Court of Appeal (Qld)|2015-07-24|Before: Holmes JA and Atkinson and Applegarth JJ, Separate, reasons for judgment of each member of the Court, Holmes JA and Atkinson J, concurring as to the orders made, Applegarth J, dissenting in part
Holmes JA and Atkinson and Applegarth JJ, Separate, reasons for judgment of each member of the Court, Holmes JA and Atkinson J, concurring as to the orders made
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR
INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the
appellant was
convicted of manslaughter – where the appellant struck the deceased with
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE ORINSUPPORTABLE HAVING REGARD TO EVIDENCE – where theappellant wasconvicted of manslaughter – where the appellant struck the deceased withmild to moderate force to the back ofthe head – where the appellant toldpolice that the deceased had accused him of being a police informant –where theappellant was inconsistent in his account to police as to whether thedeceased had made physical contact with him first – wherethe incident waspartially recorded by a CCTV camera – where the appellant argued that thejury could not reasonably have excludedthe defences of self-defence andprevention of repetition of insult and the excuses of accident and compulsion– whether theverdict was unreasonableCRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OFAPPEAL – CONDUCT OF DEFENCE COUNSEL – where theappellant argued
that the incompetence of his counsel at trial caused a miscarriage of justice
– where the appellant alleged
that his counsel failed to: give an opening
address
call the appellant to give evidence
obtain the original CCTV footage
cross-examine
a particular witness
and adduce the evidence of two expert
witnesses – where the appellant’s trial counsel gave evidence
at the
appeal as to the appellant’s instructions and the forensic strategy
adopted at trial – whether there was a miscarriage
of justice
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE
– GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY
EXCESSIVE OR
INADEQUATE – where the appellant was sentenced to ten years imprisonment
with an automatic serious violent offence
declaration – where the
appellant had a long criminal history but a limited history of violent offences
– where the appellant
struck the deceased unexpectedly, in a public place
– where the blow was delivered with mild to moderate force with the
appellant’s
non-dominant hand – whether the sentence was manifestly
excessive
Penalties and Sentences Act 1992 (Qld), s 9(1)(a), s 9(1)(d)
Dinsdale v The Queen (2000) 202 CLR 321
[2000] HCA 54,
cited
Lowndes v The Queen (1999) 195 CLR 665
[1999] HCA 29,
cited
Nudd v The Queen (2006) 80 ALJR 614
(2006) 225 ALR 161
[2006]
HCA 9, cited
R v Bojovic [2000] 2 Qd R 183
[1999] QCA
206, considered
R v Dwyer [2008] QCA
117, considered
R v Katia
ex parte Attorney-General
(Qld) [2006] QCA
300, considered
R v Mooka [2007] QCA
36, considered
R v Sebo
ex parte Attorney-General
(Qld) (2007) 179 A Crim R 24
[2007] QCA
426, considered
R v Simeon [2000] QCA
470, considered
R v Tientjes
ex parte Attorney-General
of Queensland [1999] QCA
480, considered
Judgment (79 paragraphs)
[1]
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - where the appellant was convicted of manslaughter - where the appellant struck the deceased with mild to moderate force to the back of the head - where the appellant told police that the deceased had accused him of being a police informant - where the appellant was inconsistent in his account to police as to whether the deceased had made physical contact with him first - where the incident was partially recorded by a CCTV camera - where the appellant argued that the jury could not reasonably have excluded the defences of self-defence and prevention of repetition of insult and the excuses of accident and compulsion - whether the verdict was unreasonable
[2]
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - CONDUCT OF DEFENCE COUNSEL - where the appellant argued that the incompetence of his counsel at trial caused a miscarriage of justice - where the appellant alleged that his counsel failed to: give an opening address; call the appellant to give evidence; obtain the original CCTV footage; cross-examine a particular witness; and adduce the evidence of two expert witnesses - where the appellant's trial counsel gave evidence at the appeal as to the appellant's instructions and the forensic strategy adopted at trial - whether there was a miscarriage of justice
[3]
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE - where the appellant was sentenced to ten years imprisonment with an automatic serious violent offence declaration - where the appellant had a long criminal history but a limited history of violent offences - where the appellant struck the deceased unexpectedly, in a public place - where the blow was delivered with mild to moderate force with the appellant's non-dominant hand - whether the sentence was manifestly excessive
R v Tientjes; ex parte Attorney-General of Queensland[1999] QCA 480, considered
[15]
W Terracini SC, with R H Armitage, for the appellant/applicant
[16]
Director of Public Prosecutions (Queensland) for the respondent
[17]
[1] HOLMES JA: The appellant appeals his conviction by a jury of the manslaughter of Robert Newnham and seeks leave to appeal against the sentence of ten years imprisonment imposed on him. His grounds of appeal against the verdict are that it is unreasonable and that counsel's conduct at the trial resulted in a miscarriage of justice which deprived him of a significant possibility of acquittal. He seeks leave to appeal against sentence on the ground that the sentence imposed is manifestly excessive.
[18]
[2] On 19 March 2012, Mr Newnham received a fatal injury in an argument with the appellant in a supermarket. There was no dispute that the cause of Mr Newnham's death was a traumatic basal subarachnoid haemorrhage which had resulted from a tear in his right vertebral artery. Dr Little, the pathologist who performed the autopsy on Mr Newnham's body, explained that the haemorrhage had caused him to experience hypoxic ischaemic encephalopathy; that is, brain damage resulting from the lack of blood flow and oxygen into the brain. A complication of his loss of consciousness was that he had developed aspiration pneumonia through the inhalation of food into his airways.
[3] Dr Little noted no recent injuries on Mr Newnham's body, and no external injury visible on his head. There was, however, bruising over the right mastoid process, the bone behind the ear at the base of the skull, and in the adjoining muscles; it was a few centimetres in size. The bruising to the mastoid area was consistent with a punch with a closed fist entailing the application of a sideways force which had stretched, twisted and ruptured the vertebral artery. Mr Newnham did not have any pre-existing physical conditions which would have contributed to his death, although there were signs of use of stimulant drugs. A toxological report showed that he had 0.002 mg/kg of oxycodone in his blood; that was, the pathologist said, a normal therapeutic level. There were also some metabolites of marijuana, but it was impossible to say when that drug had been consumed. The only possible relevance of those substances was that they might have slowed Mr Newnham's reflexes, so that on sustaining a blow, his head might have moved more, stretching the vertebral artery, before he reacted.
[4] Dr Little observed that the force applied to Mr Newnham had not caused any fractures. The mastoid area was a thick area of bone and was difficult to fracture, but it did not require a particularly powerful force to damage the vertebral artery. The pathologist was asked for her opinion as to whether the injury to the mastoid could have been caused by Mr Newnham's head hitting the ground or hitting some shelving. She responded that it was unlikely a fall against a shelf would have caused the injury she observed without any sign being left on the skin. If he had fallen on the ground in such a way as to cause the injury, she would expect bruising to his ear, as the most prominent part of the side of the head, and she had seen none. The lack of external injury led her to conclude that a blow with a fist, rather than hitting the ground or shelving, was likely to be the mechanism of the injury.
[19]
[6] The Crown case turned largely on the appellant's admissions in a series of interviews commencing soon after Mr Newnham was injured. In his first conversation with police in the morning of 20 March 2012, he was asked what had happened the previous evening and answered "Ah, I don't know like, um, ah, some guy that I don't really know that well tried to head-butt me and I retaliated." He went on to say that Mr Newnham was the one who had instigated what happened. In a conversation later that day, he repeated that Mr Newnham was the "one that started it". Mr Newnham had "got [him] in the face". (Unfortunately, whatever action the appellant demonstrated is unknown, because the conversation was recorded only in audio form.) He, the appellant, had not hit him "heaps hard", but "hard enough". Mr Newnham's response seemed delayed; the appellant described him taking a step backwards, throwing a punch, and then taking a step to the side before falling.
