R v Fitzgerald[1999] QCA 109

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

CA No 183 of 1998

Brisbane

[R v Fitzgerald]

THE QUEEN

v

DARREN MICHAEL FITZGERALD Appellant

McPherson JA

Davies JA

White J

Judgment delivered 9 April 1999.

Separate reasons for judgment of each member of the Court; each concurring as to the order made.

APPEAL AGAINST CONVICTION DISMISSED.

REASONS FOR JUDGMENT - McPHERSON JA

Judgment delivered 9 April 1999

1. The appellant was found guilty at a trial in the Supreme Court of charges of murder, burglary, and armed robbery in company with personal violence. This is his appeal against conviction on the count of murder. He has not appealed against his conviction on the other two counts, to which he pleaded guilty.
2. On 25 January 1997 a Mr Larry Street was living at a house at Vulture Street, East Brisbane. About 11.00 pm on that day he was at his home with two other persons, a Mr Michael Turner and Ms Alexandra Doran, who was the victim of the murder. They were sitting talking when someone came to the front door and demanded to be let in. It was the appellant, who was accompanied by two other persons. He was demanding to be supplied with marijuana. After some altercations, he forced his way in. He was wearing a beanie pulled down over his face, and carrying a sawn-off shotgun, which, as later events showed, was loaded and ready to fire.
3. There was a lot of shouting and confusion, and the appellant ordered those present to lie on the floor. Then he pulled Street to his feet and forced him into the dining room, where he repeatedly struck him about the head with the butt of the gun, while screaming "Where is it ? Where is it ? Where are the drugs ? Where is the money ? Where is it ? I want it now." Street produced some money and some cannabis. He was taken into the bedroom, where some more money was produced. The appellant again clubbed Mr Street with the gun until he was knocked unconscious.
4. The appellant then turned his attention to Turner and Ms Doran who were on the floor in the lounge. According to Turner, Ms Doran was sitting on the floor, holding her dog, which was barking. One of the intruders, possibly the appellant, said something to the effect "Shut the dog up, or we will shoot it". The appellant approached Ms Doran, and said "See this", indicating the shotgun. She gave him the finger, and said "fuck off". Turner testified that the appellant poked the gun at the left side of Ms Doran's head, and it suddenly went off. She was killed by a single shot, which destroyed her head. The intruders fled.
5. The appellant was interviewed by police on 5 February 1997. He told them he was the one who had fired the shot. "I didn't mean it, though", he said, "the gun just went off. I didn't mean it. I'm not a killer". He had intended only to scare her. He explained that he had bought the shotgun from someone else, and had sawn it off himself. He had gone to Street's house to get drugs and money. The gun was loaded and "cocked". By that, it seems to have been meant that the barrel and the butt of the gun were not "broken" but together and ready to fire. He admitted that he put the gun to the head of Ms Doran and that his finger was on the trigger; but he said he did not remember pulling the trigger. Afterwards, he threw the gun into the Brisbane River. It was never recovered; but Dr Naylor confirmed from his post mortem examination of the victim that the shot had been fired at very close range.
6. When the appeal first came on for hearing, the appellant was not represented. The hearing was adjourned, and the Bar Association arranged for Mr Andrew Hoare of counsel to appear on behalf of the appellant pro bono, as it is said. Mr Hoare is a junior at the Bar, but he performed his function with competence and ability. There can be no complaint about the standard of representation which the appellant enjoyed on the appeal.
7. Essentially, the appeal was based on what was said to be a misdirection or misdirections by the trial judge in summing up. It must be said that in some respects the summing up was perhaps not as clear as it might have been. Because, in the last resort, the Crown relied on the proviso in s 668E(1A) of the Criminal Code in order, if need be, to sustain the conviction, it seems to me to be desirable and convenient to consider the facts established by the evidence at the trial in the light of the relevant provisions of the Code before addressing the question of whether the jury were correctly directed.
8. Apart from a verdict of Not Guilty to both murder and manslaughter, the only two possible verdicts open to the jury were guilty of murder or guilty of manslaughter. A verdict of murder might have been given on the basis of either s 302(1)(a) or s 302(1)(b) of the Criminal Code. According to s 302(1)(a) a person who kills another is guilty of murder if he intends to cause the death of the victim or to do him or her some grievous bodily harm. Under s 302(1)(b) it is murder if death is caused by means of an act done in the prosecution of an unlawful purpose "which act is of such a nature as to be likely to endanger human life".
9. With respect to the first alternative, it is settled by the decision of the High Court in R v Mullen (1938) 59 CLR 124 that, on a charge under s 302(1)(a), the burden is on the prosecution to prove the requisite intention as an element of this form of murder. It follows that what used to be called the "second limb" of s 23, and is now s 23(1)(b) of the Code, is of no relevance to a charge of murder in this form. Section 23(1)(b) operates to exculpate or excuse an offender from criminal responsibility for "an event which occurs by accident". The event in this context is the death of the victim (R v Taiters, ex p Attorney-General [1997] 1 Qd R 333, 335), and a death cannot be regarded as occurring by accident if either death or grievous bodily harm was in fact intended by the offender. In some instances, where the offender is in a state or condition such as non-insane automation,^[1] sleep-walking or concussion,^[2] s 23(1)(a) may exempt the offender from criminal responsibility for his act as being one that occurred independently of the exercise of the will of that person, that is, involuntarily; but such instances are rare and the present case is certainly not one of them. Even if the appellant was in an aggressive or "hyped up" state, he was, in his actions leading up to and including the discharge of the firearm, plainly not in a condition that was capable of attracting the operation of s 23(1)(a) of the Code. In any event, if he were, it would mean that the Crown would have failed to prove the intention requisite for murder under s 302(1)(a).
10. Here, therefore, the prosecution case based on s 302(1)(a) did not require a direction under s 23(1)(a). Nor was it a case that called for a direction under s 23(1)(b) of the Code, which displaces criminal responsibility for "an event which occurs by accident". It is true that, after the incident, the appellant said he did not mean to kill Ms Doran and that his doing so was an accident. There was also evidence from Mr Turner, who saw what happened, that the shooting appeared to him to be an accident. But that, as Latham CJ explained in R v Mullen (1938) 59 CLR 124, 128-129, did not raise a claim to exemption from criminal responsibility based on "accident" within the meaning of s 23(1)(b). Speaking of s 23 (as it then was) his Honour said (at 128-129):

