The Queen v Skerritt[2001] QCA 31

SUPREME COURT OF QUEENSLAND

1. McPHERSON JA:  The facts are set out in the reasons of Williams JA, with which I agree. The appellant was charged with murder but found not guilty at his trial in the Supreme Court. On that charge no issue could have arisen under s 23(1)(b) of the Code, because it is an essential element of murder under s 302(1)(a) that the accused intended to kill or do grievous bodily harm. Such an intention, if proved, is inconsistent with death having been caused accidentally. As Latham CJ said in R v Mullen (1938) 59 CLR 124, 128, 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".

2. The  jury evidently entertained a doubt about the intention of the appellant because they acquitted him of murder but convicted him of manslaughter. It is implicit in that verdict that he was found to have caused the death of the victim. Manslaughter is an offence of which intention is not an element. It is therefore one for which s 23(1)(b) may in some circumstances provide an excuse or exculpation from criminal responsibility.  It does so if the relevant "event" is one that occurs by "accident".  In the context of s 23(1)(b) the "event" is the outcome or consequence of some physical act or action, not the physical act that produces that outcome.  See R v Taiters, ex parte Attorney-General [1997] 1 Qd R 333, 335. In the case of manslaughter, the event is the death of the victim and not the act that brings it  about.

3. At the trial of this appellant a question capable of amounting to "accident" in terms of s 23(1)(b) was raised and relied on by the accused. The prosecution evidence at trial included his record of interview with police, in which he had said that he had kicked a punchbag with which he and the deceased were sparring. He claimed it had struck the deceased and knocked him over the verandah railing and down some stairs, resulting in his injury and death.  This was capable of being considered an event that occurred by accident.  The learned trial judge did not, in terms, direct the jury to consider it as an "accident".  Instead, he directed them that, if they felt unable to reject the possibility that that was what had happened, the appellant was entitled to acquittal.

4. His Honour's direction in that form was satisfactory in every way. There was no need to deliver a dissertation on s 23(1)(b), or even to use the words "event' or "accident" in the course of the summing up.  It was enough to say, as in substance his Honour did, that if the appellant's statement to police raised a reasonable doubt in the minds of the jury that death may have occurred in that way, he must be found not guilty. That was to state for the jury the legal effect that such a doubt would  produce on or for their verdict.  It is the appropriate way of summing up without necessarily involving the jury in what may often be difficult concepts of law: cf. Alford v Magee (1952) 85 CLR 437, 466.

5. It is now said that the learned trial judge should have directed the jury to consider s 23(1)(b) from another angle. It is that the death was not the or a  reasonably foreseeable consequence of what was done by the appellant. The forensic evidence was that the primary cause of death was most likely to have been the application of a high degree of force to the abdomen of the victim, which caused damage to the mesentery. Under cross-examination at the trial, Dr Charles Naylor maintained his opinion despite the absence, on post mortem examination, of bruising to the abdomen.  "We know from experience in similar cases", he said, "that there may be not a thing to see on the skin despite the internal injuries being severe".

6. Judging by a question that was asked by the foreman of the jury, at least one member of the jury found this conclusion puzzling. It is suggested on appeal that the jury should have been directed to consider whether or not the death was an "accidental event" that occurred as a result of the act of the appellant in applying a high degree of force to the victim's abdomen. Expressing it in terms that are sanctioned by the decision in R v Taiters [1997] 1 Qd R 333, 338, the trial judge ought, it is said, to have told the jury to consider whether or not they were satisfied that an ordinary person in the position of the accused could reasonably have foreseen the victim's death as a possible outcome of the application of such a degree of force to  his abdomen.

7. This is, in my opinion, to misconceive the operation and effect of s 23(1)(b) and the relevance of the accidental event to which it refers.  It is not an element of the offence of manslaughter, on which a judge is bound to direct as part of the summing up.  The onus of excluding it, if raised at the trial, rests on the Crown and it must be discharged to the satisfaction of the jury, which of course means to their satisfaction beyond reasonable doubt.  But that is so only if it is raised on the evidence, which as is shown by the authorities referred to by Williams  JA in his reasons, means "fairly raised" by the evidence; and usually also, if the accused is legally represented, only if it is relied on by counsel in the course of the trial.