[7] The appellant said that he had been "a little bit drug affected" at the time. He and Mr Newnham had had a conversation outside the shopping centre, in which the latter had told him he thought he was a police informant. That started an argument between the two, which continued as they walked into the shopping centre. Mr Newnham had made contact with him in the aisle; he had hit Mr Newnham once; it took at least seven seconds for him to fall, and in the interval, he shuffled and threw a punch towards the appellant. The appellant was asked whether Mr Newnham had physically assaulted him. He said that he felt there had been contact: he thought the brim of Mr Newnham's hat had hit him on the face. He had not been threatened until that point, but he regarded himself as having been provoked into hitting Mr Newnham by the contact with the brim of the latter's hat. Asked what would have happened if he had not responded as he did, he said that Mr Newnham "probably would have thought he had it over me and start throwin' punches I guess...". He thought that there was an exchange of words in the ten seconds before Mr Newnham fell. The police officer asked him whether Mr Newnham had hit anything on the way down. The appellant said "I don't know, he was, I think he was going forwards to the shelf...". He explained that Mr Newnham was not right next to the shelving, so if he had hit it, it was perhaps towards to its bottom.
[8] Later that day, a formal record of interview was conducted with the appellant. He reiterated that Mr Newnham had accused him of being a police informant; and as he was walking away, had added that he was not the only person who thought so. The two men entered the shopping mall. For most of the time in the supermarket, he was behind Mr Newnham. He recalled the two of them moving into "pretty close proximity" and his pushing Mr Newnham. He thought that the brim of Mr Newnham's hat had hit him in the face, and he had retaliated, hitting him with what he was "pretty sure" was his right hand. (He was right-handed.) Again, he said that there was a delay before Mr Newnham actually fell: the latter took a step back, then moved forward, threw an arm out, and words were exchanged before he fell over. The appellant said that he had been eager to defend himself verbally and had followed Mr Newnham to find out who were the other people who thought he was an informant. Mr Newnham had said there was evidence of other people being raided after he, the appellant had visited them.
[20]
"SKONDIN: Um but I know um, just from how I feel, like, um, um, um, we, it was like, I think the initial contact between the two of us was a, a push. And um, um, the second contact, ah, was from, um, us both being face to face - - -
[21]
SKONDIN: And um - actually, I think I was the one that pushed him first.
[22]
SKONDIN: And the second contact was, um, we came face to face and, um, I felt his hat, um, touch my face so - - -
[23]
SKONDIN: That was when I, um - I, ah, threw a punch.
[24]
SKONDIN: And, um, ah, like I said to you earlier when you asked me if um - did you - I don't know if it was you, but one of the officers asked me if um - was it like a, um how hard the punch was - - -
[25]
SKONDIN: Or it um, it was just heat of the moment I th-, and I didn't feel like it was, um, a-, a very hard punch at all."
[26]
[10] The appellant had thrown the punch because their heads collided; that made him feel threatened. At the time, he had not slept for a couple of days and was under the influence of amphetamines. He did not know exactly where he had struck Mr Newnham, although he was aiming for his head. He could not recall if he was wearing anything on his own head. He thought that Mr Newnham had tried to punch him after, he, the appellant, had hit him.
[27]
[11] CCTV footage from outside the shopping complex, a bottle shop in the complex, and the supermarket was tendered in evidence. The investigating police officer, without objection, explained that the supermarket footage had breaks in continuity. There were sixteen cameras in the store operating at four images per second, but motion sensors diverted the filming to the store aisles where there was heavier traffic. Consequently, there were breaks of two or three seconds in the filming of the two men in the store.
[12] In the footage, the appellant can be seen approaching the shopping mall, and, apparently outside the bottle shop, encountering Mr Newnham. The appellant is wearing a peaked cap; Mr Newnham is hatless. Mr Newnham, who is of a thin, somewhat wasted appearance, is taller than the appellant, who is relatively stocky in build. The two men speak for five minutes before disappearing from view. On the supermarket camera, Mr Newnham can be seen entering the store with the appellant following him, the two men still, apparently, in discussion. Mr Newnham, holding an empty shopping basket, walks along the confectionary aisle with the appellant, who is carrying a small bag in his left hand, following a few feet behind. Mr Newnham, having walked in one direction up the aisle, moves back down it, the appellant still three or four feet to his rear. Mr Newnham stoops to take something from a shelf, then straightens. As he stands with his back to the appellant, the latter pushes him from behind with both hands, causing him to stumble forward.
[13] The camera skips three seconds. Mr Newnham, who is again ahead of the appellant, seems to be turning to speak to him. There is another two second gap in the footage. The appellant moves towards Mr Newnham in an aggressive posture; his left arm appears to be raised, consistent with a punch being delivered to Mr Newnham, the upper part of whose body has turned to his left, towards the appellant. Because the footage is taken from behind the two men, the actual movement and any connection cannot be seen. There is another skip of a couple of seconds before Mr Newnham can be seen again, slumping to the floor. The appellant immediately leaves the store.
[28]
[14] A number of supermarket staff was called to give evidence. They saw the two men talking or arguing but did not see any assault before they became aware that Mr Newnham was lying unconscious in the confectionary aisle. One of the employees described Mr Newnham lying on the floor with his head underneath some shelving. The night supervisor, Ms Meca, said that Mr Newnham was a regular customer. She was aware of his having a conversation in an aisle which was in her peripheral vision before she saw him on the ground with another male in his vicinity, and made a call for first aid. Ms Meca was not cross-examined beyond having put to her, and agreeing with, the proposition that Mr Newnham had previously behaved in an unpredictable and sometimes angry way in the store.
[29]
[15] The appellant did not give evidence. His counsel put to the jury, essentially, that the blow which caused Mr Newnham's death was an unlucky punch delivered in the heat of the moment. It was not reasonably foreseeable that it would result in Mr Newnham's death, so that the appellant should be acquitted on the excuse of accident. The appellant was evidently confused about whether Mr Newnham was wearing a hat, but he had plainly not intended to lie, because he evidently knew that police would have footage of the incident. The situation between the two men had obviously escalated while they were in the aisle; there were parts of the footage missing; the jury could not be satisfied that the appellant had not responded in self-defence to an assault by punching Mr Newnham with a blow which was unlikely to cause death or grievous bodily harm. Similar considerations meant that the defences of prevention of repetition of insult and compulsion could not be excluded.
[16] The trial judge left to the jury the excuses of accident (under s 23(1)(b) of the Criminal Code) and compulsion (under s 31(1)(c)) and the defences of prevention of repetition of insult (under s 270) and self-defence (under s 271). His Honour identified, as the relevant conduct by Mr Newnham capable of amounting to assault, a possible collision of heads or some other form of physical contact not recorded on camera, which would also amount to provocation; in respect of the latter there was also an insult by way of the suggestion that the appellant was a police informant. Accident was left in general terms, with the real issue identified as whether an ordinary person in the appellant's position would reasonably have foreseen Mr Newnham's death as a possible consequence of punching him in the way the appellant did.
[30]
[17] Here, the appellant argued that the jury could not exclude any or all of those defences or excuses so as to convict him. In particular, it was submitted that the Crown case was irretrievably flawed by its reliance on the CCTV footage which contained gaps, preventing the exclusion of the defences.
[18] It was not open to the jury, it was argued, to exclude accident, because Mr Newnham's death could not be considered reasonably foreseeable. In light of Dr Little's evidence - that it was unusual for a single blow with a hand or a fist to cause a tear to the vertebral artery; that it was unusual for a single blow of that kind to cause death; and that traumatic rupture of the vertebral artery itself was a very rare cause of death - the death was no more than a "remote or speculative" possibility of the kind discussed in R v Trieu[1]. The appellant's remaining argument in this regard was that the medical evidence could not exclude the possibility that Mr Newnham's death was the result of his striking his head on shelving as he fell to the ground; which, it was argued, would mean that an ordinary person would not reasonably foresee his death in that way.