"In some cases this section may operate so as to provide an excuse for an act which would otherwise be criminal, but it is unnecessary to have recourse to the section in the case of wilful murder, where by the statutory definition itself, intention is expressly made a necessary element in the offence... It is sufficient to ask what rule is to be applied when a defence of accident is raised to a charge of murder. A defence of accident in a murder case is really a contention that the Crown has not proved the essential element of intention in the crime charged."

See also what was said by Starke J in the same case (59 CLR 124, 134) and by Dixon J (59 CLR 124, 136). The offence of wilful murder, as it was then called and defined under s 302(1), corresponded with the current definition of murder in s 302(1)(a) of the Code.

12. If (which is by no means impossible) the jury were not satisfied beyond reasonable doubt that there was such an intention, then murder as defined in s 302(1)(b) fell to be considered. The offence of murder under that provision does not require proof of intention to kill or to do grievous bodily harm. That is so because s 302(3) makes it immaterial that the offender did not intend to hurt anyone. Under s 302(1)(b) it is murder if death is caused by means of an act "of such a nature as to be likely to endanger human life" done in the prosecution of an unlawful purpose. Here there can be no doubt about the unlawful purpose. At the time he killed Ms Doran the appellant was carrying out a robbery and the evidence shows it was something that was being done in the prosecution of that purpose. That element was a matter for the jury to determine; but there was only one way in which they could have decided it. The appellant was convicted of armed robbery and, it may be recalled, he has not appealed against that conviction, to which in fact he pleaded guilty.
13. What remained to be proved under s 302(1)(b) was that the victim's death was caused by means of an act of the nature of that described in that paragraph. Section 23(1)(a) is capable of applying to it if the "act" is one that occurred independently of the exercise of the offender's will. Whether or not that was so in this case depended, and depends, to some extent on what constituted the "act" for the purpose both of s 302(1)(b) and of s 23(1)(a). For the purpose of s 23(1)(a) the "act" means "some physical action apart from its consequences", while "event" in s 23(1)(b) means "the consequences of the act": see R v Taiters [1997] 1 Qd R 333, 335. I would regard the act in this instance as the appellant's action in presenting the loaded firearm, with his finger on the trigger, to the head of the victim Ms Doran. It is admittedly possible to regard the "act" as extending to the pulling of the trigger to discharge the firearm. However, the act which has to be considered in the context of the words in s 302(1)(b), is an act "that is of such a nature as to be likely to endanger human life". Once an act of that nature is capable of being identified, s 23(1)(a) falls to be considered in relation to it, and not in relation to other acts or events that may follow it.
14. The question for the jury, then, was whether the act of presenting or pointing the loaded firearm, with the safety catch off and his finger on the trigger, to the head of Ms Doran was such an act. In Hind & Harwood (1995) 80 A Crim R 105, 142, I am reported as having said:

