- Unreported Judgment
SUPREME COURT OF QUEENSLAND
R v Newlove  QCA 291
NEWLOVE, Christopher Brian
CA No 68 of 2018
SC No 736 of 2017
Court of Appeal
Appeal against Conviction
Supreme Court in Brisbane – Date of Conviction: 12 March 2018 (Applegarth J)
Date of Order: 18 October 2019
Date of Publication of Reasons: 10 December 2019
29 October 2019
Fraser and Morrison JJA and Davis J
Date of Order: 18 October 2019
CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – HOMICIDE – MURDER – INTENTION TO KILL OR CAUSE SERIOUS NON-FATAL INJURY – where the appellant was convicted of murder – where on the night in question the appellant had consumed the bulk of a bottle of vodka over about four hours before the deceased had arrived at the appellant’s unit – where the appellant had taken up to 20 Valium tablets over the course of the day and probably smoked cannabis – where a number of drugs were detected in the appellant’s blood sample after the deceased’s death – where the appellant had hit the deceased in the head with a brick – where the blow from the brick did not kill the deceased but probably rendered him unconscious – where the appellant used a machete to cut the deceased’s neck through to the bone, severing the jugular veins and vertebral artery – where the appellant created a fire which burned the front of the deceased’s body from the thighs to the torso – where the appellant put the brick in the laundry, washed the machete and moved the body out of the blood and tried to put some clean underwear on it and clean the body as best he could before calling Triple 0 – where the appellant told police that some men had barged into the unit and killed the deceased – where the appellant later admitted to lying about intruders injuring the deceased – where the appellant subsequently explained that he did not witness the deceased being attacked by some other persons – where the appellant was reported to have been behaving erratically and rambling after the deceased’s death – where the appellant agreed that he was angry at the deceased several days before the deceased’s death as the deceased was supposed to start a new job and did not bother going for it – where the appellant denied hitting the deceased with a brick and denied cutting the deceased’s neck with a machete – whether the appellant had a disordered mind at the time of the attack on the deceased – whether the appellant had the requisite intent, namely to kill or cause grievous bodily harm, at the time the wound to the neck was inflicted upon the deceased
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant challenges his conviction on the ground that the verdict is unsafe and unsatisfactory because it is not supported by the evidence – where it was contended that the jury would have been left with real doubt that the appellant was capable of forming, and actually did form, the requisite intention, because of the level of intoxication and the level of illogical behaviour of the appellant – where it was contended that that a number of irrational statements by the appellant to first responders and police were indicative of his intoxication or his mind being disordered – whether the appellant has a disordered mind at the time of the attack on the deceased – whether the level of intoxication rendered the appellant incapable of forming the requisite intent to kill or cause grievous bodily harm to the deceased
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – OTHER MATTERS – DRAWING OF INFERENCES IN A CIRCUMSTANTIAL CASE – where the appellant challenges his conviction on the ground that there was a misdirection on the question of drawing inferences in a circumstantial case – where it is contended that the jury should have been directed not just about intention, but also the process to be engaged in for the purpose of drawing inferences – where the submission was made that the learned trial judge addressed the issues of intention, circumstantial evidence and the drawing of inferences, and repeatedly framed the ultimate question to the jury as “Is there any other reasonable inference?” – where the contention was made that additional direction should have been given based upon an adaptation from the Bench Book – where it was submitted that the additional direction should have stated that if more than one inference was reasonably open on the facts the benefit of the doubt must be given – where it was submitted that the additional direction should state that if there was any reasonable possibility consistent with innocence, it was the duty of the jury to find not guilty – whether the jury was properly directed that it was a circumstantial case – whether the jury was properly directed on the drawing of inferences
Peacock v The King (1911) 13 CLR 619;  HCA 66, cited
R v Baden-Clay (2016) 258 CLR 308;  HCA 35, cited
R v Lewis  QCA 192,cited
R v PBA  QCA 213, cited
R v Spencer  AC 128;  UKHL 2, cited
M v The Queen (1994) 181 CLR 487;  HCA 63, cited
SKA v The Queen (2011) 243 CLR 400;  HCA 13, cited
B J Power, with S E Harburg, for the appellant (pro bono)
D L Meredith for the respondent
Guest Lawyers for the appellant (pro bono)
Director of Public Prosecutions (Queensland) for the respondent
FRASER JA: I agree with Morrison JA. I also agree with the additional reasons given by Davis J.
MORRISON JA: The appellant had been a friend of Mr Paul Heron for some 10 years. They met when they were homeless and maintained connection with one another. Mr Heron went to stay at the appellant’s unit, as he sometimes did, on 6 March 2015. During the course of the night the appellant used a house-brick, which normally acted as the front-door stop, to strike a severe blow to the side of Mr Heron’s head. That blow did not kill him, but probably rendered him unconscious.
Sometime after that the appellant used a machete to cut Mr Heron’s neck through to the bone, severing the jugular veins and vertebral artery. That wound killed Mr Heron.
The appellant then created a fire which burned the front of Mr Heron’s body from the thighs to the torso. The smoke set off a smoke detector in the unit, causing the appellant to rip it down.