[19] The appellant submitted that the evidence of a collision between his head and Mr Newnham's was sufficient basis to raise prevention of repetition of insult (with, in addition, the suggestion that he was an informant), self-defence and compulsion under the Criminal Code. The jury ought to have found that his response was not such as to cause death or grievous bodily harm, for the purposes of s 270 and s 271(1), while being reasonably proportionate to the harm threatened, for the purposes of s 31(1)(d)(iii).
[31]
[20] The relevant event which had to be reasonably foreseeable for the purposes of the excuse of accident under s 23(1)(b) was, of course, Mr Newnham's death, not the tear of his vertebral artery. The evidence pointed to a blow striking him behind the ear, delivered from his side and taking him by surprise. There were no defensive injuries on Mr Newnham or injuries on the appellant which would suggest any attempt on the former's part at self-defence. The two men were in an area of hard surfaces; the supermarket floor and the adjacent shelving. It was open to the jury to conclude that it was reasonably foreseeable that a punch delivered suddenly and without warning in that setting would result in death. And I should say in that context that the possibility that Mr Newnham's head had struck the shelf was open: Dr Little did not exclude it, although she thought it unlikely. But it did not improve matters for the appellant at all. If the jury did consider that to have been the mechanism of death it was, in my view, one which was entirely predictable; far more so than the alternative mechanism of the punch causing the severance of the vertebral artery. The possibility that Mr Newnham's fatal injury was caused by contact with a shelf does nothing to render the jury's verdict unreasonable.
[21] The difficulty with the argument in relation to s 31(1)(c) and s 271(1), putting aside the question of the proportionality of the appellant's response, is that it was entirely open to the jury to reject his account of an assault by Mr Newnham. His version of events had varied markedly, from an attempted head butt to a supposed collision of Mr Newnham's hat with his head, implausible since Mr Newnham was wearing no hat. The CCTV footage showed Mr Newnham consistently moving away from the appellant down the aisle, with the only source of aggression being the appellant himself. The jury were entitled to reject the notion of any form of assault by Mr Newnham and to regard the defences as inapplicable.
[22] For similar reasons, it was open to the jury to consider that there was no insult in the form of any physical act by Mr Newnham which would found the defence under s 270. There was evidence of an insult in the form of the allegation that the appellant was a police informant, but the obvious conclusion was that its repetition could readily be avoided by the appellant leaving the shopping centre, rather than pursuing Mr Newnham. No degree of force by way of response to that statement could be considered reasonably necessary.
[32]
The ground that counsel's conduct gave rise to a miscarriage of justice
[33]
[24] The appellant asserted that the incompetence of his counsel at trial caused a miscarriage of justice. That incompetence was particularised as the following failures: to make an opening address to the jury; to call the appellant to give evidence; to obtain access to the original CCTV footage from the supermarket; to cross-examine Ms Meca, who had said in her statement that she had seen Mr Newnham collide with shelving; and to adduce the evidence of a pathologist, Professor Johan Duflou, and of an expert who examined the CCTV footage, Dr Alexander Green. To advance this argument, the appellant sought leave to adduce evidence in the form of an affidavit as to his dealings with his legal representatives, on which he was cross-examined. In response, the Crown adduced evidence both in oral and affidavit form from the appellant's solicitor, Mr Coburn, and his barrister, Mr Godbolt, and tendered three documents, titled, respectively, "Plea of not guilty instructions" "Instructions in relation to evidence" and "Statement of facts accepting the Crown case".
[34]
[25] The appellant's version of events was that, having dismissed his previous legal representatives because they refused to call the experts, Professor Duflou and Dr Green, he had made it clear to Mr Coburn and Mr Godbolt that he wished those experts called, and wished also himself to give evidence. Mr Godbolt had told him there was not enough time to call the experts because the trial had only been set down for five days. In his affidavit, the appellant expressed the view that it was because Mr Godbolt had only five days available for the trial that he did not call the experts and was "adamant" that the appellant should not give evidence.
[26] No affidavits from Professor Duflou or Dr Green were put before the Court. Instead reports apparently authored by them were annexed to an affidavit of the appellant. Professor Duflou had seen the statements of Crown witnesses, the CCTV footage, still photographs from the video footage, Dr Little's autopsy report, a toxicology report in relation to Mr Newnham and various photographs taken during the autopsy. He agreed with Dr Little as to the cause of death, and also agreed that a vertebral artery dissection could be caused with the application of force which was not of great magnitude. He offered this suggestion:
[35]
"The video footage does not, in my opinion, show an obvious punch to the side of the head - it is certainly possible this may have occurred, and the presence of bruising to the side of the head would be supportive evidence for this being the location the punch came in contact with the head. However, it is also reasonably possible that the deceased was involved in a minor scuffle with or without a punch connecting with the head, following which he slipped (possibly while under the influence of oxycodone), and struck the side of his head against for example the display unit or the ground, and only at that time sustaining the injury to the blood vessel."
[36]
The point of that speculation is not clear, but it is evident that Professor Duflou's opinion was given unencumbered by knowledge of the appellant's admission to having struck Mr Newnham.
[37]
[27] Dr Green gave his opinion that the skips in the CCTV footage were not due to motion detection by the cameras, and the manufacturer's specification suggested that there should not be an excessive load. If the original CCTV footage were supplied to him, he would be able to determine whether there had been any tampering with it.
[28] According to the appellant's evidence here, he had instructed his barrister that he wanted him to give an opening address which would correct anything untrue said by the Crown prosecutor in his opening. Despite his instructions, Mr Godbolt had not given an opening address, saying there was no need. That was of particular concern because the Crown prosecutor alleged that he hit Mr Newnham to the back of the head, which was false. It came as a surprise to the appellant when it was alleged at trial the blow was struck to the area of the mastoid bone, notwithstanding that he had been present through committal proceedings and had been required by his previous solicitors to comment on the statements in the Crown brief of evidence.
[29] The appellant said Mr Godbolt had advised him that he should not give evidence; when he was asked whether he wished to do so, he should answer in the negative. He had responded that he was being made to do something he did not wish to do, so he intended to answer, when called on, by saying that "under legal advice" he had decided not to give evidence. In the event, Mr Godbolt answered for him, and he did not have a chance to make that statement. While the appellant accepted that he might have signed the document headed "Plea of not guilty instructions", he initially denied that the signatures on the "Instructions in relation to evidence" (which confirmed that he did not wish to give evidence) and "Statement of fact accepting the Crown case" were his; although subsequently he retreated to saying that he could not recall signing them. He particularly wanted to give evidence because it was necessary for him to explain that he had made a mistake, rather than telling a lie, about Mr Newnham wearing a hat.
[30] If he had been permitted to give evidence, the appellant said, his account would have been that Mr Newnham had threatened to "smash" him, and that was why he had pushed him. Mr Newnham had tried to punch him and he had struck Mr Newnham, not behind the ear, but in the face. The appellant claimed that during a "walk through" re-enactment of events at the shopping centre, which took place after his recorded interview, he had informed the police that Mr Newnham had tried to punch him. That evidence was "transcripted" at the committal proceeding; he had also seen a transcript of it amongst the material in a brief of evidence; but it was not given at the trial.
[38]
[33] Mr Coburn, the appellant's solicitor, had taken notes of conferences with him and deposed to their accuracy. He explained that he had made extensive notes because it was evident early in their dealings that the appellant was "extremely erratic in providing instructions, taking advice and recalling details". A note of 14 March 2014, taken in a conference at the prison at which Mr Godbolt also attended, records the appellant's being told that his record of interview made it unnecessary for him to testify, and the appellant's being agreeable to that course. He was advised that the expert (presumably Dr Green) had confirmed that the recording skips did not seem to be due to interference, while Professor Duflou's report added nothing to what the Crown pathologist said. Reference was made to the mechanism of death as the twisting of Mr Newnham's head, not his hitting it on a hard surface. Accident and self-defence were said to be available.