"In my respectful opinion it was open to the jury to conclude that Hind's act, in the circumstances in which he did it, of pointing a sawn-off loaded rifle at Bowering at very close range and with the safety catch off, was an act of such a nature as to be likely to endanger human life.  That being so, it would have been perverse of the jury to decide that the death of Bowering which resulted from that act was a consequence so unlikely that an ordinary person would not have foreseen it: van den Bemd (1993) 70 A Crim R 489)."

Likewise, Pincus JA said (at 139):

"In my respectful opinion, on the reasoning I have expressed with respect to s 302, it was quite open to the jury to take the view that s 23 was excluded.  Indeed, if the jury were satisfied that Hind's act was "of such a nature as to be likely to endanger human life", it would have been perverse of them to hold that Bowering's death was nevertheless so unlikely a consequence that an ordinary person could not reasonably have foreseen it."

As we were reminded on this appeal, the decision in Hind & Harwood was overruled in R v Barlow (1997) 188 CLR 1; but that was because of the view that the High Court adopted concerning the effect of s 7 and s 8 of the Code with respect to the criminal responsibility of secondary offenders under those provisions. What was said by Pincus JA and me on the subject of s 302(1)(b) (or, as it then was, s 302(2) of the Code) was, as the Crown contended on the appeal in the present case, not affected by anything said by the High Court in R v Barlow. That may be thought to be confirmed by the fact that in the decision in Hind & Harwood, Pincus JA formed a majority with Fitzgerald P, whereas I dissented from the majority decision in that case.

15. What Pincus JA and I said on the subject of s 302(1)(b) in that case is therefore capable of being applied in this. On the trial of the appellant, that issue was one of fact for the jury; but both Pincus JA and I said the jury in that case would have been "perverse" to decide that holding a loaded firearm to the head of a victim was not an act that satisfied this element of s 302(1)(b). In this case, the safety catch of the firearm was off. That is evident here from the fact that the firearm discharged. Although the weapon was never recovered from the Brisbane River or forensically examined, there was nothing to suggest that there was any mechanical fault in the safety catch, or that the weapon was prone to discharge with the safety catch on. Indeed, the appellant had, not long before the victim was shot, held the firearm by the stock and wielded it to club Street into unconsciousness without the firearm discharging of its own accord. If the safety catch was on, then the only rational conclusion is that, at some time between then and when he shot Ms Doran, the appellant had moved the safety catch to the off position.
16. It is true that the appellant in the present case said in evidence that, at the time he pointed the gun at Ms Doran, he did not know whether the safety catch was on or off; but that goes no further than to confirm that his act of pointing it at her without ensuring that the safety catch was on was an act "of such a nature as to be likely to endanger human life". The test of whether it answered that description is an objective one. See Stuart v The Queen (1974) 134 CLR 426, 438. It does not depend on whether the appellant believed that the safety catch was on, although, if he had held such a belief on reasonable grounds, it is possible (I say no more) that s 24 of the Code might have entered into the question. As it is, it is plain from his own evidence at the trial that he held no belief one way or the other about the state or condition of the safety catch at the time he pointed it at Ms Doran.
17. Section 23(1)(a) is, as I have said, literally capable of applying to the "act" of the appellant in the present case. But for reasons I have given, there was no evidence capable of being considered by the jury that the appellant's act of pointing the loaded firearm at the head of Ms Doran was something that occurred independently of the exercise of his will. Whether the ensuing death of the victim could be considered "an event which occurred by accident" is perhaps another matter. For my part, I have some difficulty in seeing how s 23(1)(b) and s 302(1)(b) can be read in conjunction in a case like this. The intention of s 302(1)(b) seems rather to be that, once it is established that an act was done of such a nature as to be likely to endanger human life, then the offender is guilty of murder if death is caused "by means of" that act, irrespective of whether or not the ensuing event or result (i.e. the death) occurs by accident, subject always to proof of the element that the act was done in the prosecution of an unlawful purpose. My impression of what was said by Pincus JA in Hind & Harwood is that he adopted the same view of the matter in saying, as he did there, that it would have been perverse of the jury, once satisfied that Hind's act of pointing the loaded firearm was of a nature likely to endanger human life, to find that the ensuing death was nevertheless so unlikely a consequence that an ordinary person could not reasonably have foreseen it. Once the firearm (for whatever reason) discharged, it was, at that range, practically inevitable that death would be caused to the person at whom it was pointed. There was therefore little room for the application of s 23(1)(b) to the facts of the present case. On any view of it, death was a foreseeable outcome, which, briefly stated, is the test that is now to be applied in relation to "accident" under s 23(1)(b). See R v van den Bemd [1995] 1 Qd R 401; affirmed (1994) 179 CLR 137; and R v Taiters [1997] 1 Qd R 333, 335-338.

There, is however, binding authority to the effect that s 23(1)(b) is capable of operating in conjunction with s 302(1)(b). Speaking of the same provision, which was then s 302(2), Gibbs J in Stuart v The Queen (1974) 134 CLR 426, 438 said:

"To constitute the second element it is enough that the act which caused the death was in fact likely to endanger human life, whether or not the offender knew that it was dangerous. Section 302(2) speaks of the nature of the act, not of the knowledge of the offender, and it was rightly said in Reg v Gould and Barnes, that the test which it requires to be applied is 'purely objective'. Moreover, s 302(2) does not require the offender to have acted with any particular intention, and even without the concluding words, which expressly state that it is immaterial that the offender did not intend to hurt any person, the second paragraph of s 23 would have the effect that the result which the offender intended to cause by his act is immaterial. However, the apparent severity of the operation of s 302(2) is mitigated by the provisions of the first paragraph of s 23, since if the death is an event which occurs by accident - that is, if it was a consequence which was not in fact intended or foreseen by the accused and would not reasonably have been foreseen by an ordinary person (Kaporonovski v The Queen ( (1973) 133 CLR 209, 231-232) and the cases there cited - the accused will not be criminally responsible."

That was a case in which the accused, in the prosecution of the unlawful purpose of extortion, set fire to a crowded nightclub resulting in the deaths of many of the people who were inside it. It is quite clear that Gibbs J (with whom Menzies and Mason JJ agreed) regarded s 23(1)(b), as it now is, as capable of applying to the case. His Honour concluded (134 CLR 426, 439) that it was open to the jury to find that the lighting of the fire when people were in the night club was an act likely to endanger human life and that the "resulting death was foreseeable and not an accident". The same, I consider, is true in the present case; but it remained a matter that it was for the jury to determine. It has the practical effect in a case like this of reducing almost to vanishing point the distinction between murder under s 302(1)(b) and manslaughter; but that is a consequence of retaining in the Code the provision in s 302(1)(b), which is a relic of the old felony-murder rule at common law. The only readily identifiable difference now is that for murder under s 302(1)(b), but not for manslaughter in a case like this, it is necessary to establish that the potentially lethal act was done "in the prosecution of an unlawful purpose".

18. With these matters in mind, it become possible to turn to the summing up to see whether it conformed to the law as it has been stated here. In doing so, it is necessary always to bear in mind that many of the questions referred to here were questions for the jury to determine.
19. His Honour began by directing the jury on the question of manslaughter. If the verdict of murder can be sustained it is not necessary to review in any detail what he said on the subject of manslaughter. In the context of s 302(1)(a), his Honour directed the jury that the first basis for the prosecution case of murder was that, at the time the accused killed Ms Doran he intended to cause her death or intended to do her some grievous bodily harm. "If you found this element proved beyond reasonable doubt", he said, "then what was at that stage an unlawful killing or manslaughter becomes murder. The element raises the question of intention". His Honour then went on to discuss the evidence on which such an intention was capable of being founded.
20. No fault can be detected in these directions. It is true that the summing up on this form of murder had begun with a direction on the subject of manslaughter, which took the learned trial judge to an explanation of what was meant by "accident" in s 23(1)(b). At the conclusion of his discussion of that matter, his Honour said that, if the Crown had not proved beyond reasonable doubt that the discharge of the shotgun and the killing of Ms Doran was not an accident, the jury would find the appellant not guilty of murder and also not guilty of manslaughter. Conversely, if the Crown had satisfied the jury beyond reasonable doubt that the discharge of the shotgun was not an accident, the jury would then go on to consider the first basis for the murder charge against him, which was whether the appellant had intended to cause her death or to do her some grievous bodily harm.
21. This form of summing up was, having regard to what was said in R v Mullen, open to the possible objection that it approached the matter of "accident" as if it were in law a ground of exculpation or excuse for murder on this basis instead of being, as it really was, simply a matter of evidence to be considered in determining whether or not the appellant possessed the requisite intention. It could not, however, have resulted in any prejudice to the appellant provided his Honour made it clear (which he did) both that the requisite intention had to be proved beyond reasonable doubt, and that the Crown bore the onus of establishing that the death had not occurred by accident. It is true that, towards the end of the summing up, the learned judge said:

"If you find the accused has failed to prove the killing of Alexandra Doran was not by accident, as I've explained it, then he will not be guilty of murder and not guilty of manslaughter."

This was unfortunate, because it suggested that an onus rested on the accused to prove that the killing was accidental; but his Honour's attention was drawn to it almost immediately. He recalled the jury and explained that he had made a mistake. "As I told you", he said, "the Crown always bears the onus of proof of this man's guilt, and it is proof beyond reasonable doubt". So, he added, if he had said what it was suggested he had said, it was a slip of the tongue.

22. No complaint was made either at the trial or on appeal about his Honour's error or his correction of it. It was, however, not the only mistake in the summing up. In referring to the question of manslaughter, his Honour had, as was later pointed out in the Crown's written outlines on appeal, previously directed the jury as follows:

"It is for the Crown to prove that there was no accident; in other words, in dealing with this second aspect of section 23, the Crown must prove beyond reasonable doubt that the event which the accused says was an accident was foreseeable and, therefore, was not an accident. So in dealing with this matter of an unlawful killing of Alexandra Doran and this second aspect of the matter of accident, you must ask yourself these two questions: did the accused kill the deceased and, if he did, was the death such an unlikely consequence of his actions that an ordinary person would not reasonably have foreseen it ? If you answer yes to both questions, then you must be satisfied beyond reasonable doubt that the accused unlawfully killed her."

A statement to similar effect was repeated a little later in the summing up.

23. This direction was erroneous. His Honour had been correct in saying that there were two questions to be answered before the appellant could be found guilty of having unlawfully killed Alexandra Doran. He was also correct in saying that an affirmative answer to the first question was a prerequisite to a verdict of guilty; but he was wrong in saying it about the second question. If the jury had answered Yes to the second question, then the appellant should have been acquitted altogether. To the question whether the victim's death was "such an unlikely consequence of his actions that an ordinary person would not reasonably have foreseen it", an affirmative answer would have provided an exemption or excuse under s 23(1)(b) to the alternative charge of manslaughter or unlawful killing.
24. What his Honour should have told the jury was, having regard to the way in which he put the question to them, that if they answered Yes to the first question, and No to the second, then they would arrive at a verdict of guilty of unlawful killing or manslaughter. Curiously, however, no one at the trial noticed the error that had been made. No redirection was sought in respect of it, and it was not until the Crown's supplementary written outline was provided to this Court on appeal that the error came to light. The Crown submitted that, in the context in which the error occurred, it would or must have been apparent to the jury, who would accordingly not have been affected by it. There is plainly some force in this submission, especially in view of the fact that it was the manslaughter rather than the murder verdict that his Honour was considering when the mistake was made. But the error also had some potential to influence the verdict of the jury on the charge of murder, which is why the appeal against conviction has been approached in the manner adopted in these reasons.
25. In the end, the critical question is whether the jury would inevitably have reached a verdict of guilty of murder despite the error subsequently identified in the summing up. It is sufficient for this purpose if only the alternative charge of murder based on s 302(1)(b) of the Code is considered here. As to that, the question is, as I have said, whether the appellant caused the death of Ms Doran by means of an act, done in the prosecution of an unlawful purpose, of such a nature as to be likely to endanger human life. Under s 303(3), the absence of any intention on his part to hurt her was and is immaterial. There can, of course, be no doubt that it was "by means of" an act on his part that she was killed. The appellant himself admitted, both to the police and in his evidence at the trial, that he was pointing the shotgun at her when it discharged. There is also no doubt that the act was done in the prosecution of an unlawful purpose. The jury found the appellant guilty of armed robbery, and the case before us has none of the complications exemplified in Hughes v The King (1951) 84 CLR 170. The killing was an act distinct from the robbery although it was done in the prosecution of that unlawful purpose.
26. The jury were appropriately directed on each of the foregoing matters. The remaining question was whether the act by means of which the death was caused was of such a nature as to be likely to endanger human life. I have already given reasons for saying that it was. Of course, the question was one to be determined by the jury at trial and not by this Court on appeal from their verdict. But the question was put directly to the appellant in cross-examination. Mr Martin of counsel for the Crown asked him:

