Shane Rudman v R [1997] TASSC 16

Shane Rudman v R [1997] TASSC 16 - TASSC 1997 case summary — Zoe

[9]

"1 The verdict of the jury was unsafe and unsatisfactory because it was not reasonably open to the jury to be satisfied beyond a reasonable doubt that the appellant, when he inflicted the fatal stab wound, did not do so in defence of himself using only such force as, in the circumstances as he believed them to be, it was reasonable to use.

1A A miscarriage of justice occurred because hearsay evidence was led from the witness Mark Wescombe that Frederick Plumstead had told him that 'he'd went round there to beat this bloke up because he'd stolen some of his stuff out of his house', and that 'this bloke had been livin' in his house while he was in goal [sic], with his wife, and when she moved to her mother's ... he stole some furniture and stuff', when no questions were asked as to the reaction of the appellant upon Plumstead saying those things.

2 A miscarriage of justice occurred because the jury learned from an answer given by the appellant in cross-examination that Trudy Plumstead had once said that the appellant pulled Paul Atkins out of the doorway at 11 Mason Street, Claremont, when no questions were asked as to the context of her having said that, nor as to the reaction of the appellant upon hearing her say that or learning that she had said that.

2A The learned trial judge misdirected the jury in that he made comments which implied that it was part of the defence case that Paul Atkins had attacked Frederick Plumstead, when there was no evidence or suggestion to that effect.

3 The learned trial judge ought to have directed the jury to the effect that a person defending himself cannot weigh to a nicety the exact measure of his defensive action, but omitted to do so.

4 There was an unacceptable risk that the verdict was reached by some process other than true agreement in conformity with the jurors' oaths and affirmation, given that the jury deliberated upon their verdict from about 9:50 am until about 6:00 pm on the 24th June, 1996, reached a stage at about 4:30 pm on that day when further deliberation that day or night was likely to be unproductive, were 'locked up' from about 6:00 pm that day until about 9:00 am the following day, and returned a unanimous verdict of guilty at about 9:40 am that following day.

5 The learned trial judge for the purposes of sentencing the appellant made findings of fact that were not reasonably open to him to the effect that:

(a) the appellant's intention or purpose was to stop the deceased from preventing Frederick Plumstead in carrying out his attack upon Paul Atkins;

(b) the appellant was not acting in self-defence; and

(c) the appellant stabbed the deceased twice.

6 The sentence imposed was manifestly excessive in all the circumstances of the case."

[11]

3 The three alighted from their car in Mason Street, the appellant with the knife later used to stab the deceased attached to a belt loop on his trousers and Plumstead, to the appellant's knowledge, armed with a pick axe handle. Plumstead stayed concealed behind a fence at the bottom of the drive and the appellant and Mrs Plumstead went to the door of the house. Mrs Wilson answered the knock and told Paul Atkins a man and woman were there to see him. Atkins went to the door where he found the appellant immediately in front of it. The appellant held his hand out to shake Atkins' hand and then pulled him from the doorway to a van parked close by it. As they were struggling, Plumstead struck Atkins on the head and then in the back with the pick axe handle. There were a number of people at Mrs Wilson's home that night including another son, the deceased, who was Paul Atkins' half brother. Seeing the commotion outside, he seized an axe from the laundry near the exit door and went outside to assist Atkins, who was under attack from Plumstead. The deceased struck Plumstead at least one blow in the back with the blade of the axe. It was not a blow administered with full force or much worse injury would have been done to Plumstead, but it seems to have been sufficient, on one view of the evidence, to deter Plumstead from continuing with his attack on Atkins. The deceased then moved away some distance into the back yard of the house and was followed quickly by the appellant who had the knife drawn. According to the witness, Paul Miller, who was not a member of the family but a friend of Paul Atkins' brother Trad Atkins and had been assisting Paul Atkins to move furniture in the van parked in the driveway, the person with the knife (the appellant) "took off" after the deceased and he saw the two facing each other in the back yard with the deceased holding the axe up in front of his body in a defensive attitude. The appellant had his back to Miller, who then looked away towards Paul Atkins, who was dazed and bleeding from Plumstead's assaults. He saw no more of the deceased who, despite being stabbed in the heart by the appellant, managed to scale a fence in the yard and to approach the entrance to a nearby house where he expired. Following the departure from the yard by the deceased, the appellant picked up the axe and he and the Plumsteads left the premises, discarding both knife and axe on a footpath some little distance down the street. The following afternoon the appellant was interviewed by police and charged with murder. He said in evidence at the trial that he first learned of the death of the deceased on the 7am radio news that day.

