R v T Y [2006] VSCA 113

Court of Appeal (Vic)|2006-05-24|Before: WARREN, C.J., BUCHANAN and VINCENT, JJ.A.

Criminal law - Murder - Reckless murder - Jury to be instructed as to distinction between inadvertent and advertent negligence - Consciousness of guilt - Degree of culpability cannot be determined by conduct exhibiting consciousness of guilt - Open to jury to find mental element to establish murder - Retrial ordered.

Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions

1 Subject to some additional observations I would make, I agree substantially for the reasons of Buchanan, J.A. that the appeal should be allowed and the matter remitted for retrial.

2 Grounds 1 and 2 addressed the adequacy of the directions on reckless murder. In my view, the jury would have more assisted by a description of the ingredients they must find to be satisfied as to the state of mind of the accused as set out in Pemble v. R.[1] When the trial judge directed the jury "...you are not dealing with the state of mind of the accused...",[2] the "firm emphasis" on the accused's actual state of mind as described by Barwick, C.J. in Pemble was jeopardised. In my view, a jury in the circumstances of reckless murder should be directed that they must be satisfied beyond reasonable doubt that:

The accused caused the death of deceased.

The accused ought and must have foreseen the consequences of the act contemplated; and further that,

In assessing foresight, what a reasonable person might have foreseen is relevant but the accused's actual state of mind is critically important and they should not treat what they think a reasonable person's reaction would be in the circumstances as decisive of the accused's state of mind.[3]

In assessing the accused's state of mind the accused's circumstances are relevant (such as age, background, educational and social circumstances, emotional state and state of sobriety).

3 For the reasons explained by Buchanan, J.A. those directions were not given.

4 There was complaint that in the circumstances of this case the directions on reckless murder and unlawful and dangerous act manslaughter were given separately and interposed by other important directions and, also, after an overnight adjournment. The circumstances of each trial will vary and ultimately it is a matter for the trial judge as to the manner of delivery of the charge. For my part I would be hesitant to criticise a trial judge as to the order of the charge or the timing of the particular directions such as on manslaughter. The order will turn ordinarily on the circumstances of the case. I would have some hesitation, also, in accepting the submissions on grounds 1 and 2 so far as they relate to the lack of a summary of the evidence by the trial judge. Examination of the charge reveals that the trial judge identified six matters to be considered by the jury on the alternative verdict of manslaughter by dangerous and unlawful act[4] (accounts of witnesses, the deceased's injuries, the weapon, its use and number of times of use, the motive and the post offence conduct). The complaint was that there was neither a summary of the evidence nor direction on how the evidence bore upon recklessness. The submission needs to be considered in the context of a trial of a relatively short duration where there was only short cross examination and where the judge provided the jury with the playing of the recording of witnesses' evidence on request. The latter facility was accompanied by a table of witnesses provided by the judge without exceptions being taken. However, the issue is that once his Honour gave the directions on reckless murder that he did, error was made and it is unnecessary to consider grounds 1 and 2 further.

5 Grounds 3 and 4 were concerned with the treatment of consciousness of guilt. At the time of the trial, this Court's judgment in R. v. Heyes[5] had not been decided. Since that judgment, the law is resolved and the trial below did not apply the law as now decided. On the basis of R. v. Heyes, error is made out in this matter.

6 Grounds 5, 6 and 7 are disposed of in the reasons of Buchanan, J.A.

7 The applicant seeks leave to appeal from a conviction for murder after a trial in the Supreme Court. The applicant was sentenced to be imprisoned for a term of 14 years with a minimum term of nine years.

8 On 21 October 2003 Christopher Williams ("the deceased") was 18 years' old. He had just finished year 12 at school. He and four friends, who had also finished their schooling, celebrated by meeting at a hotel in Essendon at 10.30 a.m. They left the hotel at 3.00 p.m. and went to a tram stop. The applicant, who was 14 years' old, and three of his friends were also at the tram stop. The applicant was carrying a large umbrella with a long steel point.

9 The deceased's group included a girl who had cut her school dress into a short skirt. According to the evidence of the deceased's friends and others who were in the vicinity of the tram stop, the applicant, in a voice audible to the deceased's group, called the girl with the short dress "a disgrace". The deceased remonstrated with the applicant, who responded with an aggressive remark and struck the deceased twice in the head with the steel tip of the umbrella in an action described by one witness as "a javelin motion, like a spear." Another witness said that it appeared that the applicant was thrusting the umbrella "as hard as he could, like he really wanted to hurt him with it." Others described the second thrust as "excessive", "extreme" and that the applicant "really rammed it". The umbrella tip penetrated the deceased's skull and his brain. The deceased fell to the ground. The deceased's friends attracted the attention of police in a nearby car and called an ambulance.