[34] In a further visit, again with counsel, on 28 March 2014, Mr Coburn records the appellant's agreement that energy should not be expended chasing reasons for the missing parts of the footage, or why the claimed "walk through" did not appear in the evidence. It was important to show that it was the punch which caused death, not impact with a hard surface, the former being far more unlikely and less foreseeable. The note ends "Client happy with the direction we, and the trial, are moving".
[35] On the first day of the trial, 1 April 2014, there is a note of a conference between Mr Coburn and Mr Godbolt in the cells, apparently before the start of the proceedings, at which the trial process was outlined. It was explained to the appellant that there would not be many questions for a number of the witnesses, the essential evidence being his interviews and the pathologist's evidence. The appellant understood this approach. It seems likely that it was at this conference the "Plea of not guilty instructions", which is dated 1 April 2014, was signed. It confirms that the appellant wishes to plead not guilty, has been provided with the full copy of the brief of evidence, has had a number of conferences with his legal representatives and provided them with instructions, and desires to enter a plea of not guilty.
[36] There was a further conference at lunchtime on 1 April, at which the appellant was extremely agitated, not, apparently, because of any failure to give an opening address or to cross-examine Ms Meca, but because the prosecutor had referred in his opening to his being a police informant. The transcript of the proceedings records that that concern was raised with the trial judge after lunch in the absence of the jury, and there was an adjournment for an hour to enable the appellant's legal representatives to calm him and to take instructions about whether he wished to continue the trial with them as his representatives. His instructions were in the affirmative.
[39]
[41] Mr Godbolt had visited the appellant twice in prison, and could recall discussion of the experts' reports. Professor Duflou's report was discussed at the first conference with the appellant. In Mr Godbolt's view, Professor Duflou's suggestion of Mr Newnham slipping and falling independent of any action of the appellant was not open on the appellant's own instructions. Mr Godbolt explained here that there were two reasons for his not wishing to call Professor Duflou; the first was that the latter raised a mechanism of death which in his view was more likely to lead to a conviction than that which the Crown presented, and the second was that if the defence called a witness, the jury would tend to expect that the appellant also would give evidence. Mr Godbolt did not recall the appellant indicating that he wanted Professor Duflou called. He had spoken with Dr Green about the possibility that the recording had been tampered with. He could not now recall the exact conversation, but he was left with the understanding that nothing would be gained by obtaining the original footage.
[42] Mr Godbolt said that he could recall that at his first visit to the appellant on 14 March 2014, he indicated that his own initial view was that the appellant should not give or call evidence and the appellant was agreeable to that. There was a second visit on 28 March 2014, at which the appellant's belief that there was a recorded walk-through re-enactment of the assault was discussed. To explore that matter would have necessitated the appellant's giving evidence. There was, however, no reference to any such recording in any of the evidence and the appellant accepted that he should not pursue the matter. He had been frank in telling the appellant that he would make a poor witness, and the appellant had not at any time said that he wished to give or call evidence.
[43] On the second day of the trial, the appellant had re-agitated the question of whether the CCTV footage had been tampered with and the claim that there had been a "walk-through". Again, that raised the problem that those contentions could not be advanced without the appellant's giving evidence. By the end of that day, however, the appellant concurred with how the trial was being conducted and confirmed that he did not wish to give or call evidence.
[44] Mr Godbolt was asked whether he had told the appellant that if he gave evidence it would prolong the case, for which only five days were available. He responded that there was no concern about the duration of the trial; he had no other engagements; but in any event the trial would have taken as long as needed.
[40]
The failure to call the appellant to give evidence
[41]
[46] It was submitted for the appellant that his counsel's failure to call him to give evidence deprived him of the opportunity to outline to the jury his intention in striking Mr Newnham, and the nature of any threat that he felt from the latter, and to respond to the Crown's allegation that he had told a material lie when he claimed that the brim of a hat worn by Mr Newnham collided with his head. It was pointed out that there was a conflict between the evidence of Mr Coburn and Mr Godbolt as to whether the appellant had repeatedly said that he wanted to give evidence, and it was submitted that the discrepancy in accounts, in some unidentified way, detracted from the suggestion that there was a genuine forensic strategy underlying the decision not to call the appellant to give evidence.
[47] There is a divergence between the evidence of Mr Godbolt and Mr Coburn as to whether the appellant said (repeatedly) that he wished to give evidence, but it seems to me extremely improbable that it is the product of dishonesty on the part of either witness. Mr Godbolt identified three conferences (two before the trial, one during it) at which the disadvantages of the appellant's giving evidence were discussed. His perception was that the appellant was not asking to give evidence but, after discussion, accepting firm advice against doing so. Mr Coburn presents a different perspective; but he, as the solicitor, is likely to have borne the brunt of the appellant's complaints. It is evident from his notes that out of eight conferences with the appellant, before and during the trial, there were three at which Mr Godbolt was not present. It would be unsurprising if the appellant chose those occasions, in particular, to ventilate about the way the barrister was conducting the trial. And one rather suspects, having heard the appellant's tendency to go off at length on tangents, that Mr Godbolt, with his mind on the trial, may not always have been entirely attentive to what he was saying when he was airing his grievances.
[48] I accept in any event Mr Coburn's evidence that the appellant willingly signed instructions that he elected not to give evidence. Indeed, at the highest for the appellant, on his own account, there appears to have been an element of volition involved; in his affidavit he says that he had intended to respond to the question of whether he wished to give evidence by saying that "under legal advice" he had decided not to.
[42]
[54] The appellant asserts that counsel was incompetent in failing to adduce evidence in the form of Dr Green's and Professor Duflou's expert reports, which I take to mean that their evidence as foreshadowed in those reports should have been adduced. There is a practical obstacle to this argument. No affidavit from either gentleman was before the Court; their reports had only hearsay status; and it could not be known whether they would have adhered to what was contained in them had they given evidence. When that issue was raised with counsel for the appellant here, he assured the Court that the argument in this regard was limited to whether, having seen the two reports, the appellant's legal representatives should have made enquiries of the experts to ascertain what they could say.
[55] Mr Godbolt did in fact contact Dr Green, and nothing further was made of that aspect of the argument. In relation to Professor Duflou, however, notwithstanding counsel's acknowledgement of the limited use that could be made of his report, a written submission was subsequently made that the failure to adduce his evidence "deprived the appellant of a potentially valuable medical assessment that contradicted the opinion as to the likely cause of death offered by Dr Little".
[56] Overlooking for the moment the problem that it was not established that there was any evidence to adduce, the submission is an odd one, because Professor Duflou's report signally did not contradict any of Dr Little's findings and opinions. In particular, he agreed that the effect of oxycodone could have predisposed Mr Newnham to a rapid rotation of the head after a relatively minor blow, causing the tearing of the vertebral artery. What he did offer was an additional hypothesis: that after a scuffle which might not have involved a punch, Mr Newnham independently fell over, hitting his head against a shelf.
[57] This was a fine theory, but insofar as it suggested the possibility of a fall without any punch entailed, or a slip and fall caused by oxycodone intoxication rather than the punch, it bore no resemblance to the facts. Insofar as it perhaps suggested that a punch might have contributed to a slip and fall, with the injury being sustained when Mr Newnham hit his head, it availed the appellant not at all. For reasons already given, it was entirely rational for the appellant's legal representatives to conclude that the prospects of a jury accepting accident in the context of a singularly unlucky blow were much better than in the context of the very obvious consequence of Mr Newnham's falling and hitting his head. That case strategy seems, from Mr Coburn's notes, to have been thoroughly explained to the appellant. The decision not to explore matters further with Dr Duflou or to call him to give evidence was an entirely sensible one, and did not result in any miscarriage of justice.
