions such as, the Crown must prove or the Crown must establish or some similar expression. You will understand that on each occasion, whether or not I expressly state it, the words, beyond reasonable doubt, are incorporated in what I say." (p.240) "When you are drawing an inference in a criminal trial and where the inference you draw about the facts assumes significance in the Crown case then you must not draw such an inference unless you are satisfied it is the only proper inference to draw. If you were drawing an inference about an important matter such as an element of an offence or, for instance, about a fact that was significant in the establishment of an element of an offence you must not draw such an inference unless it is the only reasonable inference open on the facts. That stems from the burden of proof which rests on the Crown to establish every fact beyond reasonable doubt insofar as elements of the offence are concerned before any verdict of guilty can be properly reached. That does not mean that you are obliged to discard or disregard every piece of evidence which does not, by itself, establish any of the elements of the crime beyond reasonable doubt. You must consider the weight and significance that is to be given to the united force of all the evidence when put together. One piece of evidence may resolve your doubts concerning another piece of evidence. However, before you return a verdict of guilty, you must be satisfied beyond reasonable doubt that all the elements of the offence have been proved." (pp.241/242)

Asked by a member of the Court to identify any complaint he had as to the above passages, Mr Grace replied that his complaint was one of omission - the learned judge had not directed the jury that motive in the applicant must be proved beyond reasonable doubt. When it was pointed out to him that the word "motive" had not passed the lips of either counsel or the judge in addressing the jury, Mr Grace further replied that the better term might be "antagonism". The judge had not directed the jury that antagonism in the applicant had to be proved beyond reasonable doubt. When it was suggested to him by a member of the Court that it was arguable that in the passage above (p.242) the judge had in fact directed the jury that "a fact that was significant in the establishment of an element of an offence" (in this case antagonism as establishing murderous intent) had to be established beyond reasonable doubt, Mr Grace contended that his Honour had indeed given such a direction. However, he submitted, it was still deficient in that the words "such as antagonism" or "in this case, antagonism" did not follow upon the last quoted passage.

And so, the essential thrust of this application became very narrowly defined.

Counsel then took the Court, via the transcript, to the way the Crown presented its case on the vital question whether it had been proved that the applicant had a murderous intent. Referring to the judge's charge, wherein his Honour had summarised that case, Mr Grace drew attention to remarks of the Crown Prosecutor as to the "antagonism" and "animosity" of the applicant; assertions that he bore "ill will" to the deceased; that he did not "act in a vacuum"; that he was in a "aggressive, domineering and vicious mood"; "affected by alcohol" and "angry". (pp.282, 283, 284, 286) Other remarks of defence counsel, to which Mr Grace drew attention spoke of the applicant utilising "bluff"; that the parties were "affectionate to each other" and had never been seen to "argue" before. (pp.288, 289, 290)

Pursuing his complaint as to the content of the charge, Mr Grace submitted that "motive" (he now called it antagonism), relied upon by the Crown as a basis for inferring beyond reasonable doubt that the applicant had a murderous intent, must be proved beyond reasonable doubt. He cited Penney v. R.[1] and, specifically, paragraphs 25, 26 and 27 of the judgment of Callinan, J., which was the leading judgment in that case, in which the other members of the Court, McHugh, Gummow, Kirby and Hayne, JJ. concurred.

"[25] The appellant submitted that the passage confused intention with motive: if motive is to be relied on then it must be proved beyond reasonable doubt. The appellant argued that the trial judge, having referred to what was, in essence, motive, should have given a direction to that effect. [26] Taken in isolation the passage could have a tendency to confuse motive with intention. The appellant in this connection relied upon a passage from the unanimous judgment of a New South Wales Court of Appeal of five judges (Street CJ, Hope, Glass, Samuels and Priestley JJA) in R. v. Murphy in which that court accurately summarised the relevant principle stated in Chamberlain v R (No 2), which applies if motive is to be used as a factual basis for an inference of guilt. In our opinion it is incorrect to direct a jury that the accused's motive is a `subsidiary fact' or a non-essential element in the case which does not require proof beyond reasonable doubt but may be proved to the jury's satisfaction or on the balance of probabilities. Motive is not merely a matter which may explain the accused's conduct. It is rather a fact directed to proof of the accused's guilt; as Chamberlain makes clear, before a jury can infer guilt from motive they must be satisfied that the motive asserted has been proved beyond reasonable doubt. [27] The difficulty for the appellant in this submission is that the passage in the trial judge's summing up, taken in context, shows that his Honour was not in fact dealing with intention or motive as such but was pointing to evidence with respect to the relationship between the appellant and his wife upon which they could rely for an ultimate conclusion of guilt beyond reasonable doubt. The evidence was cogent for the reasons analogous to those stated by Barwick CJ in Wilson v R.: It is quite apparent that the nature of the current relationship between the applicant and his wife was relevant to the question to be decided by the jury. Evidence of a close affectionate relationship could properly have been used by the jury to incline against the conclusion, which might otherwise have been drawn from the circumstances, that the applicant killed his wife. Equally, evidence that there had developed mutual enmity could be used to induce the conclusion that he had killed his wife and that his story of an accidental shooting lacked credibility."