10 The deceased was taken to hospital in a coma and died two days later. The neurosurgeon who treated the deceased said that the injury caused by the umbrella required either an accelerated stab or a significant degree of force. The deceased's skull at the point of penetration was unusually thin.

11 Immediately after striking the deceased the applicant boarded a tram. A police car with lights flashing and siren sounding approached the tram. The applicant took off his jacket and cap, threw them on the floor of the tram and left the tram and ran down an alley, throwing the umbrella over a backyard fence as he ran.

12 The applicant did not give evidence and no evidence was called on his behalf.

13 It was not in issue that the deceased's death was caused by the blows struck by the applicant. Nor was it in issue that the blows were both unlawful and consciously inflicted. The principal issue in the trial was whether the prosecution had established the requisite mental element to constitute murder or whether the applicant was guilty of manslaughter by an unlawful dangerous act. Provocation was also in issue, but not prominently.

14 The first two grounds of the application complained of the inadequacy of the directions given to the jury by the trial judge with respect to the Crown's contention that the mental element for murder in this case was satisfied by the applicant's realisation that death or really serious injury was a probable consequence of his act in stabbing the deceased and his reckless indifference to that result.

15 The danger to which resort to the concept of reckless murder gives rise is that the jury may conclude that the accused contemplated death or really serious injury as a probable consequence of his or her actions because they thought that was what a reasonable man, or the jury themselves, would foresee. In Pemble v. R..[6] Barwick, C.J. warned against the ease with which the lay mind could pass from inadvertent negligence to advertent negligence and said:

"The state of mind of the accused is rarely so exhibited as to enable it to be directly observed. Its reckless quality if that quality relevantly exists must almost invariably be a matter of inference. Although what the jury think a reasonable man might have foreseen is a legitimate step in reasoning towards a conclusion as to the accused's actual state of mind, a firm emphasis on the latter as the facts to be found by the jury is necessary to ensure that they do not make the mistake of treating what they think a reasonable man's reaction would be in the circumstances as decisive of the accused's state of mind. They need also to be reminded that the accused's circumstances are relevant to the decision as to his state of mind; for example his age and background, educational and social, his current emotional state and his state of sobriety. They should be expressly told that they need to be satisfied beyond any reasonable doubt that he must have foreseen, and in that sense did foresee, the consequences of the act he contemplated."

16 In the present case the trial judge said to the jury that the applicant was guilty of murder if he intentionally committed an act that proved fatal knowing that it would probably cause death or really serious injury. Later in his charge he told the jury that "dangerous" in the crime of manslaughter by an unlawful and dangerous act "means what a reasonable person finding himself in the same position as the accused would consider exposed the victim to an appreciable risk of serious injury." He added:

"It is an objective not a subjective test. It is not what the accused might have thought dangerous, you are dealing not with the state of mind of the accused, but with an objective assessment of what a reasonable person would assess as being dangerous in that situation."

17 In my view those directions were deficient in that the trial judge failed to expressly distinguish between the mental elements of reckless murder and manslaughter by an unlawful and dangerous act. The trial judge's description of the elements of murder by a reckless act and manslaughter by an unlawful and dangerous act were separated by directions as to the relevance of motive, an account of the evidence relevant to the question of intention and directions as to conduct alleged to exhibit consciousness of guilt and provocation. They were also separated by an overnight adjournment. In my view a contrast should have been drawn between the mental states required for reckless murder and manslaughter by an unlawful and dangerous act. The jury should have been warned not to conclude that the applicant foresaw the probability of death or really serious injury because they thought a reasonable man would have appreciated the same danger.[7]

18 The trial judge was also obliged to relate the law concerning reckless murder and manslaughter by an unlawful and dangerous act to the facts so that the jury was assisted in determining whether the elements of either of the alternative crimes had been established. In the course of his charge his Honour said:

"When you consider the question of intention you should look at, and I will just name six matters and repeat them: the accounts of the witnesses as to was what said and done before and at the time of the act - the use of the umbrella. That is one. Two is that you look at the injuries to the deceased. Three, you look at the object that was used as a weapon, namely the umbrella. Four is you look at the use of it in various ways, including the fact that it was, on most of the evidence if not all of the evidence, used twice. The fifth is the matter of motive. The sixth is the conduct of the accused after the events ... "

"You have heard the arguments put to you as to those matters from (the prosecutor and defence counsel)."