[43]
[58] A statement from Ms Meca was put into evidence here. In it, she said that she looked down an aisle to see a male (Mr Newnham) "falling sideways and hitting the left side of his head on the shelves as he went down. He then hit the ground." The complaint was that not questioning her about this aspect of her statement meant that the jury did not hear evidence of Mr Newnham hitting the shelving. That argument has already been dealt with, and fails because of the rationality of the decision not to proceed on an argument that trauma in the fall caused the death, as opposed to a punch. There was no miscarriage of justice in the failure to cross-examine Ms Meca.
[44]
[59] At the outset of the hearing of the appeal, the appellant's counsel explained that the police had obtained the CCTV footage from the shopping centre cameras on a USB. His solicitors were in the process of getting access to the original CCTV footage in that form. It was not available at the close of the day's hearing, but counsel on both sides were given leave to make any necessary further submissions once it was available, and a copy of the footage on the device was supplied to the Court. Because it contained nothing additional to the footage before the trial court, the argument that a miscarriage of justice resulted from trial counsel's failure to obtain it came to nothing.
[45]
[60] It was said that the failure to make an opening statement to the jury prejudiced the appellant's case by depriving him of an early opportunity to outline his defence and creating a risk that the jury might conclude he had not given his lawyers instructions. Since I have already reached the view that a rational decision was made not to call the appellant to give evidence, neither of those contentions has any force. The Crown prosecutor in his opening explained that the real issue on the trial was whether the killing was unlawful and raised the defences of accident and self-defence. It is difficult to see that counsel for the appellant could usefully have added much by way of identifying the issues on the trial. However that may be, the appellant lost nothing through the lack of a defence opening statement.
[46]
[61] I do not consider that incompetence has been demonstrated in any of the respects alleged or that anything has been shown to be unfair about the appellant's trial. Nor was the jury's verdict unreasonable. I would dismiss the appeal against conviction.
[47]
Application for leave to appeal against sentence
[48]
[62] On being convicted of the manslaughter, the appellant pleaded guilty to a count of possessing a dangerous drug, methylamphetamine, in a very small amount: 1.8 grams. He was on bail for that offence when he committed the manslaughter. As at the date of sentence he had been in custody on remand for 748 days.
[63] The appellant was 39 years old when he committed the offence, and 42 at the sentence. His criminal history (from New South Wales) began when he was 13. His juvenile record consists mostly of car thefts, of which there are a considerable number, but there are also six counts of malicious injury. It appears that for most of his youth, he was on control orders or in juvenile detention. As an adult, the appellant seems to have spent most of the decade of the 90s serving short terms of imprisonment for offences of dishonesty, mostly break and enters and larcenies. There are few offences which could be characterised as violent: in 1997, the appellant was sentenced to a minimum term of one year for using an offensive weapon to prevent a police investigation; in 2000, he was sentenced to six months imprisonment for assault, concurrent with other sentences of the same length for larceny; and in October 2002, he was sentenced to six years imprisonment for robbery armed with an offensive weapon. In 2008, the appellant was sentenced to three years and nine months imprisonment on a count of aggravated break and enter. In 2011 he was sentenced to eight months imprisonment for escaping police custody, with release on parole after three months. That parole was revoked when he breached it by decamping to Queensland a couple of months before he killed Mr Newnham.
[64] Mr Godbolt submitted to the sentencing judge that the appellant's criminal history stemmed from his long-term addiction to drugs. He had spent about 12 years of his adult life in jail. The only serious offence of violence of which he had been convicted was the armed robbery. He was not ordinarily disposed to violence, and even in this incident he had struck Mr Newnham with his non-dominant hand. As to his background, counsel said that the appellant did not know his father, and his mother had died as a result of drug use when he was small. Raised by his grandparents, he had difficulty at school and was addicted to heroin by the age of 18, contracting hepatitis C as a result of his intravenous drug use. He had had some relationships and had had an interval of work, but when he lost that employment relapsed into drug use and crime. On remand in custody, the appellant had applied himself: various certificates and commendations were tendered. He had completed TAFE units in occupational health and safety and first aid, as well as prison programs directed to addressing addiction, mental health problems and recidivism, and had worked as a "buddy", assisting new prisoners.
[49]
[67] The prosecutor drew the judge's attention on the question of sentence to the decisions of R v Bojovic;[3]R v Tientjes; ex parte A-G;[4]R v Katia; ex parte A-G (Qld);[5]R v Dwyer;[6] and R v Simeon[7]. On this application, the respondent Crown referred again to R v Dwyer and also to R v Mooka[8] and R v Sebo; ex parte A-G (Qld)[9].
[68] In Bojovic, the appellant was convicted, after a trial, of manslaughter. He repeatedly punched a man who was very drunk and who had thrown a punch at him; he inflicted about five blows using "very considerable force". The victim's face and skull were fractured in a number of places. The appellant was sentenced to ten years imprisonment, with the automatic declaration of a serious violent offence. This Court, in considering the facts, noted the aggravating feature that the victim was obviously drunk; on the other hand, he was, nonetheless, the attacker, to whom the appellant had responded with a short, sharp and powerful reaction in excessive self-defence. He had not continued with the attack after the other man was helpless, and had shown concern for his victim and attempted to assist him. That appellant had what was described as a "fairly extensive criminal history" which included convictions for assault and assault occasioning bodily harm. He had, however, a good work history and there were references tendered for him.
[69] The Court held in Bojovic that a sentence of ten years was manifestly excessive in the circumstances; consistency with other authorities suggested a sentence in the order of eight years. It went on to consider whether a serious violent offence declaration was warranted. Such a declaration ought not be made unless it was reasonably consistent "with attaining the normal objectives of punishment"; a purpose for which it might be made was to protect the community from an offender. This was not a case where such protection was required; the danger of repetition was remote; and a sentence of eight years without any such declaration was an adequate punishment.
[50]
"This was not a case of manslaughter by some unlucky punch. This was a heavy, aimed blow to the head with a pool cue. Whatever the applicant's actual intention, that blow was bound to cause serious head injury."[10]
[51]
[78] In Sebo, the Attorney-General appealed a sentence of ten years imprisonment, with a declaration of a serious violent offence, imposed on the 28 year old respondent after a trial. He was charged with the murder of his 16 year old girlfriend, but convicted of manslaughter on the basis of provocation. The victim had taunted the respondent with claims of her sexual infidelity. He struck her repeatedly with a steering wheel lock, using what was described as severe force to cause head injuries. He then took her to hospital where he denied having caused her injuries but ultimately admitted his responsibility. This Court identified the worst features of the killing as its brutality, the youth and defencelessness of the victim, and the limited nature of the provocation which had triggered it. The mitigating factors were the respondent's relative youth, his cooperation and his lack of any previous criminal history. The sentence imposed might have been higher, but a sentence of ten years imprisonment was not inadequate.
[52]
[79] Counsel for the appellant here did not trouble the Court with authority, but simply asserted that, given that the single blow was of at most moderate force and the appellant had cooperated with police, giving "candid answers", and expressed remorse, the sentence was manifestly excessive. It was also submitted that Mr Newnham might have suffered his injury by colliding with the supermarket shelving and that it could not be found that Mr Newnham was attempting to move away from him at the time he was punched. Those suggestions, as well as the reference to the appellant's "candid answers" are contrary to the trial judge's express findings. Since there is no ground of appeal which alleges error in his Honour's findings, I propose to ignore them.
[80] However, one cannot help but think that the cases relied on by the Crown here were cited because they entailed sentences of ten years imprisonment, rather than because they concerned offences of similar gravity to the present one. As this Court emphasised in Dwyer,[11] one does not, in considering whether a sentence imposed is outside a proper exercise of discretion, approach the matter by comparing aggravating and mitigating factors as between cases, as if there were only one correct sentence which could have been imposed. But nonetheless, in considering appropriate punishment in manslaughter cases of this kind, there is a significant distinction to be drawn between cases of a modest single blow with unusual and fatal physiological consequences and those in which death results from a sustained beating; let alone those in which a weapon is employed in the beating. There is no suggestion here that the appellant anticipated that he would do even serious physical harm to Mr Newnham, let alone contemplated the possibility that he might be killed.
