Regina v PL

Court of Criminal Appeal (NSW)|2011-12-09|Before: Bathurst CJ, Simpson J, Adamson J, Adams J

Judgment 1BATHURST CJ: This is an appeal brought by the Crown pursuant to s 107 of the Crimes (Appeal and Review) Act 2001 (NSW) ("the Act") against the directed verdict of acquittal given following the conclusion of the Crown case on the trial of the respondent for the manslaughter of MG ("the deceased"). 2Prior to the trial the subject of the appeal, the respondent had stood trial for both the murder and the manslaughter of the deceased. The trial judge in that trial directed a verdict of acquittal. On appeal the verdict was quashed and a new trial ordered on the charge of manslaughter. It is from the directed verdict in that second trial that this appeal is brought.

The grounds of appeal 3The Crown relies on two grounds: 1 His Honour erred by misdirecting himself on the test of whether there is a case to answer. 2 His Honour erred in finding that it was "usually necessary" for the Crown, in order to establish that there was a case to answer, to identify "the cause of death or the precise acts that resulted in that cause" of death. 4Each of the parties accepted that an appeal under s 107 of the Act must involve a question of law alone (see s 107(2)) and that the section does not permit an appeal on a mixed question of fact and law: R v PL [2010] NSWCCA 256; (2010) 261 ALR 365 at [11]-[27].

The factual background 5The factual background set out below is taken from the judgment of the trial judge setting out the reasons for his directed verdict and the summary of trial filed by the Crown in this appeal which is accepted as correct by the respondent. 6The respondent and the deceased, MG, had been in a relationship for some years. However, there was evidence that the deceased was contemplating bringing it to an end. A friend of the deceased and respondent ('the friend') gave evidence that about a month before his death, the deceased told him that he wanted to terminate his relationship with the respondent because he was not happy, the respondent was becoming aggressive and he (the deceased) was frightened of him. 7A neighbour lived in a terrace adjoining the one occupied by the deceased and the respondent. At about 8.15am on the morning of 7 April she heard a bang, "sounding like a shelf falling, and pots and lids falling to the ground". She then heard what she described as a sound or singing lasting "for 8 seconds even". She later said, "It could have been a word even, if it was muffled, it was - I didn't know what it was - it was a shout or a roar. It could have been somebody saying something or crying out". 8She gave evidence that at about 8.45am she heard some further noise from the adjoining premises. She said she could hear "somebody crying like a child, having a temper tantrum crying that type of cry, you know, not really crying. It was like roaring or having a tantrum". She said it was the respondent who was crying but she could not identify the persons she had heard shouting earlier. She said the respondent's crying or wailing continued for about 10 to 20 minutes. 9On the morning of 7 April 2007, the wife of the friend of the deceased and respondent telephoned their residence at around 9.00am. The person who answered the telephone, believed by her to be the respondent, was crying on the end of the line sounding really upset and hysterical. She then rang her husband and daughter and told them to go to the house. 10At 9.12am on 7 April, the respondent made a 000 phone call. The transcript of the call records him saying, "I have a fight with my friend". The operator is recorded saying, "I beg your pardon?" and the respondent is recorded replying, "I have a fight with my friend and my friend dead". 11The friend gave evidence that after receiving a call from his wife he went to the house in which the deceased and the respondent were residing. He could see the respondent "scream his head off" sitting with the deceased's body. He remembered the respondent saying, "I want my [MG], [MG], wake up, [MG]". 12The ambulance officer, a Mr Lawrence Agars, attended the house and saw the respondent sitting at the bottom of the staircase with his back to the front door, the deceased lying on his back with his head elevated on a pillow in the respondent's lap. He said the respondent was hysterical and he was wailing very loudly. Officer Agars said there was what appeared to be a tiny smear of blood on the wall of the stairs but he was unsure if he put it there with his gloves. He also noted a metal object, a small pot with a spout, near the deceased's legs. 13The police officers who arrived soon after observed that the respondent had what appeared to be blood on the top that he was wearing at the time. 14After the respondent had been handcuffed and cautioned, he was heard saying to Senior Constable Simkins, "It's too late. I need my medication". Senior Constable Simpkins asked what had happened that morning and he replied, "He had a fight". He was asked what the fight was about but he only replied, "I want my medication". 