8. Here no reliance was placed at the trial on s 23(1)(b) in the way that is now suggested. Nor is there reason to suppose that any issue about it was raised on or by the evidence adduced at the trial. Dr Naylor's evidence was that injuries like those observed post mortem were typically the result of a motor vehicle accident; or of jumping on a person who was lying on the ground on his back; or of severe kicks, particularly if the victim was immobilised against a wall or some other object, "so that you end up with a crushing force whereby the blow from the front, however it's caused, traps the mesentery between the object causing the impact and the spine at the back". It would be absurd to suggest that an ordinary person who engaged in acts of violence involving that degree of force towards a fellow human being would not reasonably have foreseen death as a possible outcome of those acts; which is no doubt why counsel in conducting the defence at the trial chose not to rely on the point.

9. In my opinion, this was not a case in which "accident" under s 23(1)(b) was fairly raised on the evidence or otherwise, and there was no occasion for the learned judge to direct the jury on it.  I agree that the appeal should be dismissed.

10. WILLIAMS JA:  This is an appeal by Jason John Skerritt against his conviction for manslaughter.  He was indicted with the murder of John Walton on 12 September 1999.  He was found not guilty of that charge but the jury returned a verdict of guilty of manslaughter.  The sentence imposed was eight years imprisonment. 

11. The Notice of Appeal as filed sought to have the verdict set aside on the following grounds:

“(i) Unreasonable;

(ii) Against the weight of the evidence; and

3. (iii)
    Unsafe and unsatisfactory in that Dr Charles Naylor gave evidence that the deceased could have received his injuries and died as a result of being struck by the punching bag and subsequently falling over a gate and down the stairs. In those circumstances a properly instructed jury could not have been satisfied beyond a reasonable doubt that the death of the deceased was not an accident.”

12. At the outset of the hearing of the appeal counsel formally abandoned each of those grounds and sought leave to substitute the following:

“The learned sentencing judge erred in failing to give directions concerning “accident” in the event that the jury were satisfied that the appellant attacked the deceased and caused the fatal injuries in circumstances not amounting to murder.”

13. The court granted leave to amend the Notice of Appeal in accordance with that application. Further, it should be noted that the Notice of Appeal as filed also sought leave to appeal against sentence on the ground that it was manifestly excessive, but that was also abandoned. The court formally dismissed the Application for Leave to Appeal Against Sentence.

14. On the evening in question the appellant and deceased were alone at a rural house property situated at 357 Kin Kin Road, Pomona. When ambulance and police officers arrived at the scene they found the deceased lying on the ground, in front of a verandah of the house, suffering from numerous serious injuries. The best description of those injuries is to be found in the evidence of Dr Naylor who performed the post-mortem. The following extracts from his evidence-in-chief indicate the extent of relevant injuries:

“There was swelling of both lower eyelids with marked bruising on the left.  There was a gaping laceration four centimetres from end to end under the chin on the right.  There were areas of bruising and laceration inside the upper and lower lips.  There was an abrasion or graze about 10 millimetres across over the right cheek towards the ear.  There was a graze or cut running downwards from the left nostril towards the left corner of the mouth and there was purple bruising about six millimetres across on the left side of the nose...There was a fracture of the lower jaw on the right more or less in the vicinity of the gaping laceration... and there was severe fractures in the area of the left cheek which extended up into the left eye socket and onto the left side of the nose associated with moderate bruising into the tissues and some bleeding into the airways... I believe all of those injuries were the result of a blunt impact, be they from a blunt object or from the deceased’s face coming into to contact with some kind of object or surface.