[81] The respondent here submitted that the appellant had shown callous disregard for his victim when he was "clearly seriously injured". I do not think that assertion can be made out. The sentencing judge found that the appellant had turned away after seeing Mr Newnham fall, but not that he did so with any particular understanding of the injury he had suffered. It is difficult to see how any such finding could have been made; at the highest the appellant could only have known that Mr Newnham had been knocked unconscious. There was no reason for him to apprehend the nature of the catastrophic injury in fact suffered.
[53]
[84] I would:
Grant the application to adduce evidence.
Dismiss the appeal against conviction.
Grant the application for leave to appeal against sentence.
Allow the appeal against sentence.
Vary the sentence imposed at first instance by substituting a sentence of nine years imprisonment with parole eligibility on 20 March 2017, while maintaining the declaration that the 784 days spent in pre-sentence custody between 20 March 2012 and the date of sentence (7 April 2014) was time already served under it.
[85] ATKINSON J: I have had the advantage of reading the reasons of Holmes JA and Applegarth J. I agree that the appeal against conviction should be dismissed for the reasons given by Holmes JA and endorse the remarks made by Applegarth J. There was no proper basis for the attack on the competence of the appellant's legal representatives, who gave the appellant the advantage of their considerable skill and experience in spite of the difficulties imposed by the appellant.
[86] So far as the application for leave to appeal against sentence is concerned, I agree with Holmes JA that the application should be granted and the appeal allowed. I agree with the sentence proposed by Holmes JA and with the reasons given by her Honour.
[87] APPLEGARTH J: I have had the advantage of reading the reasons of Holmes JA. I agree that the appeal against conviction should be dismissed for the reasons given by her Honour. I would only add that the appellant's challenge to the conduct of his legal representatives at his trial was devoid of merit. The appellant is an unreliable historian: both about the circumstances in which he killed Mr Newnham and about the circumstances surrounding his trial. He made unfounded allegations about the conduct and competence of his legal representatives at the trial. These allegations were contradicted by contemporaneous documents and the far more reliable evidence of his former counsel and former solicitor.
[88] Far from incompetently representing the appellant at his trial, the conduct of the appellant's legal representatives, including their sound advice about the disadvantages of the appellant giving evidence, ensured that the appellant had a fair trial. It is unfortunate that allegations of incompetence which had no proper foundation in evidence which might command acceptance were made and persisted in.
[54]
"You struck your victim a cowardly blow when he was unguarded. With no reason on his part to apprehend violence at your hands at that stage, he was effectively defenceless."
[55]
After describing the consequence of the appellant's unprovoked violence, the trial judge stated:
[56]
"Senseless violence such as you inflicted must be firmly discouraged. Courts must impose sentences calculated to deter an offender and others from committing such an offence and to make it clear that the community, acting through the court, denounces such senseless lethal aggression."
[57]
[91] I am not persuaded that a sentence of 10 years' imprisonment for the appellant's cowardly and unprovoked attack on a defenceless victim is manifestly excessive. This is not a case of a death that results from the use of excessive force in self-defence.[12]
[92] As the analysis of authorities undertaken by Holmes JA in this appeal shows, cases involving greater violence than the appellant inflicted on his victim may be found in which a sentence of 10 years' imprisonment was not disturbed on appeal. That, however, does not necessarily mean that a sentence of 10 years' imprisonment is manifestly excessive in the circumstances of this case.[13] The absence of a weapon did not compel a sentence of less than 10 years in the circumstances. Instead, if a weapon had been used it may have justified a sentence of more than 10 years.
[93] The appellant does not have the mitigating circumstance of being a youthful offender,[14] or having a previous good character or even a limited criminal history. He has shown no real remorse. He seems more sorry for himself than for his victim and his victim's grieving family.
[94] It is unnecessary to again review the authorities in this area, which were comprehensively reviewed by Holmes JA in R v Sebo, ex parte A-G (Qld).[15] I note that the authorities which were reviewed in R v Sebo were not confined to cases where the partial defence of provocation reduced the offence from murder to manslaughter. Previous authorities provide an important guide to what an appropriate sentence was in this case, and whether the sentence of 10 years' imprisonment can be said to be manifestly excessive.
[95] I respectfully agree with Holmes JA at [81] that one must be wary of allowing the fact that the appellant is not a person in whom redeeming features are evident to distract from the proportions of the actual offence. One should not be distracted from the fact that the killing in this case was from a single blow of moderate force. Still, it was a blow that could and did kill when directed to the side of the head of a victim who was not expecting it, and who therefore was unable to brace for it or avoid it.
[96] The circumstances of the offence and the appellant's personal circumstances called for a sentence which punished the appellant to an extent that was just in all the circumstances, and which made it "clear that the community, acting through the court, denounces the sort of conduct in which the offender was involved". The need for denunciation was particularly important. The essential facts are that a drug-affected, mature-aged man with a lengthy criminal record has taken the life of another human being in a cowardly and unprovoked attack. A sentence of 10 years' imprisonment, with an automatic non-parole period of eight years, was appropriate to denounce that sort of conduct.
[58]
"The principles according to which an appellate court may interfere with such a discretionary judgment by a sentencing judge are well established. ... Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice."
[59]
[98] Guidance from previous authorities leads me to conclude that a sentence of at least nine years, with parole eligibility after at least five years, was an appropriate sentence. In my view, the sentence of 10 years was an appropriate one, and the automatic requirement to serve at least eight years' imprisonment did not render the sentence unjust or excessive.
[99] Because the appellant has not sought to identify any specific error in the sentence which was imposed, the following statement of principle is relevant:
[60]
"[59] As on appeal from discretionary decisions, it will sometimes not be possible to identify, with exactness, an error of the foregoing kind; yet the result that is challenged may be so manifestly unreasonable or plainly wrong that the appellate court will be able to infer that, in some unidentified way, there has been a failure to exercise the power properly. In appellate review of sentencing, it will commonly be the case that the appellate court's authority to intervene will derive from a conclusion that the resulting order is so disproportionate to the matter to which it relates as to afford the foundation for concluding that, in some way, the exercise of the powers of the primary judge has miscarried.
[61]
[60] The existence of this residual basis for appellate intervention is well established. In fact, it is inherent in the provision by statute of a facility to appeal against sentence to a court of criminal appeal. It enables such a court to correct 'idiosyncratic views' of individual judges about punishment for particular crimes or types of crime and to replace a sentence that is manifestly disproportionate to the circumstances. Such disproportion can arise where the punishment imposed is considered to be plainly excessive."[19]
[62]
[100] I am not persuaded that the punishment imposed was excessive. I would not interfere with the trial judge's exercise of discretion, and would refuse the application for leave to appeal against sentence. I agree with the orders proposed by Holmes JA in respect of the appeal against conviction.
[5] In cross-examination, Dr Little accepted, firstly, that traumatic rupture of the vertebral artery was a rare cause of death "in the overall scheme of things" and, secondly, that it was an unusual occurrence for a single blow with a hand or fist to tear the vertebral artery. There were a number of variables which could come into play: how the victim's head moved, what drugs he had in his system, and what stage of the cycle his heartbeat was at, because an artery full of blood was more susceptible. The blow necessary to cause head rotation did not have to be significant or heavy; it would be reasonable to describe the level of force required to cause the damage which she had documented as "mild to moderate". The fact that that the appellant's hands were undamaged also indicated that the punch was not a particularly strong one. She agreed, more generally, that death from a single blow to the head was unusual.
[9] The appellant summarised their physical contact as follows:
[23] On the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that all of the excuses and defences left for their consideration had been excluded and accordingly to be satisfied of the appellant's guilt.