The appellant called Triple 0 at 12.25 am. He told the operator that Mr Heron had “been stabbed and burned and, machete-ied”. He said that some men had barged in and killed him in the way he described. He told the same lie to the investigating police.
The appellant was convicted of Mr Heron’s murder. He challenges that conviction on two grounds. One is that the verdict is unsafe and unsatisfactory because it is not supported by the evidence. The second relates to a contended misdirection on the question of drawing inferences in a circumstantial case.
On the appeal there was no contest that the appellant had inflicted all the wounds on Mr Heron, and the contrary version was a lie. The central contention was that the evidence did not support the jury’s conclusion that the appellant had the requisite intent, namely to kill or cause grievous bodily harm, at the time the wound to the neck was inflicted.
The appeal was dismissed at the conclusion of the appeal hearing. These reasons explain why I joined in that order. I also agree with the additional reasons of Davis J.
Legal Principles – unsafe and unsatisfactory verdicts
The principles governing how this ground of appeal must be approached are not in doubt. In a case where the ground is that the conviction is unreasonable or cannot be supported having regard to the evidence, SKA v The Queen requires that this Court perform an independent examination of the whole evidence to determine whether it was open to the jury to be satisfied of the guilt of the convicted person on all or any counts, beyond reasonable doubt. It is also clear that in performing that exercise the Court must have proper regard for the pre-eminent position of the jury as the arbiter of fact.
In M v The Queen the High Court said:
“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.”
M v The Queen also held that:
“In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.”
Recently the High Court has restated the pre-eminence of the jury in R v Baden-Clay As summarised by this Court recently in R v Sun, in Baden-Clay the High Court stressed that the setting aside of a jury’s verdict on the ground that it is unreasonable is a serious step, because of the role of the jury as “the constitutional tribunal for deciding issues of fact”, in which the court must have “particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial.”
Further, as was said by this court in R v PBA, in the course of elucidating the applicable principles:
“The question is not whether there is as a matter of law evidence to support the verdict. Even if there is evidence upon which a jury might convict, the conviction must be set aside if “it would be dangerous in all the circumstances to allow the verdict of guilty to stand”. The Court is required to make an independent assessment of the sufficiency and quality of the evidence at trial and decide whether, upon the whole of the evidence, it was reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offence of which he was convicted.”
Evidence at the trial
The evidence at the trial came from a large number of witnesses. Consideration of the evidence of many of them is rendered redundant by the confined issues agitated on the appeal. For example, because the defence case at trial continued to assert that the attack on Mr Heron could have occurred in the way initially described by the appellant, 11 neighbours were called to relate what they heard or saw at times proximate to the attack, the evidence going to negate the possibility of someone else entering the unit. Also, the girlfriends of each of the appellant and Mr Heron gave evidence as to the relationship between the two men, and possible disagreements that might have been of relevance.
The appellant’s case on appeal accepted that he attacked Mr Heron, but urged that he lacked the requisite intent. Thus, the evidence of police witnesses about whether fingerprints were found, and whose DNA was present on what items, need not be examined, nor evidence from the police photographer, and the photographs themselves.
The remaining evidence can be dealt with by category. In what follows I intend to deal only with those aspects of the evidence which remain relevant in light of the central issue on the appeal.
The Triple 0 call
The jury listened to the recording of the Triple 0 call, as have I. The transcript is an accurate recording of what was said. The relevant aspects are:
the appellant said both who he was and where he was, identifying the address;
he identified who had been killed, both by name and his relationship to the appellant (“my best mate”);
he said what had happened: “… he’s been stabbed and burned, and machete-ied”;
he lied about how it happened, saying that “A few guys came in … just barged in and, whack, whack …”; when he gave evidence at the trial, the appellant said that he lied about the men coming in and hitting Mr Heron because he thought it looked like he had done it, and because he knew that it looked like murder;
he identified that Mr Heron was dead; and
he obeyed instructions from the 000 operator as to what to do.
In the course of the call the appellant made a comment that “there’s blood everywhere”, followed by two indistinct utterances ending with “like Satan”. It appears from the trial evidence that no further definition could be obtained as to what was said leading up to the words “like Satan”, and the recording itself does not assist.
Evidence from first responders
One of the ambulance officers who attended on the night, but who remained outside the unit, described the appellant when he came out with the police. He described him as a “very anxious sort of person … saying some strange things”. Asked if he could determine whether the appellant was affected by alcohol or drugs, he described him as having “a wild look … in his eyes” with dilated pupils, moving abnormally and breathing quickly. One of the strange things he was saying, according to that officer, was “Don’t handcuff me in front of my dog”. He described the things that the appellant was saying as “almost like gibberish”.
Forensic evidence as to blood and alcohol
Mr Griffiths, a senior chemist at Forensic and Science Services, prepared a certificate of analysis in respect of a sample of blood and urine taken from the appellant. As to the blood sample, no alcohol was detected but there were various levels of a number of drugs. They were: methylamphetamine, 0.05 mg/kg; Diazepam, 0.47 mg/kg; methadone, 0.02 mg/kg and THC (the major constituent of cannabis), 0.003 mg/kg. In addition there were traces of a prescription medication called Suboxone or Subutex. Mr Griffiths said the methamphetamine was not of a high value. The urine sample revealed similar findings consistent with what had been identified in the blood.