15A Mr Raymond Carter, a former partner of the respondent and also a friend of the deceased, attended Redfern Police Station. He saw the respondent was crying and hysterical. After a time the respondent told him, "We had an argument" and "I was making carrot juice. [MG] kept at me" and then started sobbing even more. 16At 3.30pm on the afternoon of 7 April, Detective Hamill cautioned the respondent. The respondent said, "No I didn't murder him, he's not dead he is only in hospital". Detective Hamill said, "No [MG] is dead. Can you tell me what happened?". The respondent replied, "I don't remember. We have breakfast, [MG] argue with me. He criticise me a lot". The respondent then said, "Oh, [PL]" (himself) and then "Then my head starts spinning. Then I don't know what happened". 17A Detective Griffin attended the premises on 7 April 2007. He noticed what appeared to be a bloodstain on the northern wall near the deceased and an apparent smudge of blood on the doorway and handrail of the stairs. There was an apparent bloodstain smeared on the part of the juicer on the floor near the deceased, but no blood on the floor. No scientific testing was done to determine whether what Detective Griffin saw was in fact blood. 18Dr Paull Botterill was the forensic pathologist who conducted the autopsy on the deceased. In his opinion the cause of death was blunt force head and neck injuries. Both head and neck injuries would be possible causes of death. Whilst either could have resulted in death, it was more likely that the combination of them was responsible for the death. Dr Botterill noticed the following injuries at the autopsy: 1 Tears over the skin of the right side of the chin. 2 Tears, grazes and bruises under the chin. 3 Multiple tears to the skin and bruises over the front of the neck and upper front of the chest. 4 Bruising beneath the skin at the back of both sides of the head. 5 A tear of the lining of the inside of the mouth near the right lower lip. 6 Some blood over the surface of the brain. 7 Bruises to the left back and hip region, and 8 Multiple bruises under the skin of the right arm, left forearm, right wrist and knuckles of both hands. 19Dr Botterill stated that although any of the individual injuries might have been associated with a simple fall, the extent and distribution of the injuries was more in keeping with multiple, blunt force contacts. A fall down the stairs may have accounted for some of the injuries but not all of them. He stated it was possible that the cross-type laceration to the deceased's chin was caused by contact with the metal part of the juice extractor. He agreed, in answer to questioning from the trial judge, that in relation to the neck injuries it was difficult to be more accurate than that they had occurred within a 24 hour period before death. However, he stated that if one knew the neck injuries had been inflicted six or eight hours before death, he would defer to the head injuries as the cause of death. 20Dr Botterill inspected the area around the staircase in the house. In his opinion a fall from the landing partway up the staircase could not result in the constellation of injuries on the deceased. He could not conceive of the deceased's injuries being caused by a fall from the top of the stairs, except for the "theoretical possibility" of a person having a seizure and repeatedly moving their body along a surface to produce the pattern of bruising on the chest, but he had never seen such in a situation in his experience. 21Dr Michael Rodriguez was the neuropathologist who examined the deceased's brain at the request of Dr Botterill. His principal diagnosis was that the brain was subjected to blunt force injury. He said that there was a significant movement of the central structures of the brain and the injury to the central part of the brain was by far the most serious of the deceased's brain injuries. He stated possible causes could include: (a) A fall down six steps of a set of stairs. (b) If one was hit hard enough over the head with the part of the juice extractor. (c) If a person was in a physical altercation, was pushed backwards and fell and hit his head on a wooden floor.