...The number of blunt impacts that would be needed to cause the injuries that I found is impossible to determine exactly....  However, my impression was that there were probably at least four impacts to the face and one to the right eye region... the amount of force that I estimate may have been involved would be mild to moderate....  Secondly, an impact to the right lower jaw region causing the laceration and the break in the jaw and I estimated severe force to be involved.  Thirdly, to the left cheek region involving severe force causing injuries seen around the left eye to the left side of the nose and particularly to the fractures involving the bones of the left cheek.... Finally, I believe there may have been an impact to the mouth region involving mild to moderate force. . . . There were no injuries that I saw in the skin of the abdomen but internally there were severe injuries to what is called the mesentery.... in this case there were multiple tears and bruises to part of the mesentery and because of the disruption to the blood vessels which run in the mesentery this had resulted in severe bleeding and in fact there was approximately two and half litres of partially clotted blood within the abdominal cavity.... Now, these injuries to the mesentery were severe and based on this and on experience in similar cases, I estimate that the amount of force needed to cause these injuries was in the highest category.  In other words, severe or considerable.  Again based on other cases the type of impact which typically causes these kind of injuries would consist of a motor vehicle accident, jumping on a person who was lying on the ground on their back or severe kicks, particularly where the person is immobilised against a wall or some other object so that you end up with a kind of crushing force whereby the blow from the front however it’s caused traps the mesentery between the object causing the impact and the spine at the back.... we know from experience in similar cases that there may be not a thing to see on the skin despite the internal injuries being severe.”

15. In the doctor’s opinion the cause of death was the abdominal injuries, particularly in view of the severe blood loss, but he considered that the facial injuries may well have contributed to some degree.

16. The appellant did not give evidence at the trial, but he had participated in a recorded interview with investigating police officers. There he presented his account of what occurred leading up to the deceased’s death. In summary, both he and the deceased had each consumed a reasonably large quantity of alcohol before they commenced exercising or sparring on the verandah of the house using a punching bag. In the course of those activities the appellant kicked the punching bag, causing it to strike the deceased and in turn causing him to stagger backwards and fall over the verandah railing and down some stairs.

17. That was the defence case presented at trial and ultimately the learned trial judge instructed the jury that if they were not able to reject that scenario beyond reasonable doubt then the prosecution had not proved its case to the requisite standard and the appellant was entitled to an acquittal.

18. In that context, experienced counsel who appeared for the appellant at trial concentrated his lengthy cross-examination of Dr Naylor on establishing that each of the injuries noted by the doctor on post-mortem could have been occasioned in an incident such as that described by the appellant in his interview with the police. Dr Naylor was taken to each injury separately and questioned as to whether or not it could have been caused by contact with the punching bag, the verandah, the stairs, or the final impact with the ground. Whilst Dr Naylor agreed that it was possible that each of the injuries to the face and the head could have been occasioned in an incident such as that described by the appellant, he expressed the view that a fall down the stairs could not account for them all. For example, he said: “There are a number of different areas of injuries which imply to me a number of different impacts to different parts of the face. I don’t think the number and severity of some of the injuries could really be explained by a fall down three wooden steps.” He was cross-examined at some lengths about the possibility of a blow from the punching bag causing the injuries to the mesentery. Ultimately his evidence can be summarised by saying that such was “a possibility but I consider it most unlikely”. The doctor’s evidence at the end of the day clearly favoured stomping or kicking as the most likely cause of that injury.

19. The case for the prosecution was essentially a circumstantial one. It was summarised in the summing up as follows:

“So let me summarise those circumstances.  There are three of them.  The accused and the deceased were alone in the house at the relevant time, there was an altercation or disagreement involving violence between the two men, the evidence of Francis [sound of loud, excited male voices coming from the deceased’s house...sounded like something heavy falling on the verandah], the injuries to the accused hands and feet [split on back of thumb of right hand, redness and puffiness of right hand, bleeding feet], the accused’s blood found where it was [near the collar bone area of the deceased’s shirt and a spot on the verandah], the number and type of injuries are relied upon as proving the second circumstance and the third circumstance is the physical features of the verandah, the stairs and the punching bag.”