Mr Griffiths was asked about the half-life of each of the drugs and whether an estimate could be made of the level that would have been present at the time the appellant went into police custody. He made those estimates, arriving at: methylamphetamine, 0.10 mg/kg; alcohol, 0.20; Diazapam, 2.63 mg/kg; and methadone, 0.03 mg/kg. Mr Griffiths said the THC could not be extrapolated.
Dr Home, a clinical forensic medical officer, provided a certificate of analysis in relation to the alcohol and drugs in Mr Heron’s system. No illicit drugs were found. Alcohol was detected at 99 mg per 100 mL, which equated to a blood alcohol for breath at 0.099. Diazapam at 0.17 mg/kg was in the blood, but not in the urine, which Dr Home attributed to the fact that it was consumed not long before Mr Heron died. Dr Home said the level of the drugs were not such that he would be rendered unconscious by them, but he could be expected to have been somewhat drowsy.
Dr Home was asked to examine the certificate of analysis in respect of the appellant. His view was that the extrapolation of the known figures back to what they might have been nearly 11 hours earlier was fraught with difficulty and that observations from people who were at the scene at the time as to the appellant’s behaviour would be of more utility. In addition, the predictions were affected by the fact that the drugs found had competing impacts, with methylamphetamine being a stimulant but Diazapam, methadone and THC being depressants.
Dr Home identified the various possible impacts of nervous system depressants, such as alcohol. They included the well-known factors such as impairing the ability to perform tasks, deficit in intellectual performance, impact on judgment and perception, impact on reaction times and impact on critical judgment and perception. He pointed out that regular drinkers were likely to have a higher elimination rate, that is to say the rate at which alcohol was eliminated from the body’s system. Dr Home identified the various possible impacts methylamphetamine might have, such as increase in pulse and blood pressure, heightened levels of energy and wellbeing, symptoms of paranoia and confusion on occasion, symptoms of agitation and anxiety, impaired memory and judgment, hyperactivity, confusion, issues with vision and issues with co-ordination. Dr Home also agreed that if different drugs were used together there might be an amplification of effects.
Forensic evidence – blood stains
Mr Esaias, a forensic scientist, gave evidence in relation to conclusions that could be drawn from the blood spatter and blood stains in the unit. In summary his conclusions were that Mr Heron was incapacitated at the time he received the wound to his neck which severed the jugular and caused him to bleed out on the floor. Following that the body was moved from one position in the lounge to another in the kitchen, leaving transferred blood stains. Blood stains were found on the brick and on a machete which was located on the draining board in the kitchen. The smoke alarm was located on the floor in the hallway. It had blood staining on it which indicated that when it had been removed from the ceiling the person who removed it had blood on their hands.
By reference to the various patterns of blood stains and blood spatter, Mr Esaias concluded that Mr Heron’s head was on or near the floor when it was hit by the brick. From the blood spatters Mr Esaias concluded that there were at least three blows to the head. The breached jugular happened after the head was hit with the brick. After the breach of the jugular, the body was moved from the lounge room to the kitchen, leaving transfer stains about the head and shoulder areas of the body. The absence of blood pooling in the position where the body was found by police suggested that was not the site where the wound to the neck had been caused.
Mr Esaias summarised his conclusions in this way:
the injuries on the left side of the temple were caused when the body was in a position with the head very close to, or on, the floor;
that incapacitated Mr Heron;
following that the injury to the neck happened with the jugular being breached leaving a large saturation stain;
the body was then moved to the kitchen at a time when there was no longer active bleeding out, because there was no blood pooling on the tiles underneath the head; and
then the body was burned, in the place where it was eventually found.
Mr Esaias conceded that there was a possible or plausible scenario in which Mr Heron was incapacitated after the jugular was breached, but adhered to his conclusion that the head injury came first, followed by the breach of the jugular. He said that in whatever order it was caused, his view was that the victim’s head was in the position which he had indicated, close to or on the floor.
Forensic evidence - pathologist
Dr Storey, a forensic pathologist, discovered three main injuries: a blunt force injury to the left ear, a sharp force injury to the left side of the neck, and burns to the lower abdomen, groin and top of the thighs.
There was a complex of blunt force injuries to the left side of the head and ear, including laceration, abrasion and bruising. The rear part of the outside of the ear was torn off and the associated abrasion was 12 centimetres by 7.5 centimetres. The injuries were consistent with having been caused by the brick. There was no bony injury to the skull itself but there was some haemorrhaging immediately beneath the skin in that area.
The neck injury consisted of a deep cut 13.5 centimetres long. The wound penetrated down to the level of the bones in the neck, severing both jugular veins and the vertebral artery, but not the carotid artery. The injury was a single clean slicing wound which had impacted the vertebra, severing the vertebral artery, causing a piece of bone to break off.