The reasoning of the trial judge 22Early on in his judgment the trial judge stated the test to be applied in determining whether or not to direct a verdict of acquittal. He referred to the principle as stated in Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207 at 212 to the following effect: "There is no doubt that it is a trial judge's duty to direct ... [a verdict of not guilty] if the evidence cannot sustain a guilty verdict or, as is commonly said, if there is no evidence upon which a jury could convict." 23His Honour accepted that "evidence which favours the accused as, for example, by contradicting, qualifying, or explaining the evidence supporting a conviction is to be disregarded: R v R (1989) 18 NSWLR 74", and that questions of credibility and reliability are for the jury to determine, not the judge. He stated the mere fact that in a circumstantial case it is possible to formulate a reasonable hypothesis consistent with innocence which the prosecution has failed to exclude cannot justify a direction that the jury should acquit if there is evidence upon which the accused could be convicted. 24The parties accepted that in this part of his judgment (pars [2]-[4]) the trial judge articulated the correct principles. 25The trial judge set out the evidence and summarised the Crown case in the following terms (at [18]): "The Crown, in brief, submitted that the medical and scientific evidence, the timeline, the tension in the relationship, the lack of any other person with opportunity, what was heard by the neighbour and the statements of the accused permitted the inference that the deceased was strangled and/or hit over the head (either with the juicer bowl or otherwise) by the accused although it is unclear in which order these acts are said to have occurred. (Given that the accused was on trial for manslaughter and not murder, the possible financial gain that might have been a motive was not relied on.)" 26The critical portions of the trial judge's judgment are at pars [20]-[22]. It is convenient to set them out in full: "[20] It is clear that identification of the cause of death or the precise acts that resulted in that cause need not be identified in every case, though it is obviously usually necessary to do so in order to show that it is the accused who was responsible. Here, the crucial question is whether the deceased's death was caused by the unlawful and dangerous act of the accused. There can be no doubt that answering this question requires focus on what the jury are able, as a matter of common sense and reason, to conclude from the evidence as a whole. The mere fact that the Crown case is possible could not, of course, justify a conviction. The evidence must be such that the accused could, though not necessarily would, lawfully be convicted upon it: May v O'Sullivan [1955] HCA 38; (1955) 92 CLR 654 at [7]. [21] It is important, indeed crucial, to understand that reasoning by inference is an essential part of the jury's consideration of the charge and that this may not always be capable of clear articulation, as is evidenced by the injunction frequently given that common sense has a significant part to play in drawing inferences. Of course, technical medical evidence is not a matter of common sense but of expertise, though its significance may well depend on common sense inferences derived from other material. That material, and how it impinges on or is affected by the medical evidence and, ultimately on the issues in the case, are matters for the jury to evaluate. Given the time frame in which it is possible that the injuries were suffered and the uncertainties of the cause of death, the surrounding circumstances - so far as there is evidence of them, are crucially important. Thus, for example, the juicer bowl may have inflicted the laceration to the deceased's chin, but was it wielded by the accused and, if so, in what circumstances? If he had used it, why did he leave it there in full sight and, if it were bloodstained, why was there no blood on the floor? If the deceased fell down the stairs why did the accused not mention it? This would require consideration, amongst other things, of his mental state at the time he spoke. If saucepans falling to the floor explains the noise heard by the neighbour, how did this happen and what inferences arose from it? Was it merely the sound of the juicer bowl hitting the floor and, if so (since it was thrown at the wall above the kitchen door), who threw it and why? Did it cause an injury to the deceased and, if so, in what circumstances? For example, did it cause any serious injury or one or more that was or were relevant to the deceased's death? Did the deceased fall down the stairs and could this event occur independently of the accused and, if not, did the accused do it deliberately or accidentally or in self defence? I mention these matters by way of example only - the range of factual issues is much wider of course. At the end of the day, one must remain acutely aware that inferences may be able to bridge any apparent gaps in the Crown case. [22] Accepting, however, that there is no bright line separating 'conjecture' from common sense or inferential reasoning, the evidence must be such as to enable a lawful verdict of guilt. Much might be left uncertain but a judge must direct acquittal where, in his or her view, a guilty verdict would necessarily involve inadmissible conjecture. Inevitably, this will be a matter of fact and degree. In some cases, the multiplication of circumstances, taken together (though ignoring those matters that assist the accused), will be capable of leading to a conclusion of sufficient certainty to justify conviction, in which event, there is a case to answer. Here, however, the number of possibilities and the varying inferences available if one or another path of reasoning be followed add to uncertainty rather than reduce it. The choice of path is fraught with considerable doubt and each has substantial gaps. So far as the medical evidence pertaining to the event or events that caused death, a very significant complicating feature is the evidence, not given at the first trial, of the 24-hour time frame in which the injuries may have been suffered. Amongst other things, this made it distinctly less important than it earlier appeared that a fall down the stairs almost certainly did not explain all the injuries."