Also cited was R. v. Kotzmann[2], specifically paragraphs 25, 26 and 27 of the judgment of Callaway, J.A., but those paragraphs must be read in the light of the postscript to his Honour's judgment, especially paragraph 47.

It followed, so the argument went, that evidence of motive - particularly in the instant case, should be characterised as a "link in the chain" and not merely a "strand in the cable". Accordingly, again in the instant case, as the Crown relied on antagonism as evidencing motive, it became "a crucial plank in the Crown theory of murder". Thus, antagonism, as evidencing motive, was required to be proved beyond reasonable doubt and the judge should have directed the jury accordingly.

Mr Hillman for the Crown submitted that the instant case was not a case where motive was used as part of a circumstantial case. The evidence of the applicant's utterances before the shooting was not put forward as evidence of motive but rather as evidence of what was in his mind at very relevant times. The Crown relied upon this evidence and evidence of the applicant's actions to prove he had the necessary murderous intent. It represented only part of the "accumulated detail" put forward in such proof.

Further, said counsel for the Crown, the evidence as to the applicant's antagonism was not challenged and thus, it would seem incongruous in the extreme that it be necessary for the jury to be told antagonism must be proved beyond reasonable doubt. In any event, he submitted, the impugned directions were sufficient and drew no exception from the applicant's counsel.

I am unable to uphold the submission which is central to this application. In my opinion, antagonism or motive (call it what you will) was not a link in the chain as alleged. Rather, it was one of a number of circumstances which the Crown put forward as throwing light on the intention of the applicant at the critical time. To my mind, this was not a "motive" case at all. I would uphold the submission of Mr Hillman that the evidence of antagonism is not evidence of motive but rather a matter of detail, among a number of others, said to throw light on whether the applicant had the necessary murderous intent. Although at one point Mr Grace alleged that the Crown had put a case of "premeditated" murder, he later allowed that that expression was never used by the Crown Prosecutor. The judge did refer, at one point, to the Crown case involving a murder that was "planned", but in my view his Honour was doubtless referring to the characterisation by the Crown Prosecutor of a number of acts of the applicant as "deliberate", e.g., moving a ladder to a spot under the vent where the gun was situated; removing and replacing the vent and the concealment of the gun in the back of his trousers. Mr Grace conceded these events probably occupied less than a minute. It is also very significant that the very experienced counsel for the applicant at trial took no exception in terms of the ground now argued. Nor did he seek the direction now claimed to be necessary. I have already adverted to the absence of the expression "motive" in what was said to the jury by all concerned.

It is only in recent times that it has been suggested that Penney has changed the long standing law in Victoria as to proof of motive. In my opinion, this Court should give no encouragement to such suggestion. In Kotzmann this Court rejected the view that some "additional facts" must be proved beyond reasonable doubt by the Crown even though they are not, in strict logic, indispensable links in a chain of sequential reasoning. Put another way, Kotzmann stands for the propositions that it is incumbent on the Crown to prove beyond reasonable doubt each element in the offence charged and any fact or facts constituting such an indispensable link or links. Even where an additional fact is a link in a chain of sequential reasoning, it does not follow that a special direction with respect to that fact has to be given: see Kotzmann at paragraph 15 and R. v. Loguancio[3] at paragraph 9. As I have already said, the instant case is not such a "link" case. In connection with the matters canvassed in this paragraph I refer to Kotzmann in particular paragraphs 15, 16, 17, 18, 19, 20, 21, 44, 45, 46 and 47 of the judgment of Callaway, J.A., paragraphs 50, 51, 52, 53 and 54 of the judgment of Batt, J.A. and paragraphs 1, 2 and 3 of my own judgment. In my opinion, the application touching conviction should be dismissed.

The application touching sentence. Mr Grace confined his submissions to the non-parole period fixed which he contended was manifestly excessive. He argued that in fixing it the learned judge failed to give proper weight to the mitigatory factors of the case viz, the applicant's alcoholism since the age of 20 (he was 34 at the time of the offence); his condition of cirrhosis of the liver; his lack of relevant prior convictions; the strong support he was receiving from family members and the resumption of a relationship with a young woman. Counsel also referred to the judge's satisfaction that genuine remorse had occurred in the applicant immediately after his offence and to his successful completion of drug and alcohol education courses and other qualifications while in prison.

Mr Hillman for the Crown said that the judge had noted such mitigatory matters in his reasons for sentence. (pp.322/323) It must not be supposed his Honour overlooked them.

To succeed on this ground, it is for the applicant to show that the non-parole period fixed fell altogether outside the range properly available to the learned judge. Also implicit in the ground is the contention that for some reason, not capable of identification, the judicial discretion in the above context has miscarried. I have looked for evidence on the face of the sentence that, having cited the mitigatory matters, the learned judge then did not sufficiently take them into account. I am unable to find such evidence. It must be remembered that the learned judge was also obliged to give weight to the seriousness of the applicant's offence and the maximum penalty prescribed by Parliament. In my opinion the application touching sentence also fails.

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Judgment (37 paragraphs)

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