[31] Asked whether there would not be some difficulty in his giving evidence that he had hit Mr Newnham in the face, after having told the police he did not know exactly where he hit him, the appellant said, unresponsively, that he did not want to make allegations in the interview about Mr Newnham throwing punches, because that would make him look like a police informant, and he had not at the relevant time appreciated how serious the matter was. The appellant alleged that his punching Mr Newnham in the face could be seen in the video footage, and there was a still photograph taken from the footage which showed that occurring. (It should be said at this point that the video footage does not show a punch to Mr Newnham's face, and although the appellant's legal representatives were invited to draw the Court's attention to any still photograph fitting the description the appellant had given, none emerged.)
[32] The appellant also claimed here to have "definitely" seen Mr Newnham fall into a display rack and hit his head on a shelf before ending up on the floor. Mr Godbolt had never told him, he said, that it was better not to proceed on the basis that Mr Newnham might have hit his head on a shelf. He was "dumbfounded" when Ms Meca was not cross-examined on a statement in which she had referred to seeing Mr Newnham hitting the left side of his head on a shelf as he fell.
[37] On the second day of the trial, however, Mr Coburn's notes of a morning conference record the appellant asking why Mr Godbolt had not given an opening to deny the suggestion that he was a police informant. It was pointed out to him that the reference to his being an informant came from his own record of interview and there was no basis for seeking a suppression order. The notes indicate that the appellant then raised issues which had been resolved on previous occasions. Mr Coburn reminded him that it had been agreed that they would rely on his record of interview and the pathologist's evidence, and that he had agreed that he would not call or give evidence. Mr Coburn pointed out that if the appellant had lost confidence in his legal representatives, they could withdraw, but the appellant said he wished them to continue to act.
[38] At lunch time that day, Mr Coburn had another conference with the appellant, this time with Mr Godbolt in attendance. They confirmed the tactics that he would not give evidence and would not pursue conspiracy theories. Mr Godbolt advised the appellant that he would be a poor witness, giving the impression of being evasive. There was a third conference after court at which the appellant apologised for his earlier behaviour. He expressed his agreement with the way in which the trial was being conducted.
[39] On the third day of the trial, 3 April 2014, according to Mr Coburn's notes and evidence, the appellant was provided with and signed the documents headed "Instructions in relation to evidence" and "Statement of facts accepting the Crown's case". The "Statement of facts" says that the appellant is aware of the Crown evidence and does not wish to contest it. The "Instructions" document sets out the appellant's understanding that he has the options of giving or calling evidence, or combinations of the two, or doing neither. The document says that, having considered advice that by giving evidence he would render himself liable to cross-examination and by going into evidence would lose the advantage of last address, the appellant elects to neither give nor call evidence. According to Mr Coburn's notes, the appellant signed both sets of instructions, expressing no reservation.
[40] Cross-examined, Mr Coburn confirmed that the issues of the appellant's wanting to give evidence and wanting Ms Meca questioned and Professor Duflou called recurred throughout conferences with him. The appellant had nonetheless accepted his legal representatives' advice as to those matters. Mr Coburn did not remember any heated discussion about the appellant's wanting to give evidence, and would have noted it if it occurred. He said that he had formed the view that the appellant would have made a "terrible" witness. The appellant had not been told the trial could only go for five days because of Mr Godbolt's other professional commitments. He had not given instructions that he wanted an opening address, but had asked whether one would be made and been told it would not.
[45] Mr Godbolt denied that the appellant had asked him to make an opening statement. However, at lunch time on the first day of the trial, he was agitated about the indication that he was a police informant, and on the second day he had complained of a perceived failure to give an opening in which it was emphasised that he was not an informant. Mr Godbolt denied that the appellant regularly complained about the failure to call Professor Duflou, about the failure to ask questions of Ms Meca and about his not being called to give evidence. On the other hand, the appellant continued to bring up the theory that the video tape had been meddled with.
[49] The circumstances in which the appellant came to elect not to give evidence are not, in any event, of real moment. Other than in exceptional cases, whether a forensic decision has caused an unfair trial is to be determined on an objective basis.[2] The appellant was an unconvincing and irritating witness. He was either unable or unwilling to give a direct answer to questions, and was given to descanting instead on his own woes and the deficiencies of the investigating police and his former legal representatives. The prosecutor would have had a field day cross-examining him about the implausible advances in his recollection of events as between his accounts to police and his evidence (assuming it to have reflected what he said here), and his even more implausible explanations for those variations.
[50] The appellant's explanation for not telling the police that he had hit Mr Newnham in the face, rather than in the mastoid area, was that he did not want to be perceived as an informant; which made no sense at all. It might have made some sense in relation to his failure to allege that Mr Newnham had thrown a punch at him before he struck him; except that he had readily told the police that Mr Newnham had attempted to head butt him and that after he, the appellant, had hit him, Mr Newnham threw a punch. The claim of a later "walk through", at which he revealed the important detail of the additional and earlier punch from Mr Newnham would, no doubt, have produced difficulties for the defence in the necessary implication that there was a police attempt at suppression of important evidence and the absence of any evidence at all to support that allegation. The jury would have looked in vain on the CCTV footage to see the part which on the appellant's assertion showed his left jab connecting with Mr Newnham's face. His claim that he had no idea that the allegation was of a punch to the area of Mr Newnham's mastoid bone until he heard it at trial might also have produced some incredulity.
[51] In evidence here, the appellant added a threat (that Mr Newnham said he would "smash" him, resulting in his pushing him) not previously mentioned at any stage. Apart from its late introduction, that claim seems unlikely to have impressed a jury, particularly given that immediately before the push Mr Newnham had his back to the appellant. Having told police that he did not know whether Mr Newnham had struck anything as he fell, although he "thought" he was "going forwards to the shelf", the appellant confidently asserted here that he had seen Mr Newnham fall into the shelf and hit his head; again raising the spectre of recent invention.
[52] Finally, the appellant's readiness to deny on oath that he had signed the documents "Instructions in relation to evidence" and "Statement of fact accepting the Crown's case", presumably because he (accurately) perceived them as detracting from his claims, while being prepared to accept his signature on the document "plea of not guilty instructions", gives the distinct impression that had he given evidence, he would likely have presented as a liar, and not a very intelligent one.
[53] Not calling the appellant to give evidence was, objectively speaking, an entirely rational and prudent decision. His testifying would have done nothing to improve his prospects; quite the reverse. His not giving evidence did not result in any unfairness in the trial.
[65] In a short and dignified victim impact statement tendered at the sentence hearing, Mr Newnham's family noted that he had not always made wise decisions, but his life had been taken unexpectedly by a single punch. He would be remembered as a "son, father, brother, uncle, nephew, grandson and friend". In the course of the sentence, the appellant was permitted to address Mr Newnham's family. He expressed sorrow for their loss and asked for their forgiveness. He also pointed out that without his cooperation the Crown would not have had the evidence necessary to make the case against him.
[66] The sentencing judge found that the appellant had decided to hurt Mr Newnham in anger and frustration at the latter's refusal to accept his assertion that he was not an informant. He was apprehensive that his sources of drug supply were at risk. As Mr Newnham moved away, the appellant had punched him with a clenched fist on the right side of the head near the back of the ear. The punch was delivered with his non-dominant left arm, "with up to moderate force". The appellant's intention was to punch Mr Newnham in the head, a part of the body which he would have realised was vulnerable. It was a cowardly blow, struck while Mr Newnham was unguarded and defenceless. The result was the rotation of Mr Newnham's head, producing the subarachnoid haemorrhage which caused death. Having seen Mr Newnham fall, the appellant had walked away and left others to assist him. It was to the appellant's credit that he had cooperated with the police, but he had not been entirely candid in doing so, fabricating his account of feeling threatened and having Mr Newnham's hat come into contact with his face.