There were other superficial injuries to the left shoulder consistent with a minor blunt force injury. There were also relatively minor wounds to the head and neck. The burns over the front of the body involved the abdominal wall in front of the abdomen, the groin region and the fronts of both thighs. The burns varied in severity, with the worst being in the region of the penis, where they were full thickness.
An examination by a neuropathologist revealed some swelling in the brain, and in particular, haemorrhaging on the right side of the covering of the brain, on the side opposite to the blunt force injury on the left side of the head.
The cause of death was the slicing injury to the left side of the neck. That injury was caused when Mr Heron was alive, because the blood loss indicated the heart was still beating after infliction of the wound.
The neck injury was consistent with having been caused by the machete. The force required to cut the neck to such an extent that the spinal cord was broken and part of the bone broken off was at the severe end of moderate to severe.
Given that it caused the haemorrhaging to the right side of the brain, the injury to the left side of the head would require severe force, sufficient to have resulted in unconsciousness.
Dr Storey’s opinion was that the swelling to the brain was not caused post-mortem. The swelling indicated a vital reaction, that is to say one which occurred while the victim was alive, and could take up to an hour to become visible. Therefore the blunt force injury to the left side of the head preceded the slicing injury to the neck. Further, the burn injuries did not reveal any evidence of a reaction that it would occur if the victim was alive at that time, which meant that the burns were within the same rough timeframe as the other significant injuries.
Dr Storey’s opinion was that death occurred within two to four hours of the blow to the head. The injury to the left side of the head occurred first, then the cutting of the neck, and in the context that it would take up to an hour before one would see the swelling in the brain, which was a reaction prior to death. It was his opinion that once the vertebral artery was cut, death would have occurred in a matter of less than five minutes.
Evidence by the appellant
The appellant described his relationship with Mr Heron, which had lasted over 10 years. They first met when the appellant was homeless and the two of them shared a squat for about two years. After the appellant obtained his unit Mr Heron would occasionally stay overnight. By March 2015 he would see Mr Heron once a week or once a fortnight. They would spend time playing music, watching TV, and consuming alcohol and drugs. The alcohol included vodka and port and the drugs included Valium, methamphetamine and cannabis.
On the night in question he had consumed the bulk a bottle of vodka over about four hours before Mr Heron arrived. As well, the appellant had taken up to 20 Valium tablets over the course of the day. He had probably smoked cannabis, but had not taken any methylamphetamine.
He went to bed and woke up when he heard the smoke alarm. He went out to find Mr Heron on the floor in a pool of blood, and with no pulse. He moved a brick, which was next to Mr Heron’s head, putting it in the laundry. He did that because he thought he would get the blame for it. He moved the body out of the blood into the kitchen area and tried to put some clean underwear on it. He tried to clean the body as best he could. Then he called Triple 0.
The appellant admitted that he made up the story of two intruders injuring Mr Heron saying: “I thought it just seemed to make more sense than what actually happened. I thought I was getting set up”. He explained that he did not observe Mr Heron being attacked by some other persons, but “It just seemed to make sense because I knew someone had – I knew that some person or persons had come in and hurt [Mr Heron], so I didn’t think that it was as big of a lie”.
The appellant agreed he was angry with Mr Heron several days earlier because Mr Heron was supposed to start a new job and did not bother going for it. He denied that he hit Mr Heron on the head with a brick, or cut him to the neck with a machete. He said that he did not know that a machete had been used.
When questioned as to why he didn’t explain various matters to police such as the burning or changing the underpants to show some form of respect, the appellant said he was “… still a bit drunk. I was shocked. I was sort of – yeah, didn’t know whether I was coming or going”.
The Triple 0 call was played, and the appellant was asked about the fact that he had referred to the machete in that call. The appellant said he just assumed a machete had been used. The appellant accepted that the machete had been washed, but denied that he had done that. He also denied that he had used it.
Asked why he moved the brick to the laundry, the appellant said “I thought it looked like I’d done it if I left the brick there”.
The appellant agreed that at the time he made the Triple 0 call he knew that Mr Heron was dead, that it looked like a murder and that “it looked like I’d done it”.
Police record of interview
The transcript of the police interview reveals a combination of comments and attitudes during the course of the time he was recorded. The following are indicative examples:
the appellant apologised to Mr Heron saying “I’m sorry mate”, but then almost immediately asked police to ring the appellant’s sister in Victoria; listening to the audio recording of the interview it is apparent that the appellant moved in that sequence from being upset when he apologised to calm when he asked the police to call his sister;
some of his reactions and comments were explicable by a state of shock, rather than irrational rambling or having a disordered mind; these include his comments that he “don’t give a fuck anymore” early in the interview immediately having said “It doesn’t look good”, and calling the police officer a “fuckin’ goose”; similarly, the appellant’s objections to being handcuffed and that he would “just shut down” unless he was treated with “a bit of respect”;
the appellant’s mood switched from crying when he apologised again, to calm when he gave an account of how long he had known Mr Heron;
the appellant plainly had a poor opinion of Queensland Police, which he expressed in frank terms; however, he did so relatively calmly, and it does not, in my view, necessarily portray a disordered state of thinking;
when the appellant’s rights were explained to him it is evident that he understood what they were, and responded appropriately;
the appellant’s mood was one of calm when he observed to the police that he [the appellant] was going to have to contact Mr Heron’s “missus”; the same applies to his explanation to the police about why his dog was barking, and the dog’s desire to protect him, when, at the same time, the appellant asked which morgue the body was to be taken to;
at other times the appellant’s apparent mood was one of anger but not distraction, for example when he protested at his treatment by the police and their refusal to let him deal with his dog; that led to the appellant threatening that “this is goin’ in the local papers”, and an apparent boast that “I know a lot of people in the media and this is a joke”; another boastful threat was that if anything happened to his dog while he was gone “look for a really, really big lawsuit, a really big one … I know some really big lawyers”; whilst foolishly boastful, those comments do not necessarily bespeak a disordered mind;
shortly after that, the appellant stipulated that he wanted a solicitor when he arrived at the police station, and that he was going to refuse to say anything without one; those comments were made in an apparently calm and rational manner.
In the later interview conducted at the Dutton Park Police Station, the appellant’s responses do not bear any hallmark of disordered thinking, irrational statements or influence of intoxication or drugs to such a level that he did not know what he was saying, or not in control of his thoughts.
Mr Power and Ms Harburg of Counsel, commendably appearing pro bono on behalf of the appellant, contended that the jury would have been left with real doubt that the appellant was capable of forming, and actually did form, the requisite intention, because of the level of intoxication and the level of illogical behaviour on behalf of the appellant. It was contended that a number of irrational statements by the appellant to first responders and police, contending that the appellant’s “generally strange behaviour and speech on 6 March 2015, [were] indicative of his intoxication or his mind being disordered for some other reason”. That included the character of the lies he told, the consumption of the drugs and alcohol on the afternoon and night of 5 March 2015, the various irrational statements made by him, such as the “like Satan” comment to the Triple 0 operator, the “Don’t handcuff me in front of my dog” request to police, and generally strange behaviour and speech.
The submissions frankly acknowledged the strength of the prosecution case on intention, and that the essential problem was that: “… absent some very significant evidence capable of creating a reasonable doubt about the appellant’s state of mine, the infliction of injuries such as those that were inflicted was capable of demonstrating intent to at least cause grievous bodily harm.”
In my view, the evidence indicated a substantial foundation upon which the jury could conclude that the requisite intention was held. The following sequence of events is based on evidence which it was open to the jury to accept, and now bears additional force in light of the fact that it is no longer contended that someone other than the appellant attacked Mr Heron.
First, the appellant selected the brick as a weapon. The evidence showed that it was normally used as a doorstop at the front door. Mr Heron was on the floor in the lounge room when he was hit. That necessarily means that the appellant retrieved the brick from the front door for the purpose of using it to hit Mr Heron, which required severe force.
Secondly, at some appreciable time later the appellant cut Mr Heron’s neck with a machete. The cut to the neck required force at the severe end of moderate. Significantly, that cut with the machete was made on a person who was already rendered inert by the blow to the head. Further, for that purpose the appellant selected the machete from all other knives that were available and possibly retrieved it from under the sofa where it was normally kept. It was this act which caused the death, and its deliberateness and the timespan between when Mr Heron was rendered unconscious by the blow to the head, mean that it was open to infer an intention to kill or cause grievous bodily harm.
Thirdly, the appellant burned Mr Heron’s body. For that purpose he had to put accelerant on the body of Mr Heron or on the pillow on which he was placed, and light it.
Fourthly, the appellant pulled the smoke alarm out of its fitting on the ceiling after he hit Mr Heron. That must be so given that Mr Heron’s blood was on the smoke alarm. The plain inference is that the smoke alarm went off because of smoke caused by Mr Heron or the pillow being burned.
Fifthly, the appellant did several other things from which the jury could infer intention. He hid the brick in the laundry, saying he did so because he thought he would get the blame for what had happened or that it looked like he had done it. He attempted to clean the machete by washing it, and attempted to clean up the blood.
Sixthly, the lies told when he called the Triple 0 operator, and when he spoke to police, are capable of indicating a consciousness of guilt. He may well have been in a state of shock at the time he spoke to the Triple 0 operator, but his responses indicated awareness of what had happened, to whom it had happened, the consequence, the fact that it looked like murder and the fact that it looked like the appellant had committed the acts. Further, he had the capacity to formulate the lie immediately.
The appellant relied on particular statements and actions for the contention that they would have led the jury to doubt the requisite intention. Many are dealt with in paragraph  above. Others include:
the “like Satan” comment on the Triple 0 call; not much could be drawn from this given there was no way to be sure as to what it referred; it might have been a reference to the way the supposed men were dressed, and therefore part of the lie; it might also have been a description of the blood soaked scene;
the descriptions of the appellant as being agitated, pacing up and down, wild eyed, and talking “gibberish”, do not add much, in my view; the appellant had just savagely killed his friend and the jury could conclude he was probably in shock; the same applies to some responses when police were detaining him, putting him into a protective suit, and taking him away;
the jury could conclude that the comment “Don’t handcuff me in front of my dog”, was hardly abnormal behaviour; according to the appellant, his dog was protective of him, did not know the police and would react badly to their presence, as it was doing, barking constantly; the comment is easily understood as meaning the dog will be agitated if it sees its master being “attacked”;
when asked if he wanted to have someone present he said “Yeah Pauly’s inside”; the jury could have understood that as meaning that he did want someone at the unit because his mate was inside; the appellant‘s probable state of shock would also explain it; and
in the course of the interview later police were asking the appellant about Mr Heron (“Paul”) and his girlfriend (“Bonny”); all of his responses were coherent; when the questions turned to Mr Heron’s criminal history the appellant gave details including that he had been in jail; then he asked, “None of this is going to be shown to Bonny or Paul or anyone, is it?”; he explained “people don’t like me tellin”; given the context in which the reference was made, the mention of Paul could easily be understood as a slip; Bonny and Paul were associated together and it was not long before that Paul had died.
It would not have been lost on the jury that the conduct referred to, particularly the comments made by the appellant, were made in the course of his telling the lie as to what happened. That fact, together with the likely state of shock, would have weighed heavily in the jury’s assessment of what was said and done.
The jury were able to see and hear the recordings of the appellant at the time he made (most of) the various comments or exhibited the relevant behaviour. It was open to the jury, in my view, to conclude that the appellant’s mind was not so disordered that he could not form the requisite intention at the time he inflicted the machete wound. None of the comments or conduct, separately or in combination, render such a conclusion unreasonable.
The evidence concerning the intoxication either by alcohol or drugs was not such that it compelled the jury to conclude that there was a doubt about the appellant’s intention. The tests were done up to 11 hours after the attacks. No alcohol was detected and the evidence of Mr Griffiths and Dr Home was that one could not work back to a theoretical figure. All that could be said was that there might have been alcohol in the appellant’s system.
There was no evidence that the methylamphetamine was at such a level that it necessarily deprived the appellant of the ability to inform intent. In particular the evidence of Dr Home was that one could not extrapolate safely in respect of methylamphetamine, and a better indicator is behaviour at the time. The same applies to the levels of Diazapam, methadone and cannabis. To that can be added the evidence of Mr Griffiths which was that different people have different levels of tolerance to the impact of drugs, and use over time could make a person more tolerant.
The combined effect of the evidence was not such that the jury had to conclude that the levels of alcohol or drugs meant that the appellant was incapable of forming the intention necessary for murder, or that there was such a doubt about that that they could not reasonably be satisfied of guilt.
This ground fails.
Ground 2 – misdirection on inferences
The contention on this ground was that the jury would have been directed not just about intention, but also the process to be engaged in for the purpose of drawing inferences. The submission made was that the learned trial judge addressed the issues of intention, circumstantial evidence and the drawing of inferences, and repeatedly framed the ultimate question to the jury as “Is there any other reasonable inference?”. However, the learned trial judge did not give directions in accordance with one recently approved in R v Lewis. It was contended that additional direction should have been given based upon an adaptation from the Bench Book, in the form:
“If more than one inference is reasonably open on the facts you find to prove … you must give the defendant the benefit of the inference in his favour”; and
“If there is any reasonable possibility consistent with innocence, it is your duty to find the defendant not guilty”.
The learned trial judge referred to the drawing of inferences on several occasions. Early in the summing-up it was explained to the jury that they were to have regard to all of the circumstances surrounding the killing and the appellant’s subsequent conduct in determining the issue of intention, the essential question being distilled as: “is there any other reasonable inference from the circumstances of the offending, the use of the brick, the use of the machete and the kind of neck injury that he inflicted on a seemingly defenceless man other than that the defendant intended to cause at least grievous bodily harm at the time he inflicted the fatal neck injury?”.
Later, in the course of dealing with circumstantial evidence, the learned trial judge directed the jury that “To bring in a verdict of guilty based entirely or substantially on circumstantial evidence, it is necessary that guilt should not only be a rational inference but also that it should be the only rational inference that could be drawn from the circumstances”.
His Honour then went on to characterise the case:
“… In this case we do not have a case where the defendant has said, ‘I killed the deceased but I didn’t intend it. I intended some lesser harm,’ or, ‘I didn’t have an intention’. Also we do not have a version from the defendant of what his intention was. He, as you saw in the witness box on Friday, denied that he killed the defendant. So in assessing circumstantial evidence and deciding whether you draw the inference which the prosecution invites you to make, you consider his conduct before, at the time of and after the act which is alleged to have killed him.
So the prosecution asks you to bring in a verdict of guilty based on what it submits is the intent of the defendant to at least cause grievous bodily harm. A finding of intent in that regard would be based entirely or substantially on circumstantial evidence, so it is necessary for you to find that an intent to cause at least grievous bodily harm is not only a rational inference, but that it is the only rational inference that could be drawn from all the circumstances.”
The second paragraph of that passage was repeated a short time later in the course of the learned trial judge’s discussion of the question of intent as an element of the offence of murder.
The judge reminded the jury, as would have been evident to them after the address by defence Counsel, that there was no substantial argument contesting that the appellant was the person who killed Mr Heron, and the consequence was that the defence submissions focussed on the issue of intent. Then on two subsequent occasions the jury were reminded by the learned trial judge that the question they had to address is whether the appellant had the requisite intent, and specifically:
“Is the only reasonable inference that is open, in all of the circumstances, including his state of intoxication, that he had that intent?”;
“You decide from all of the circumstances whether the only reasonable inference in the circumstances is that the defendant intended to inflict at least grievous bodily harm”;
“Given the circumstances of the killing, is there any reasonable hypothesis other than an intent to cause at least grievous bodily harm”, and
“is there any other reasonable inference from the circumstances of the offending, the use of the brick, the use of the machete and the kind of neck injury that was inflicted on a seemingly defenceless man than that the defendant intended to cause at least grievous bodily harm at the time the fatal injury to the neck was inflicted?”.
No redirections were sought by Counsel by either side.
In my view, reliance on the directions referred to in R v Lewis is misplaced. That case concerned a charge of grievous bodily harm with intent, the sole issue being the question of the appellant’s intent at the time he caused grievous bodily harm to the complainant. The offence was a domestic violence offence arising out of a relationship between the appellant and the complainant who had been living together. The relationship was marked by frequent verbal abuse, regular outbursts of aggression and, on occasion, actual violence. The complainant’s evidence was that each of them was violent towards the other, including applying physical violence. Count 1 (to which a plea of guilty was entered) involved the appellant throwing a jerry-can of petrol at the complainant, fuel splashing on her, and then the appellant threatening to set her of fire with a disposable lighter. The contested count involved verbal and physical abuse both ways, and the appellant then holding a bottle of petrol in one hand and an unlit cigarette and lighter in the other. The complainant gave evidence that he threatened to light the petrol and set her on fire and then threw the bottle towards her and lit it. However, her evidence was that she did not take the threat seriously because “he may have thrown it on me to scare me”. After the event, the complainant said that the appellant was “crying and screaming that he was sorry and that he would never intentionally mean to hurt me”.
In those circumstances, where the relevant act was borne out of a relationship that involved violence one to the other and previous threats meant only to frighten, there was an alternative hypothesis that the intention was only to frighten the complainant. In those circumstances the extra direction in the first paragraph of the passage below was warranted:
“Importantly, if more than one inference is reasonably open on the facts you find proved, that is, an inference adverse to the defendant – i.e., one pointing to his guilt – and an inference in his favour – i.e., one pointing to his innocence – you must give the defendant the benefit of the inference in his favour.
This is because, to bring in a verdict of guilty in a case such as this which is based substantially upon circumstantial evidence, it is necessary that guilt should not only be a rational inference but also that it should be the only rational inference that can be drawn from the circumstances.”
The circumstances of the present case are quite different from those in Lewis. In Lewis there was a distinct alternative raised on the complainant’s own evidence, and supported by past conduct, namely an intention to achieve a different result. Nothing of the kind applies in the present case. One struggles to conceptualise how it could, given the sequence of hitting on the head with a brick and then an appreciable time later cutting the neck so deep the blade reached the bone and severed the jugular veins and the vertebral artery.
The jury were properly directed that this was a circumstantial case and that it was necessary for them to find that an intent to cause at least grievous bodily harm was not only a rational inference, but that it is the only rational inference that could be drawn from all the circumstances. Nothing more was required.
This ground fails.
DAVIS J: I joined in the order dismissing the appeal.
I agree with the reasons of Morrison JA but wish to add some remarks of my own in relation to the second ground of appeal.
The appellant’s complaint reflected in ground 2 is not about what the learned trial judge said to the jury during the summing up, but what his Honour did not say.
As there was no application for redirections, the appellant could only succeed on ground 2 if the failure to give the directions which the appellant now submits should have been given, occasioned a miscarriage of justice in that a reasonable prospect of acquittal was lost.
The appellant’s submission was that R v Lewis provided an “example direction” concerning circumstantial evidence and that the trial judge’s failure to direct in accordance with that example direction occasioned a miscarriage of justice. The specific directions which should have been given, it was submitted, are in these terms:
“a. ‘If more than one inference is reasonably open on the facts you find proved … you must give the defendant the benefit of the inference in his favour’; and
b. ‘If there is any reasonable possibility consistent with innocence, it is your duty to find the defendant not guilty’.”
Lewis did not establish any matter of general principle. The Court of Appeal did no more than find that in the circumstances of that case the directions suggested “could perhaps have been added to the trial judge’s summary of the defence case” (emphasis added).
It will rarely, if ever, be useful for an appellant to attack the adequacy of a summing up by reference to another summing up, in another case, based on different facts and issues unless the other case establishes some matter of principle. A summing up must be tailored to the circumstances of the particular case being tried. Lord Hailsham in R v Spencer, a case concerning the adequacy of a summing up given to a jury who was required to assess the evidence of a mentally ill witness observed:
“… the modern cases, quite correctly in my view, are reluctant to insist on any magic formula or incantation, and stress instead the need that each summing up should be tailor-made to suit the requirements of the individual case.”