[29]

"The second point I want to raise with you concerns two discrete passages of evidence that occurred during the course of the trial. One of those passages was mentioned by Mr Blow this morning and I think Mr Bugg mentioned the other yesterday afternoon. But you will remember that when we heard from the accused's brother Mr Wescombe, questions were asked of Mr Wescombe as to what Fred Plumstead had been saying at Mr Wescombe's home at Otago Bay, and Mr Wescombe told us that Plumstead told him that there'd been a fight and he'd been to beat this bloke up because he'd stolen stuff from the home and that he got hit in the back with an axe and that he inspected that wound and so on.

Well now, as I've told you already - as I've reminded you already - we have not heard any evidence from Plumstead. What he says out of court, that is, not in the witness box about what occurred or why he went or why he did anything, is not evidence of that fact that you can act upon. To do that, if you were to accept what Plumstead had told Wescombe as evidence of the facts that Plumstead was talking about, you would be using that evidence in what we call a hearsay way. You would be using it to establish the truth of the utterances made by Plumstead. In this case, you are not entitled to do that. Mr Bugg was entitled to ask questions about what Plumstead might have said because the evidence was - and I don't think it's contradicted - that the accused man was present at the time and therefore his reaction and his response to what his friend Plumstead was saying, might have been of some relevance in the case. As it transpired, I don't think he gave any evidence of a particular reaction - that is Mr Wescombe I don't think gave any evidence of a particular reaction by his brother. So you would not be entitled to use the evidence of Plumstead's conversation with him to establish the truth of any of the matters of which Plumstead was speaking. So you must be very careful about that.

Then similarly, Mr Bugg asked the accused whether Trudy Plumstead had said on an earlier occasion that he, the accused, had pulled Paul Atkins from the doorway, and the accused agreed that that had been said, but he - I think - I'll just check on that - Q: 'Did you know that Trudy Plumstead had said that you pulled this man out of the doorway? ... Yes, I heard that.' 'Did you speak to her about it? ... No.' 'She was there? ... Yes, she was there.' 'But that's what she said though, isn't it? ... Yes.' 'You would disagree with that? ... Yes.' 'You would disagree with Mr Atkins when he says that as well? ... Yes.' Well now, Mr Bugg was entitled to ask the accused whether he had had any particular reaction to something that Trudy Plumstead had said and if there had been any such reaction that would be something you'd be entitled to take into account, but you would not be entitled to rely on anything that Trudy Plumstead might have said out of court on some occasion which is not specified, about whether or not Atkins had been pulled from the house by the accused. To use that evidence in that way would be totally impermissible. So you can hear the proposition put, you can judge what the accused's reaction to something that he's heard from someone else might be, and whether that illuminates his conduct in any way, is a matter for you. But you can't use something that's been reported as having been said out of court by someone such as Trudy Plumstead or Fred Plumstead for the purpose of proving or corroborating that, for example, Atkins had been pulled out of the door by the accused. Her evidence can not be used in that way and must not be used in that way."

[48]

"So there are two important ingredients which must enter into any consideration of whether or not a person has been acting in a justifiable way in response to an attack. The two elements are that a jury must look firstly at the circumstances as the accused person perceived them to be. You must look, if you can, through the accused's eyes at the situation confronting him. You must try and determine what he saw and appreciated about the unfolding events. You must take into account the fact that he may have been mistaken - that is after having heard all of the evidence in the case, you might think his perception about what occurred was wrong, but nonetheless, the first thing you must look at is how he perceived it to be. And even if he was wrong, as you would not determine about what was happening, you must nonetheless bear steadfastly in mind that it is his perception of events which is important for you to have in mind when you consider this most important question. So you determine how the accused man saw the relevant events and you then turn to the second question which is involved in this definition. Was his response to those perceived events a reasonable response. Now, that is a question which in no way depends upon what he thought might have been a reasonable response. That question depends upon your assessment of what was, in the circumstances as he saw them to be, what was a reasonable response. So the first test, if you like, is an objective [sic] one. How did the accused see things. The second test is an objective one. Was it reasonable for him to do what he did in response to the things that he perceived. I mean, plainly, just to give an illustration of this, if someone perceives that they are about to be hit with an open hand, you might think it reasonable that you would put up your hand to stop it or run away, or do anything to avoid getting a slap. You might think, however, that it would be a grossly excessive reaction to a minor assault of that kind to pull out a pistol and shoot your assailant dead on the spot. So, I mean, that is an extreme example, but it illustrates for you, I think, the way in which you've got to look at the actions of the accused. You've got to, as it were, look through his eyes, see what he perceived, and you use the whole of the evidence in determining that, not just necessarily what he says - it is your assessment of what he actually perceived - and then you look to see whether his response to that was a reasonable use of force - was a reasonable response. If he responds unreasonably, if he uses grossly excessive force he can't rely on the doctrine of self defence to escape criminal culpability for what he's done."