20. So at the end of the trial the jury was being asked by the prosecution to reject the appellant’s account of what happened because it was inconsistent with the evidence, particularly that of Dr Naylor, and then to infer (based on Dr Naylor’s evidence) that the appellant, the only other person present, assaulted the deceased by, inter -alia, kicking or stomping on his abdomen.

21. It was clearly open to the jury to reason in accordance with the prosecution's submissions and to conclude that the appellant assaulted the deceased causing his death.

22. At the post-mortem it was established that the deceased had a blood alcohol level of .26. That in Dr Naylor’s words was a state of “severe intoxication”. About 5.30am on the morning after the incident the appellant had a blood alcohol reading of .1. Based on that Dr Naylor expressed the view that between 10 and 11pm the previous night his reading could have been as high as .24. In other words there was evidence that the appellant was probably severely intoxicated at the time the relevant events occurred.

23. That, as the learned trial judge pointed out in his summing up, was critical on the issue of intention. The jury was invited to conclude that because of the appellant’s state of intoxication he could not have formed the intent to kill or cause grievous bodily harm necessary for a conviction of murder, and that in consequence manslaughter would be the appropriate verdict. That appears to be the basis for the jury’s verdict of manslaughter.

24. Although the learned trial judge in the course of his summing up did not use the term “accident”, the only basis for putting to the jury that if they could not reject the appellant’s version of events beyond reasonable doubt they should acquit is that in law, if that be what happened, the death would have been an event which occurred by accident. No other basis for dealing with “accident” as it is used in section 23 of the Criminal Code was raised during the trial.

25. However the direction about “accident” at the heart of the amended ground of appeal does not relate to the death being an accident in the sense implicit in the summing up. Rather, the point which the appellant now wishes to raise is that the trial miscarried because the learned trial judge did not instruct the jury that, if they found that the appellant delivered the blow or blows which resulted in death, they had to be satisfied before they could convict of manslaughter that an ordinary person would have foreseen death as a likely consequence (R v Van Den Bemd [1995] 1 Qd. R. 401 at 405).  Though such a point was not raised by defence counsel at the trial it is said that there was an obligation on the learned trial judge to deal with the matter in the course of his summing up.  There are numerous decisions of appellate courts supporting the proposition that the fact that a possible defence is not argued at trial is not conclusive.  The proper test has also been discussed in a number of authorities.  The Court of Criminal Appeal, in dealing with a question whether or not section 23 of the Code should have been dealt with in the summing up in the particular circumstances of the case, said in R v Payne [1970] Qd. R. 260 at 264:

“It is of course true that a judge is bound to direct the jury as to a defence which is supported by the evidence but is not advanced by the accused;...But this does not mean that a judge must search his mind for fanciful interpretations of the evidence in order to put them to the jury as possible defences, particularly if he is not asked to do so by counsel for the accused.”

26. The High Court in Howe v R (1981) 55 ALJR 5 at 7 said:

“The essential question here is whether the trial judge should have perceived that an issue based on section 247 [provocation] was fairly raised on the evidence.”

27. In Grimley [2000] QCA 64; CA 362 of 1999, 14 March 2000, Pincus and Davies JJA, after referring to Payne and Howe, said one way of testing whether a defence is fairly raised on the evidence is by attempting to construct a sensible direction on the basis of the evidence given.  That, to my mind, is a relevant test to apply here.  How could a trial judge formulate a meaningful direction as to whether or not the appellant should have foreseen death as a likely consequence of a blow which he did not admit delivering and which could not be accurately described.  For example, in this case, was the blow to be considered a punch, a kick or a stomping.  McPherson JA in Grimley put it this way:

“Here there are, to my mind, two reasons why no such question or issue arose at the trial of the appellant.  One was that the proposition put forward by the defence was that the appellant had not in fact delivered any punch to or at the appellant or his jaw.  If that was so, it followed that there was no “act” of the appellant capable of attracting the operation of section 23(1)(a).  The appellant would have been entitled to an acquittal not because the punch was not the result of his conscious choice or voluntary action, but because there was no punch or “act” on his part at all.”