[70] In R v Tientjes, the 36 year old respondent to the Attorney General's appeal had been convicted of manslaughter after a trial and sentenced to four and a half years imprisonment. He had killed his victim, with whom he had previously been friendly, after leaving a bar with him. How precisely the latter had died was not clear, but he had extensive injuries in the form of bruising and abrasions over his arms, upper body and face, and had died from a subdural haematoma consistent with either a kick to his head or hitting his head on the pavement. The sentencing judge proceeded on the basis that the respondent had retaliated against a single blow from the deceased with a number of punches, in an attack which continued when his victim was on the ground; his Honour did not, it seems, find there had been a kick. The respondent had only one prior conviction for assault occasioning bodily harm some years earlier and had had a good work history. This Court compared the circumstances with those in Bojovic, noting that the severity of the attack was greater in that case, the applicant there had a more serious history of previous violence and his victim was obviously drunk. The sentence imposed at first instance was set aside for one of seven years imprisonment. For similar reasons to those given in Bojovic, the Court did not make a serious violent offence declaration.
[71] Katia was also an Attorney General's appeal, but it involved an 18 year old respondent without prior convictions. He had pleaded guilty to the manslaughter of another young man. The victim was lying, hopelessly intoxicated, on a bus seat in the early morning when the respondent, with a friend, stole his telephone. The respondent then returned, punched him and stole his watch. The mechanism of injury was precisely that in the present case: a blow behind the ear had ruptured the vertebral artery with a resulting basal subarachnoid haemorrhage. Three days later, after photographs taken from CCTV footage were broadcast, the respondent identified himself as one of the men shown, but initially gave a false account of how the deceased sustained his injury before admitting that he had punched him. He told police that he was drunk but in control and knew what he was doing. He was sentenced to eight years imprisonment, with a recommendation for parole eligibility after three years.
[72] The Attorney General's contention in Katia was that a sentence of ten years imprisonment should be substituted because the killing involved acts of violence and dishonesty against a blameless and defenceless victim, while the respondent had not been immediately remorseful or fully cooperative. This Court held that the primary judge had properly weighed the various mitigating and exacerbating features of the case and arrived at a sentence within a proper exercise of discretion.
[73] In Dwyer, a sentence of ten years imprisonment for manslaughter, where the applicant was convicted on his own plea of guilty, was upheld. The applicant was living at his employer's house. In a state of considerable intoxication, he became involved in an argument with the man, who threw some objects at him without hitting him. The applicant knocked the other man down with a punch and then kicked him several times. The victim suffered multiple severe facial fractures and traumatic shock, dying of cardiac arrest precipitated by the assault. The applicant left him as he lay unconscious, and after smoking a cigarette returned to see that he was not breathing. In telephone calls with a former girlfriend and his father, he was advised to call an ambulance, but refused to do so. He threatened his ex-girlfriend with retribution if she told the police anything of what he had said. Ultimately, at what must have been at least an hour after the applicant had observed that his victim was not breathing, his father arrived and insisted on an ambulance being called. When it arrived, the applicant gave a false story about finding the deceased unconscious, but later admitted his role in the death.
[74] The applicant in Dwyer was 22 years old, but had a significant criminal history which included arson, breaking and entering and assault of a juvenile causing bodily harm. As well as manslaughter, he was sentenced for assault and going armed so as to cause fear (he had used a knife to threaten a neighbour who was in her yard with her children) and for dangerous operation of a motor vehicle, during which, while drunk, he had collided with a pedestrian and driven off. This Court, dismissing the application for leave to appeal against sentence, distinguished the case from others in which sentences of eight or nine years had been held appropriate, by reason of the applicant's persistence in the attack on the deceased and the callousness of his conduct. The applicant had savagely mistreated a man who had treated him kindly by giving him a home and a job, and had responded to having rendered his victim comatose with callous indifference, which was of a piece with other offences he had committed. This was not a remorseful offender who did not pose any threat to the community; and community protection was a strong element in the exercise of the sentencing judge's discretion.
[75] R v Simeon, the last of the cases referred to at first instance, concerned an application for leave to appeal against sentence by a man who had pleaded guilty to manslaughter and been sentenced to seven years and six months imprisonment. He had wrongly gained the impression that his victim had hit his, the applicant's, son. He head butted, punched and kicked the other man and was seen still punching him in the face as he lay on the ground. The cause of death was a blow behind the right ear which had caused subarachnoid bleeding. The medical opinion was that the force applied was only moderate; no more was needed in the case of a heavily intoxicated victim to produce the lethal result. The applicant, who was 27, had a good previous record including service in the armed forces. It was accepted that he had experienced great remorse and depression because of what he did. This Court held that the mitigating circumstances had not sufficiently been reflected in the sentence, given the absence of any recommendation of parole. While maintaining the head sentence of seven years and six months imprisonment, it added a recommendation for consideration for parole after two years and nine months.
[76] The relevance of the two additional cases relied on by the respondent Crown here, Mooka and Sebo, is less obvious. In Mooka the applicant pleaded guilty to manslaughter and was sentenced to ten years imprisonment, with concurrent terms of six months being imposed in respect of two counts of assault occasioning bodily harm. He had been playing pool at a club with the man he killed, who said something to which he took exception, for unexplained reasons; the sentencing judge found that the applicant's violent response was gratuitous. He confronted the other man, before, with deliberation, moving some distance round the table to obtain a pool cue, returning to the victim and using it to strike him once to the side of the head with it. The action was described as "a full swing" which delivered "a mighty blow to the head". The deceased man suffered a fractured skull and bruising and bleeding in the brain. After that action, the applicant continued his aggressive behaviour, abusing other patrons, swinging a metal framed chair about and challenging others to fight. As he was being ushered out of the club he punched a security officer in the throat and then went to a hotel where he immediately punched a complete stranger in the back of the head.
[77] The applicant in Mooka had what was described as a "bad criminal history" which included a number of offences of assault and assault occasioning bodily harm. He was 25 years old. This Court held that the sentence appropriately marked the significant features of a vicious, unprovoked and deliberate attack with a weapon; its having caused the death of the victim; and the applicant's bad prior criminal history. As to the differences between the circumstances of that case and the present one, I note that in Mooka, in agreeing that the sentence was within a proper exercise of discretion, I observed
[82] The appellant's criminal history was against him so far as his prospects of general rehabilitation were concerned, but it did not contain any like offences of actual violence. The community would have reason to be concerned about the appellant's propensity for dishonesty, but protection from similar acts of physical violence by him did not loom large as a sentencing consideration in this case. Certainly, he was not a person in whom redeeming features were evident, but one must be wary of allowing that fact to distract from the proportions of the actual offence.
[83] Having regard to the cases cited at sentence as a guide, I have concluded that a sentence of ten years imprisonment, with the associated declaration of a serious violent offence, was manifestly excessive for this manslaughter, which entailed only a single blow of, at most, moderate force, delivered with the non-dominant hand. On the other hand, one must take into account the facts that the perpetrator was an individual with a long history of criminal conduct; the incident occurred in a public place; and the victim was an unsuspecting man who was walking away at the time. The application for leave to appeal against sentence should be allowed, and the sentence varied by substituting a sentence of nine years imprisonment. The nature of the offence is not such as to require its declaration as a serious violent offence. In my view, an appropriate course, in light of the appellant's history, is to set a parole eligibility date after he has served five years of the sentence. It may be that if he maintains the good behaviour he had exhibited in custody to the date of the trial, he will then be considered suitable for release; but that is a matter for the parole authorities.
[89] As for the application for leave to appeal against sentence, I do not agree that the sentence is manifestly excessive.
[90] The appellant does not submit that the learned sentencing judge failed to take account of relevant matters or made any other specific error. Instead, he submits that, in the light of the individual features of the incident and his record, the sentence is manifestly excessive. The circumstances of the offence and the appellant's record have been described by Holmes JA. The learned trial judge found that the appellant intended to punch his victim in the head, a part of the body which, as the appellant must have realised, is highly vulnerable. He observed:
[97] That some, perhaps many, other judges may have imposed a sentence of less than 10 years does not make the sentence in this case excessive, let alone manifestly excessive. It is not as if there is only one correct sentence.[17] The sentence which was imposed in this case was open as a matter of discretionary judgment. In Lowndes v The Queen[18] it was stated: