Regina v Goff

GROVE J IRELAND J ADAMS J

1 GROVE J : This is an appeal against conviction of manslaughter following a trial before Karpin DCJ at Parramatta District Court. After conviction the appellant asked to be taken into account on sentence two offences, respectively of assault occasioning actual bodily harm and breaking entering and stealing. There was also presented against the appellant a second indictment, to three counts of which, charging assault occasioning actual bodily harm, assault and possessing a shortened firearm, the appellant pleaded guilty. These pleas of guilty were accepted by the Crown in discharge of all counts in that indictment. Karpin DCJ dealt with both indictments and the matters taken into account contemporaneously and application is made for leave to appeal against the sentences ultimately imposed. 2 I turn first to the appeal against conviction. A short summary of facts will suffice. At about 6 am on 2 December 1995 a person engaged in recreational running passed a house in Baulkham Hills and observed a body lying supine in the front lawn with feet pointing towards a carport. Police were called and later a government pathologist Dr Ellis attended the scene. External examination revealed injuries to the face including a small hole in the middle of the forehead and bruising to both eyes, more severe to the right eye. 3 Dr Ellis later performed a post mortem and established the cause of death as bleeding into the abdomen. He found significant damage in that area which included a frank partition of the pancreas and multiple rib fractures. Dr Ellis expressed the opinion that a significant degree of force would have been required to achieve the degree of damage to the pancreas. Blood analysis showed that the deceased had a blood alcohol of 0.378 per percent. 4 Police enquiries identified two persons at the house. They were, Miss Patsy Beeken the resident and the appellant. When asked what happened the appellant said "Yeah, Bernie (the deceased) wouldn't leave when Patsy and I asked him to. He threw a few punches and I threw a few at him". The appellant gave evidence at his trial. At no time did he dispute that there had been a fight between himself and the deceased. He described exchanging punches inside the house and continued fighting when they went outside. He told police that the last time he saw the deceased he was walking down the driveway, directing verbal abuse back at him. It might be mentioned that, given the injuries which he detected, Dr Ellis had thought it unlikely that the deceased would have lost consciousness immediately. Enquiries revealed he had been involved in a traffic accident and suffered other trauma in the preceding few days. In particular however, the appellant denied that he hit the deceased in the abdominal area. 5 At the relevant time there had been a party conducted at the next door premises and the trial included the calling of a number of persons present at the party who denied being involved in any altercation with the deceased. For present purposes it is not necessary to trace this evidence. 6 Whilst it must be acknowledged that the appellant bore no onus of proof, his case was that any blows which he struck in the course of his fighting with the deceased did not include any blow to the relevant body area and thus no blow which was capable of inflicting the damage which was causative of death. 7 The grounds of appeal against conviction were expressed as follows: "1. The trial judge erred by failing to direct the jury about self defence. 2. The trial judge erred in failing to define the meaning of an unlawful and dangerous act. 3. The trial judge erred by instructing the jury to put out of their minds completely what the appellant's counsel said about the issue of reasonable doubt." 8 Where an issue of self defence arises upon an indictment for manslaughter, it is incumbent upon the Crown to negative the issue. The opening address of the Crown Prosecutor was recorded and included a statement to the jury "the Crown says that the act in the course of the assault was unlawful and dangerous and that it was not done in self defence". 9 At the close of the Crown case the learned trial judge raised the matter in these terms: "HER HONOUR: That is the basis of the Crown case. And Mr Watts, I take it that there is no issue of self-defence in this case? WATTS: No. The Crown has got to negative that - I think it's Jones's case. HER HONOUR: But that's in circumstances in which it is conceded that the event occurred. It would be hard to see how self-defence arises when what the accused's case is, that there was a punch by Mr Doorey to which he responded and that was it, and he walked off. Self-defence surely only arises inevitably when the circumstances of the altercation, for example, indicate that the cause of death must have been occasioned during the course of that altercation? CROWN PROSECUTOR: The Crown's case of course is that the altercation involved a lot more than what Mr Goff is prepared to concede and in any event he raises that he acted in self-defence, although he limits what involvement or what acts he committed. He raised it with the police and self-defence is something I think, both in manslaughter and murder that -- HER HONOUR: I'm sorry, Mr Watt, you mutter as you look down and I can't hear a word you're saying. CROWN PROSECUTOR: Self-defence is, as I understand it, effectively an element that the Crown must negative. I am thinking of the case of Jones and Justice Hunt's model directions in relation to murder and manslaughter. Your Honour is probably familiar with it but would your Honour be assisted by it? HER HONOUR: I fail to see that it arises - I mean, one has to be careful not to simply give rote directions in every trial when you are looking at different facts. Anyway, hand me up the copy and I'll have another look at it but I -" 10 And after some discussion on another matter her Honour returned to say: "HER HONOUR: Mr Watts, just on this issue of self-defence. It still seems to me it doesn't matter. I can't see how it arises. Although the Crown suggests it does I can't see how it possibly does. … (not transcribable)…..looking at a totally separate incident. It couldn't possibly arise in these circumstances. WATT: I don't want a self-defence direction your Honour. I think it would be confusing to the jury." 11 The issue of self defence did not arise upon the case as being fought by the appellant. His case was that he struck no blow to the body which could have been causative of the damage which ultimately led to death. Nevertheless there was evidence that there had occurred, what was described in various terms including fight and scuffle, and the witness Ms Beeken described both men as falling in the course of struggle. In determining that the issue of self defence did not arise it was overlooked that the jury may not accept the version being advanced by the appellant and they would then be required to consider all the evidence which included testimony by both the appellant and Ms Beeken that it was the deceased who commenced the altercation by punching the appellant. With respect to the contrary view of the learned trial judge, it was essential that the jury consider and reject self defence (to the necessary standard) before they could return a guilty verdict. 12 It was the duty therefore of the trial judge to give the jury directions which would enable them to consider this alternative to the case being advanced on behalf of the appellant. There is ample authority that the conduct of counsel cannot relieve a trial judge of the duty to give such directions. 13 In Pemble v The Queen 1971 124 CLR 107 Barwick CJ referred to the course which counsel may see fit to take and observed that in that case: "Counsel for the defence did not merely not rely on the matters now sought to be raised: he abandoned them and expressly confined the defence to matters he did raise. However, in my opinion, this course did not relieve the trial judge of the duty to put to the jury with adequate assistance any matters on which the jury upon the evidence, could find for the accused".

In the same case Menzies J wrote: "Moreover, counsel for the defence cannot effectively disclaim a defence open to the accused upon the evidence. The judge must submit that defence to the jury. Even less can counsel concede a matter of law to the disadvantage of the accused". 14 The approach has been affirmed in subsequent cases R v Galambos 1980 2 A Crim R 388; R v Stokes and Difford 1990 51 A Crim R 25; R v Lawson and Forsythe 1986 VR 515. 15 The transcript extracts to which I have adverted in the present case make it clear that it was the view of the Crown Prosecutor that directions concerning self defence were required and I consider that his view was correct. The ground of appeal should be upheld. 16 In that circumstance it will suffice to deal briefly with the other grounds. There was no explanation in the charge to the jury of the meaning or ambit of the expression "unlawful and dangerous" act. Given the evidence that the damage to the body of the deceased required blows of the severity mentioned by Dr Ellis it would not in my view lead to a quashing of the conviction if there was an omission to tell the jury that the blow or blows which caused such damage had to be such that a reasonable person in the position of the then accused would have realised that by such act or acts the victim was being exposed to appreciable risk of serious injury. There was, however, a requirement that there be given a definition of unlawful and this is simply confirmatory of the need for a direction on the issue of self defence, because an act done in self defence is not unlawful and that was an issue which did arise in the context of the evidence. 17 Ground 3 has reference to a note which was received from the jury during the course of their deliberations. The transcript shows that the learned trial judge passed the note to counsel, as was requisite in relation to any matter upon which it may be relevant to hear submissions. It would appear that, unfortunately, her Honour did not invite submissions before she proceeded to respond in these terms: "Members of the jury, thank you for your note which I have and which will be Marked for Identification 7. I will just read that onto the record. It says, with reference to the term 'reasonable doubt' could her Honour give some guidance on the degree of reason which may be applied. Should 'reasonable doubt' be interpreted in any way as any doubt? I suppose the simple answer to that last is, 'No'. I said to you yesterday, as both counsel have said to you, that I am the Judge of the law and you should take the law as I tell you. I said to you yesterday, without defining what it was that had troubled me, that I did not agree with something that Mr Watts had said to you in this regard, and it was what he said to you about reasonable doubt. I would ask you please to simply put out of your minds completely what he had to say to you about this issue of reasonable doubt and listen to what I say to you." 18 Her Honour continued to affirm to the jury that the expression beyond reasonable doubt conveyed no more and no less than the plain English meaning of the words. No complaint could be made of that part of her response. After the jury resumed their deliberations the transcript continues: "WATTS: Your Honour, I would like it on the record, if it is not on the record already, that what I said to the jury were words to this effect, that if they had any doubt that was reasonable they must acquit. HER HONOUR: No, you didn't. What you said, I'm afraid - and that's why I took issue with it - they must have absolutely no reasonable doubt; and it is the use of that word - I'm sorry, just a minute, I'll just find it - they must have absolutely no doubt that is reasonable. It is the use of the words, 'absolutely no doubt', which becomes a problem, and I regard it - as I said to you yesterday, I would have preferred that you had just left that alone because I am very much of the view that the words that should be used are the traditional words. But it will be on the record anyway, Mr Watts. WATTS: Well the addresses aren't. HER HONOUR: Of course not. I took those words down as you spoke them. WATTS: I am content with - I am sure that those were the words that I said, your Honour. HER HONOUR: Yes. WATTS: Thank you." 19 This Court is obviously not in a position to resolve any dispute as to the accuracy of recollection of what was said but what has occurred in this case is a useful reminder of the prudence of compliance with the requirement that, where a jury request for directions or assistance is made, the submissions of counsel should be heard and, if necessary, a ruling given by the trial judge as to what will be conveyed to the jury by way of response. Given that the response to the jury's enquiry about the meaning of the expression beyond reasonable doubt was not flawed, I would not uphold the appeal on this ground. 20 Nevertheless, having regard to my conclusions concerning grounds 1 and 2, the appeal against conviction should be upheld and the conviction quashed. The Court has been informed that there had been a previous trial in which a jury had been unable to agree but it is a matter for the exercise of prosecutorial discretion whether a third trial should be held. The basis upon which I am of opinion that the present conviction should be quashed is a procedural defect in the conduct of the trial which led to miscarriage in the sense that the appellant did not have the benefit of the jury being given a direction which may have resulted in his acquittal and I would exercise the discretion of this Court to order a new trial. 21 The order which I propose necessarily involves quashing of the sentence imposed for the offence of manslaughter upon which were taken into account the two matters to which I have made previous reference. The appellant was arrested on 2 December 1995 and remained in custody until he entered bail on 1 February 1996. He remained at conditional liberty until 24 February 1998 when he was arrested in relation to the matters on the second indictment and he remained in custody until sentence. 22 On the conviction of manslaughter the appellant was sentenced to six years and six months penal servitude by way of minimum term commencing on 7 January 1998 and expiring on 6 July 2004 together with an additional term of five years and six months. On the second indictment, for the offence of assault occasioning actual bodily harm the appellant was sentenced to a fixed term of two years imprisonment commencing on 12 March 1999 (the date upon which the sentence was imposed) and expiring on 11 March 2001; for the offence of assault to a fixed term of twelve months commencing on 12 March 1999 and expiring on 11 March 2000 and for possessing a shortened firearm to a fixed term of three years commencing on 12 March 1999 and expiring on 11 March 2002. 23 Expressly conscious of the principles of totality, her Honour imposed sentences on the counts in the second indictment which will be fully subsumed within the minimum term component of the sentence on the first indictment. As that conviction and sentence are now to be quashed, the question arises as to what sentences should be imposed in respect of the matters on the second indictment. It is not possible for this Court to deal with the matters taken into account in the sentence now quashed which was imposed in respect of the first indictment. 24 The facts concerning the matters on the second indictment were shortly these. At about 5.30 pm on Tuesday 24 February 1998 two couples were engaged in an argument in Toongabbie. The appellant approached and joined in, approaching a victim and throwing a punch at him. This person stepped back but then retaliated by hitting and kicking the appellant. During this altercation the appellant removed a sawn off .22 bolt action rifle from his tracksuit pants pocket which he pointed at the victim and said he was going to shoot him. He later hit the victim on the head and shoulders with the butt of this rifle. It was not loaded at the time. The appellant turned around to bystanders with the rifle and said he was going to shoot every one of them. The victim sustained a minor laceration behind the ear and swelling to the face. Police opinion was that the appellant was affected by intoxicating liquor at the time and they had detected a strong smell of liquor on his breath. 