28. Here the learned trial judge told the jury that if there was no punch or kick the accused was entitled to an acquittal because, in effect, the death was an event which occurred by accident (section 23(1)(b)). But as there was here no identifiable blow directed by the appellant at the deceased there was no basis for asking the jury to consider whether an ordinary person would have foreseen death as a likely consequence of that blow.

29. That was also the approach of this court in Bojovic [2000] 2 Qd. R. 183.  The appellant in that case killed another man by punching him in the face a number of times after the other man, who was quite drunk, had acted provocatively and had thrown a punch at the appellant.  The precise number of blows was not clearly established, but the preponderance of the evidence suggested that about five heavy blows were inflicted.  One of the points taken on appeal was that the jury were not instructed to consider the second limb of section 23 of the Code.  The court disposed of that submission by saying at 187:

“When it is properly raised in a trial the onus is on the prosecution to exclude its operation and to do so beyond reasonable doubt.  But it is necessary to do so only when it is properly raised as an issue at the trial.  There needs to be some evidence from which a jury might reasonably conclude that it is reasonably possible that the result could not have been foreseen by an ordinary person in the position of the accused.”

30. Implicit in that is the proposition that the jury would have to focus attention on some identifiable blow or blows before the test could be reasonably considered.

31. Finally, reference should be made to R v Taiters ex parte Attorney General [1997] 1 Qd. R. 333.  Relevantly this court said at 338:

“On the other hand, something which a reasonable man might think of as no more than a remote possibility which does not call to be taken into account and guarded against can, when it happens, be fairly described as accidental.  The references which have been made in the cases to “reasonably” and “ordinary person” in the context under discussion, give an emphasis to the fact that the relevant test calls for a practical approach and is not concerned with theoretical remote possibilities.  It directs inquiry to what would be present in the mind of an ordinary person acting in the circumstances with the usual limited time of assessing probabilities.”

32. Again that, to my mind, indicates that the evidence in this case did not fairly raise an issue as to whether the appellant foresaw death as a likely consequence of some blow he delivered to the deceased.

33. On the hearing of the appeal counsel for the appellant sought to make some mileage out of some concerns about the evidence expressed by at least one juror. Dr Naylor’s evidence was spread out over two days.  On the afternoon of the first he gave evidence that one may not see anything on the skin despite the internal (abdominal) injuries being severe.  On the morning of the next day the learned trial judge was handed a question from the jury to this effect:

“Occupants of a vehicle involved in an accident are often bruised and/or marked on their bodies to a greater or lesser degree by seatbelts.  Why wouldn’t similar bruising or markings have appeared on the skin of the deceased in the area of the umbilicus?”

34. Dr Naylor responded by saying that there was no “easy answer”. In the course of an expanded answer he again reiterated that in medical experience there is often no bruising to the skin of the abdomen where there are major internal injuries. After the jury had been deliberating for some hours the learned trial judge was handed a note in these terms:

“A juror is not satisfied with the explanation of Dr Naylor as to no bruising in the deceased’s abdomen.  Could we have another explanation, e.g. ambulance officer?”

35. The learned trial judge then instructed the jury that the evidence had concluded, and that the only evidence was that there was no mark on the skin of the abdomen but significant internal injuries were present. He concluded by saying:

“So you might think that the absence of bruising, whatever the explanation, is not really relevant to the case.”

36. Based on that, counsel for the appellant submitted that if the jury were concerned about the issue of causation, they may also have been concerned about the issue of foreseeability. To my mind all of that is speculation. One does not know what was exercising in the mind of (probably only one) of the jurors. There was no challenge to the fact that the deceased had severe internal abdominal injuries and that was all that was relevant.

37. There was some discussion during argument about the recent amendment to section 23 inserting paragraph (1A). Here the evidence did not suggest any inherent or unusual physical weakness in the deceased and in consequence a further consideration of that paragraph is unnecessary.

38. The appeal should be dismissed.

39. MULLINS J:  I agree with the reasons of both McPherson and Williams JJA and that the appeal should be dismissed.