The real issue is whether the summing up in this case was adequate having regard to established principles which govern the content of a summing up.
The duty of a trial judge in summing up a case to a jury includes instructing the jury on the onus and burden of proof and “identify[ing] the issues in the case and relat[ing] the law to those issues”.
Here, the learned trial judge properly directed the jury on the burden and onus of proof. His Honour directed the jury, consistently with Peacock v The King, that an inference of guilt could only be drawn against the appellant where there were no other reasonable hypotheses consistent with innocence. His Honour identified intention as a major issue in the case and then meticulously analysed the evidence relevant to intention and the respective arguments of the prosecution and defence.
No proper criticism of the summing up was open.
(2011) 243 CLR 400 at -;  HCA 13; see also M v The Queen (1994) 181 CLR 487 at 493-494.
M v The Queen at 493; internal citations omitted. Reaffirmed in SKA v The Queen.
M v The Queen at 494.
(2016) 258 CLR 308 at -;  HCA 35; internal citations omitted.
 QCA 24, at .
Citing Hocking v Bell (1945) 71 CLR 430 at 440;  HCA 16.
Baden-Clay at 329, citing M v The Queen at 494, and MFA v The Queen (2002) 213 CLR 606 at 621-622 -, 623 ;  HCA 53.
 QCA 213 at .
Appeal Book Vol 2 (AB2) 381-383.
AB2 312 line 41.
AB2 330 lines 7-21.
AB2 29 line 5.
AB2 33 lines 7-10.
AB2 46 lines 2-3.
AB2 46 lines 6-11.
AB2 47 line 9.
AB2 47 line 13.
Exhibit 10, AB2 361.
Exhibit 45, AB2 364.
That sample was taken from femoral blood. The level would have remained relatively stable between death and when it was obtained.
AB2 206 lines 31-38.
AB2 207; Mr Griffiths said much to the same effect: AB2 150.
AB2 169 lines 27-40, AB 174.
AB2 181 line 16.
AB2 252, AB2 253 lines 8-20.
AB2 254 lines 35-44, AB2 255 lines 24-33.
AB2 296 line 14.
AB2 297 line 27.
AB2 297 lines 38-40.
AB2 305 line 41, AB2 306 lines 28-32.
AB2 307 line 24.
AB2 309 lines 20-24.
AB2 314 lines 11-16, AB2 315 lines 12-15.
AB2 313 line 35.
AB2 330 lines 7-10.
Appeal transcript 1-3 lines 28-31.
According to the evidence of Dr Storey, that could have been up to an hour after Mr Heron was hit with the brick: AB2 249 line 28, AB2 262 line 11 and AB2 262 line 31. It was unnecessary for the jury to form a concluded view about the exact time period.
AB2 296 line 14.
AB2 313 line 34.
Asking about whether “we need pockets” (AB 385); asking were they “takin’ my mate away now” (AB2 388); saying he wanted to keep an eye on his wallet (AB 385-386).
 QCA 192 at .
Appeal Book Vol 1 (AB1) 33 lines 19-23.
AB1 35 lines 31-34.
AB1 35 line 43 to AB1 36 line 9.
AB1 47 lines 12-17.
AB1 51 lines 4-7.
AB1 52 lines 18-20.
AB1 57 lines 3-5.
AB1 57 line 20.
AB1 57 lines 27-31.
 QCA 192.
Lewis at .
Lewis at -.
Lewis at .
Lewis at .
Lewis at .
Lewis at .
Dhanhoa v The Queen (2003) 217 CLR 1 at  and R v Huston  QCA 121.
R v Lewis  QCA 192.
Appellant’s written submissions, para 20.
R v Lewis  QCA 192 at 24.
Cases identifying circumstances where a jury must be cautioned in relation to some categories of evidence or witnesses are examples of cases establishing principles which must be followed: Longman v The Queen (1989) 168 CLR 79, Pollitt v The Queen (1992) 174 CLR 558, Bromley v The Queen (1986) 161 CLR 315.
Carr v The Queen (1988) 165 CLR 314 at 320-322, R v S  2 Qd R 322 at 324, R v Fox  1 Qd R 640 at , Melbourne v The Queen (1999) 198 CLR 1 at , and WGC v The Queen (2007) 233 CLR 66 at .
 AC 128.
RPS v The Queen (2000) 199 CLR 620 and R v Mogg (2000) 112 A Crim R 417 at  and generally on the trial judge’s duty to comment on the facts and issues, see McKell v The Queen (2019) 264 CLR 307.
AB1 p 35.
(1911) 13 CLR 619 at 651-652 and 675 recently considered in R v A2  (2019) 93 ALJR 1106 at .
AB1 pp 35, 51 and 57.
AB1 pp 35-57.
- Published Case Name:
R v Newlove
- Shortened Case Name:
R v Newlove
 QCA 291
Fraser JA, Morrison JA, Davis J
10 Dec 2019
No Litigation History