The submissions of the Crown 27The Crown focused on par [22] of the judgment of the trial judge stating that although he had articulated the correct test earlier in his reasons, his statement in that paragraph: "In some cases, the multiplication of circumstances, taken together (though ignoring those matters that assist the accused), will be capable of leading to a conclusion of sufficient certainty to justify conviction, in which event, there is a case to answer", erroneously stated the test to be applied. The Crown stated that this was not the correct test. Its submissions emphasised that a directed verdict is not available merely because a judge believes a verdict would be unsafe or unsatisfactory. It was submitted that the trial judge contemplated a variety of factual scenarios and integral to his reasoning was that it was relevant to consider situations in which the strength of the Crown case varied. It was put that this was contrary to what was said in Doney v The Queen supra and R v JMR (1991) 57 A Crim R 39, which state that the Crown case must be taken at its highest and that the trial judge cannot direct a verdict of acquittal if there is evidence in support of the Crown case upon which the accused could be convicted even though a reasonable hypothesis consistent with innocence might be formulated. 28The Crown submitted that the evidence at its highest was that the act of the respondent causing the injury or injuries to the deceased which constituted an unlawful and dangerous act were caused by him during their physical altercation overheard by the next door neighbour less than an hour before the respondent finally called 000.

The submissions of the respondent 29The respondent pointed to pars [2]-[4] of the judgment of the trial judge and submitted that they did not reveal any error of law. He submitted that the reference in par [22] to "sufficient certainty" must be read in its context; his Honour there meaning sufficient certainty to justify a conviction without conjecture or speculation. He pointed to the fact that the trial judge stated in his reasons that it was not sufficient in a circumstantial case that there may be another reasonable hypothesis consistent with innocence which the prosecution has failed to exclude to justify a directed verdict of acquittal. The respondent also sought to draw some comfort from remarks made by the trial judge during the course of argument on the issue to show that he understood the correct test. 30In addition, the respondent submitted that any error made by the trial judge was in fact an error of mixed fact and law, pointing out that the directed verdict by its very nature involved an evaluation of the evidence, that being a question of fact.

Consideration 31The principles on which a trial judge should direct a verdict of acquittal are well settled. The question is whether at the time a no case to answer submission is made the accused could lawfully be convicted on the evidence as it stood at that time: May v O'Sullivan [1955] HCA 38; (1955) 92 CLR 654 at 658. In Doney v The Queen supra, in addition to the passage cited by the trial judge the Court made the following remarks (at 214-215, citations omitted): "It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty. It is necessary only to observe that neither the power of a court of criminal appeal to set aside a verdict that is unsafe or unsatisfactory nor the inherent power of a court to prevent an abuse of process provides any basis for enlarging the powers of a trial judge at the expense of the traditional jury function. The power of a court of criminal appeal to set aside a verdict on the ground that it is unsafe or unsatisfactory, like other appellate powers, is supervisory in nature. Its application to the fact-finding function of a jury does not involve an interference with the traditional division of functions between judge and jury in a criminal trial." 32It is also clear from the authorities that the sufficiency of evidence to warrant a conviction is to be resolved without regard to evidence which favours the accused as, for example, by qualifying, contradicting or explaining the evidence in support of a conviction (see R v R supra at 81, 84-85). Further, in a case such as the present which depends in the main on circumstantial evidence, a judge cannot direct a verdict of acquittal if there is evidence in support of the Crown case on which the accused could be convicted even though a reasonable hypothesis consistent with innocence can be formulated: R v JMR supra at 44. 33The learned trial judge early in his judgment correctly articulated these propositions. However, following his statement of the Crown case (at [18]) he adopted a somewhat different approach. In par [20] of his judgment he stated that the mere fact the Crown case is possible could not justify a conviction. It is difficult to see how this could be reconciled with the passage from Doney cited above to the effect that an acquittal can only be directed if there is a defect in the evidence taken at its highest which would mean it would not sustain a verdict of guilty. It is also difficult to reconcile with the statement in that case that it is not sufficient that the trial judge forms the view that any conviction would be unsafe or unsatisfactory. 34The trial judge at this point, however, did refer to May v O'Sullivan supra. 35In par [21] of his judgment, the trial judge referred to a series of alternative hypotheses which may have resulted in the death of the deceased. In par [22] as the Crown pointed out, he again referred to the need for a conclusion of sufficient certainty to justify a conviction, although pointing to the difference between what he described as conjecture and commonsense or inferential reasoning. 36It seems to me that the trial judge erred in law in two respects. First, his statement of the need for sufficient certainty implied an evaluation process of the weight of the evidence as distinct from a consideration of the question of whether the evidence taken at its highest could support a verdict of guilty. Second, and related to this issue, the trial judge reached his conclusion after evaluating alternative hypotheses which it was open to the jury to consider, contrary to the approach referred to above and in particular what was said by this Court in R v JMR supra at 44. 37There remains the issue of whether the error of the trial judge was an error of law alone or an error of mixed fact and law. It was correctly accepted by the parties that the Crown was not entitled to appeal on a question of mixed fact and law. If what the trial judge did was to wrongly apply the correct principles to the facts, that would be an error of mixed fact and law and an appeal would not lie (see Smith v R (2000) 1 WLR 1644 at 1653). 38The respondent contended that in the present case any error of the trial judge was an error of that nature and that at most the trial judge had wrongly concluded, in accordance with the correct principles, that there was not evidence on which a jury could convict, thereby committing an error of mixed fact and law. 39Although support for this argument can be derived from the correct statement of the principles in the opening paragraphs of the judgment of the trial judge, it seems to me for the reasons set out above he failed to apply these principles in reaching his conclusion, in particular in his requirement of sufficient certainty and in his consideration of various hypotheses favourable to the accused. The trial judge in these circumstances in my view, applied incorrect principles to his consideration of the issue and thereby committed an error of law alone. 40It follows that this ground of appeal has been made out.