"Would you agree with me that pointing a loaded, cocked firearm, with your finger on the trigger and no idea of the status of the safety catch, at a human being while you are in a state of aggression is a dangerous thing to do?"

To which, the appellant answered "Yes, it is".

27. His Honour referred to this question and answer in the course of his summing up on the charge of murder under s 302(1)(b). Having done so, he went on:

"It's a matter for you, ladies and gentlemen, but I'd be surprised if you had any difficulty in being satisfied beyond reasonable doubt that the act which caused the death of Alexandra Doran, that is the pointing of the shotgun in the condition appearing in the evidence, was an act of such a nature as to be likely to endanger human life."

It was submitted by Mr Hoare for the appellant that this part of the summing up was expressed in a form which pre-empted the question to be decided by the jury and, in effect, deprived them of the right to decide what was essentially a question of fact. With respect, I do not agree. Elsewhere, his Honour was careful to leave it to the jury to decide what the "act" consisted of. His saying that it was a matter for the jury whether the pointing of the gun was, in the circumstances disclosed by the evidence, an act of such a nature as to be likely to endanger human life and that he would be surprised if the jury had any difficulty in finding that it was, did not involve a direction or dictation by the judge to the jury of what their decision or verdict should be. At the beginning of the summing up, his Honour had given the standard direction about the respective functions of judge and jury. He told them the facts were for them to decide, and also that if, in commenting on the facts, they thought he had formed a particular view of the facts:

"You may pay what respect you think ought to be paid to any such view which you think I have formed, because ladies and gentlemen, the facts are for you. Because you are the judges of the facts, you may reject any view which you may think I have formed about the facts."

And so on. The submission that his Honour directed the jury to take a particular view of this element of the offence under s 302(1)(b) cannot, in my respectful opinion, be sustained.

28. The question is whether there was anything else to be decided about which the jury might have entertained a reasonable doubt. All that remained was whether the death that resulted from the discharge of the firearm was an event that occurred "by accident". The question falls to be determined by an objective assessment of the likely danger to human life of presenting a loaded firearm, with the safety catch off and a finger on the trigger, to the head of another person, and from only a short distance away. As it was expressed in R v Taiters [1997] 1 Qd R 333, 338, the test is whether "an ordinary person in the position of the accused would have foreseen the event as a possible outcome". The event in this instance was the death of Ms Doran. To my mind, there could have been only one answer to that question. Despite the error in the summing up, the jury must inevitably have arrived at the verdict which they in fact returned. The appellant was under s 302(1)(b) guilty of the murder of Ms Doran.
29. The appeal against conviction should be dismissed.

REASONS FOR JUDGMENT - DAVIES JA

Judgment delivered 9 April 1999

1. I agree with the orders proposed by McPherson JA for the reasons which he has given.

REASONS FOR JUDGMENT - WHITE J

Judgment delivered 9 April, 1999

1. I agree with the orders proposed by McPherson JA for the reasons which he has given.