[56]

32 It is submitted that in the circumstances there was an unacceptable risk that at least one juror joined in the verdict for the sake of terminating the proceedings rather than in accordance with his or her oath. I cannot see any basis whatever for such a conclusion. There was a considerable body of conflicting evidence as to the precise sequence of events and it is understandable that the jury would take time to assess it and to make findings. They had been forewarned that they might not reach agreement before the conclusion of a full day's deliberation and that in those circumstances they would be sequestered in a hotel. They were perfectly at liberty to continue their deliberations at the hotel if they wished and it is possible that they did. There is no reason to suppose that the announcement of a verdict forty minutes or so after their deliberations were formally recommenced the next day was indicative that any of them felt under pressure or had compromised his or her oath. Given the request of the jury to take a break overnight after deliberating between about 10am and 4.30pm, there was no need, in my view, to give any instruction, let alone admonition, either that evening or the following morning as to how they should approach the task of reaching a unanimous verdict. In Black v R [1993] HCA 71; (1993) 179 CLR 44, the High Court formulated a direction which was appropriate if the occasion arose to give it. The Court did not attempt to lay down any criteria by which the time such a direction should be given was to be determined. It merely contemplated that the direction might be given to the jury "if it appears that they are encountering difficulty in reaching a verdict" (per Mason CJ, Brennan, Dawson and McHugh JJ at 51) or "in a case where it appears that a jury has been unable to reach agreement after what is, in the circumstances of the particular case, a significant period" (per Deane J at 56). In this case the fundamental rule that a jury must be free to deliberate without any form of pressure being imposed on them might well have been infringed had the learned trial judge given such a direction on the Monday evening, particularly as the foreman had spoken of the possibility of agreement being reached so as to complete the matter at that time, perhaps leading to a decision by some of the jury that they might not feel comfortable with on later reflection. To have given the direction within the first hour of their deliberations on Tuesday morning could well have suggested that the judge thought it was time they made up their minds. The wisest course in the circumstances was to leave it to the jury to return a verdict in their own time unless the lapse of time became inordinate or there was reason to believe that a stalemate had developed. There is no substance in this ground of appeal. I would dismiss the appeal against conviction.

[76]

47 The appellant brought about the death of another. The question was whether he was justified in so doing. The test of quality of evidence is not identical to that referable to identity (Carr v R [1988] HCA 47; (1988) 165 CLR 314) or occurrence (M v R (supra)), but relates to the sequence or interaction of events providing justification. Given that an accused's version of events proffered to a jury is not necessarily conclusive of his or her innocence, the question for a jury is one dependent upon an evaluation of surrounding circumstances. Those surrounding circumstances may be described by witnesses to the event. In this case, the jury were required to consider the state of mind of the appellant at the time he wielded the blow and whether the surrounding circumstances made it reasonable to act in the way in which he did. In this case, there were a number of witnesses who gave varying but basically consistent versions. Counsel sought to elevate variance to incompatibility. It is natural that persons observing a rapid sequence of events, especially attended by violence or horror, concentrate on, or record different aspects of physical conduct. It is well demonstrated that recall of precise detail is either flawed by emotional response or distorted by interpretation. But general consistency by a variety of onlookers remains a reliable method of determination. To do otherwise would be to deny the validity of the jury process. Accepting differences, judgment is made according to the perception of those recounting the events. That is the strength of the criminal justice system dependent upon a jury. The process requires an interaction by the jury with the witness recounting the event, a process which is, in part, intuitive and in part, based on reason. An appellate court ought to test "quality of evidence" with an acknowledgment of the duality of that process performed by a jury. That acceptance would appear to accord with the observations of Brennan J (as he then was) in M v R (supra) where he said at 502:

At a glance

Court

Decision date

Before

Source

Judgment (108 paragraphs)

Shane Rudman v R [1997] TASSC 16 (14 March 1997)

Ground 1A - Hearsay as to Plumstead's Intentions

Ground 2 - Hearsay as to Mrs Plumstead's Observations

Ground 2A - Misrepresentation of the Defence Case

Ground 3 - Degree of Force Used in Self-Defence

Ground 5 - Alleged Errors of Fact by the Sentencing Judge

Parties

Cases Cited (11)