19 The trial judge summarised aspects of the addresses of counsel, but he did not give any assistance to the jury as to the ways in which they could use the evidence relating to the six matters he identified or how that evidence bore upon the question of intention. In my view more was required. The trial judge should have identified the inferences which could have been legitimately drawn from the evidence.

20 Grounds 3 and 4 were based upon the trial judge's treatment of the conduct of the applicant said to exhibit consciousness of guilt. That conduct consisted of the applicant throwing his cap and jacket on the floor of the tram, running from the tram and throwing away the umbrella. His Honour said that the relevance of the evidence was that it could show "a consciousness of guilt going to the requisite intention of murder." He said:

"Does the conduct support an inference as to the requisite intention for murder because it would not suffice that the only inference that was warranted from the conduct was that the accused acted as he did because of an awareness that he had been responsible for some wrongdoing but wrongdoing short of murder. The behaviour must be seen to have stemmed from a realisation of guilt of murder and not just from a realisation that he had or might have unintentionally caused the death of the deceased."

21 In my view the evidence was logically incapable of supporting an inference that the applicant had formed the requisite intention to constitute murder. The question should not have been left to the jury. The evidence could equally be explained as exhibiting a consciousness that the applicant had caused the death by an unlawful act. In R. v. Heyes[8] this Court held that generally evidence of conduct said to display a consciousness of guilt was not relevant where the issue was whether the accused performed acts leading to the death of another with an intent to kill or inflict really serious injury on the one hand or performed an unlawful and dangerous act causing death on the other hand. The evidence logically could not found a conclusion that the accused was guilty of one crime rather than another.

22 An associated complaint was that the trial judge erred in telling the jury that they could look for other evidence that might exhibit consciousness of guilt. His Honour said:

"Now you may think that some other item of conduct other than the three that I have mentioned might be seen as justifiably demonstrating some consciousness of guilt, that should be unlikely because you should assume that (the prosecutor) would have raised any matter if it was going to potentially satisfy these criteria, but if you were to think that there was something else you would have to subject it to the same close scrutiny that I have referred to."

23 As the prosecutor did not rely upon any other evidence as exhibiting consciousness of guilt I think it was inappropriate for the trial judge to invite the jury to look for evidence for that purpose. In any event, as it does not appear that there was other evidence which could be said to exhibit a consciousness of guilt, the trial judge's invitation may have led to faulty reasoning on the part of the jury.

24 The final ground of the application was that the jury's verdict was unreasonable for it was not open to the jury to find beyond reasonable doubt that the applicant acted with the requisite intent for murder. Accordingly, it was said, this court should quash the conviction for murder and direct an acquittal for that offence.

25 Counsel relied upon the following matters to establish the ground:

• The age of the applicant when the death occurred, his lack of maturity and foresight and the possibility that he lacked a full appreciation of the consequences of his actions;

• The limited time for the applicant to engage in any consideration of the possible consequences of his actions before he used the umbrella;

• The impulsive and thoughtless manner in which the applicant conducted himself with the umbrella;

• The speed with which the applicant lifted and thrust the umbrella towards the deceased;

• The position on the skull of the deceased penetrated by the umbrella;

• The unusual thinness of the skull of the deceased penetrated by the umbrella and the comparative ease with which the umbrella could penetrate the skull;

• The comparatively limited amount of severity of the force used by the applicant in thrusting the umbrella towards the deceased.

26 In my opinion those matters, while they might be used to arrive at a verdict of not guilty of murder, do not compel that result. The umbrella with its projecting steel point constituted a formidable weapon. The applicant aimed that weapon at the deceased's head. He made repeated thrusts with the weapon. There was evidence that those thrusts were forceful and exhibited malice. Accordingly, I would not conclude that the jury's verdict was not open on the evidence.

27 There were, however, in my view defects in the trial judge's directions to the jury to which I have referred, which I think constituted a miscarriage of justice. I would grant the application, allow the appeal and order that the applicant be retried.

28 I agree for the reasons advanced by Buchanan, J.A. that this application should be granted, the appeal allowed and a re-trial ordered.

[1] [1971] HCA 20; (1971) 124 CLR 107, 120.

[2] As adverted to by Buchanan, J.A. at para [16].

[3] Pemble v. R., ibid.

[4] At Tp. 395-6.

[5] [2006] VSCA 86.

[6] [1971] HCA 20; (1971) 124 C.L.R. 107 at 120.

[7] Cf. R. v. Aiton (1993) 58 A.Crim.R.578.

[8] [2006] VSCA 86.

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