25 The appellant has a considerable record which includes other convictions for assault occasioning bodily harm and in connection with possessing and causing firearms to be shortened. His prior record gains him no leniency. However, his pleas of guilty need to be taken into account and although it is difficult to perceive any manifestation of remorse for his offences, the appellant is entitled to the utilitarian benefit which the community gains from the pleas of guilty. I would adopt findings favourable to the appellant made by her Honour. It is necessary for this Court, however, to resentence in isolation from the manslaughter indictment and the principles of totality which attached to the sentence in respect of it. 26 I am not persuaded that there are special circumstances requiring departure from the setting of a non-parole period of seventy five percent of the longest head sentence. Further having regard to the time spent in custody which I have indicated, I would date this sentence from 24 February 1998 when the appellant was taken into custody in respect of the matters on the second indictment. 27 I propose the following orders: On the first indictment the appeal is allowed, the conviction and sentence quashed and a new trial ordered. 28 On the second indictment leave to appeal against sentence is granted and the appeal allowed. The sentence imposed on counts 2, 3 and 4 of the second indictment are quashed. In lieu thereof the appellant is sentenced to concurrent terms as follows: on count two, charging assault occasioning actual bodily harm the appellant is sentenced to two years imprisonment to date from 24 February 1998 and to expire on 23 February 2000. I set no non-parole period in respect of that head sentence as it will be subsumed within a later sentence to be imposed and, in any event, is expired. 29 On count 3 in the second indictment, the appellant is sentenced to twelve months imprisonment to date from 24 February 1998 and to expire on 23 February 1999. I set no non-parole period in respect of that sentence for reasons coordinate with those given for not setting one in respect of the second count. 30 On the fourth count of possessing a shortened firearm the appellant is sentenced to three years imprisonment to date from 24 February 1998 and to expire on 23 February 2001. In respect of that sentence a non-parole period of twenty seven months is set commencing on 27 February 1998 and expiring on 23 May 2000. The Court orders that the appellant be released to parole on 23 May 2000. 31 IRELAND J: I agree. 32 ADAMS J: I also agree with what has fallen from the presiding Judge, but I wish to add an observation of my own. 33 In dealing with the issues before the Court the learned trial judge repeatedly referred to rational explanations, suggesting that "rational" in the context of "reasonable" meant the same thing. Judgments both of the High Court of Australia and this Court have pointed out on many occasions that the directions which are appropriate in circumstantial evidence cases, especially directions of the kind referred to in Peacock v The King should be used with caution. The clear suggestion of her Honour's directions in this regard was that the jury should not have a doubt unless they were persuaded it was a rational one. This is a significant misdirection. 34 In Green v The Queen (1971) 126 CLR 28 at pp 32 and 33 the Court said this: "A reasonable doubt is a doubt which the particular jury entertain in the circumstances. Jurymen themselves set the standard of what is reasonable in the circumstances. It is that ability which is attributed to them which is one of the virtues of our mode of trial; to their task of deciding facts they bring to bear their experience and judgment. They are both unaccustomed and not required to submit their processes of mind to objective analysis of the kind proposed in the language of the Judge in this case. 'It is not their task to analyse their own mental processes:' Windeyer J. Thomas v The Queen(1). A reasonable doubt which a jury may entertain is not to be confined to a 'rational doubt' or a 'doubt founded on reason' in the analytical sense or by such detailed processes as those proposed by the passage we have quoted from the summing-up. Yet that is what they were directed to do in this case." 35 Before an inference can be drawn there must, it is true, be a rational basis in the evidence for the drawing of the inference. However, a reasonable doubt is not an inference in this sense and it is not speculation to consider whether the facts as a whole give rise to particular reasonable possibilities. 36 This was not made the subject of a ground of appeal. Nevertheless, in the circumstances, I think that it is important to bear in mind what fell from the High Court in Green's case. 37 GROVE J: The orders of the Court, therefore, in respect of both indictments will be as I have proposed. **********

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