Ground 2 41In these circumstances it is not strictly necessary to deal with ground 2. However, I do not believe there was an error of law in the comment by the trial judge that it is usually necessary to identify the cause of death to show that the accused was responsible. The trial judge stated consistently with what was said in R v PL supra that the cause of death need not be identified in every case and his expression of the view as to what would generally be required did not constitute a legal error. 42However, the comment was unhelpful. What his Honour was required to do in considering whether or not there was evidence on which a jury could convict in a circumstantial case of this nature, was to consider the evidence as a whole (see R v Hillier [2007] HCA 13; (2007) 228 CLR 618 at [46]), ignoring alternative hypotheses, to determine whether it was open to the jury to convict on that evidence. What is or is not usually necessary is irrelevant to that consideration.

Discretion 43There remains the question of whether this Court should quash the acquittal under s 107(5) of the Act and if so whether it should exercise its powers under s 107(6) to order a new trial. Whilst not directly addressing the issue raised under s 107(5), the respondent contended that a new trial should not be ordered. He contended that a conviction following a retrial would likely be overturned on appeal as unreasonable, that it was the second directed verdict by a Supreme Court judge, that an order for a retrial would undermine community confidence in the criminal justice system and that the respondent had clearly suffered from four months imprisonment, strict bail conditions and the stress and uncertainty surrounding the Crown appeals. 44The Crown submitted that a new trial should be ordered, pointing to the fact that the charge involved the taking of human life, a matter that has always been regarded as serious. The Crown also pointed to the fact that prior to the second trial Dr Botterill, having viewed the premises, concluded that the likelihood of the injuries being incurred from falling down from the top of the stairs was at most a theoretical possibility and that the death resulted from a heart attack was a remote and unlikely possibility. The Crown in those circumstances submitted that the circumstantial case was a strong one. 45The manner in which the discretion should be exercised was considered by this Court in R v PL supra. In that case Spigelman CJ, with whom the other members of the Court agreed, made the following comments at [88]-[93]: "[88] In a passage frequently cited by Australian Courts, Black J said in Green v United States, 355 US 184 at 187-188 (1957): 'The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.' [89] Accordingly, there are circumstances in which the courts will order a stay of a second prosecution. (See, eg, Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at [116]-[118]). [90] In my opinion, in the context of an appeal against an acquittal by directed verdict, this Court should exercise its discretion not to order a new trial if it is satisfied that a conviction would be overturned as unreasonable, or on any other basis which would not result in a new trial on a successful conviction appeal. [91] Although, on the authority of R v R, the trial judge cannot direct a verdict on that basis, the principle of double jeopardy, notwithstanding its partial abrogation, remains a fundamental principle of our criminal law. It should be given effect in the manner I have indicated. [92] The Crown relied, on the exercise of the discretion, on the principle that the Court should not constrain the prosecutorial discretion. In Maxwell v The Queen (1995-1996) 184 CLR 501, Dawson and McHugh JJ said at 512: 'Our courts do not purport to exercise control over the institution or continuation of criminal proceedings, save where it is necessary to do so to prevent an abuse of process or to ensure a fair trial.' [93] If this Court formed the opinion that an appeal from a new trial would be upheld, then that new trial would constitute a relevant abuse of process." 46In that case the Court, applying these principles to broadly similar facts to the facts which emerged at the second trial, ordered a new trial on the ground of manslaughter but not of murder. 47It is not necessary to deal in detail with the competing contentions of the parties as to the strength of the case against the respondent. Suffice to say that on the evidence outlined above, particularly the fact that the respondent and the deceased were alone in the house, the sounds heard by the neighbour, the statements of the respondent made on 7 April 2007 and the evidence of Dr Botterill, is it by no means certain that a jury verdict of guilty would be set aside as unreasonable. 48So far as the other matters put by the respondent are concerned, this undoubtedly is a tragic case. However, having regard to the gravity of the offence, it seems to me ultimately a matter for the prosecutorial authorities to determine whether or not to proceed further against the accused. Those authorities undoubtedly would take into account the fact that a further trial will be a third trial and the other matters put by the respondent in this appeal in making that decision. 49In these circumstances, in my opinion, the Court should make the following orders: 1 Appeal allowed. 2 Verdict of acquittal on charge of manslaughter quashed. 3 Order a new trial on the charge of manslaughter. 50SIMPSON J: I agree with the Chief Justice. 51ADAMSON J: I agree.

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