R v Forsythe[2013] QCA 314

SUPREME COURT OF QUEENSLAND

[1] HOLMES JA:  The appellant was convicted of the murder of Brent Dumper and the attempted murder of Michael McMillan.  He appeals on the grounds that the verdicts were unreasonable and that there was a miscarriage of justice because the trial judge did not direct the jury in respect of the excuse of accident under s 23(1)(b) of the Criminal Code.

The Crown case

[2] On Saturday 29 May 2010, a number of people attended a house-warming party at a house at Upper Coomera occupied by Jesse Anderson and her fiancé, Garry Neill.  Ms Anderson’s parents, Brent and Karyn Dumper, were among the guests, as were family friends Michael McMillan and Mike and Cathi Tamati.  The appellant, who was Mr Neill’s second cousin, lived next door and was also invited.  Most of the guests were outside, in a patio area behind the house, or in the back yard.

[3] Witnesses in the Crown case described the appellant as becoming agitated and aggressive over the course of the evening.  He was urging Mr Dumper to put on boxing gloves and spar with him, but Mr Dumper maintained that he did not want to fight.  At one stage, Mr Dumper put the appellant in a bear hug in an attempt to settle him down.  At Ms Dumper’s urging, Mr Neill drew the appellant aside in an effort to calm him.  The appellant asserted that the others at the party were “disrespecting” him.  After their conversation, the appellant left the party, but returned shortly after with a double‑barrelled shotgun.  Descriptions of what happened then varied.

[4] Mr McMillan said that he saw the appellant walking very quickly through the house before he emerged outside.  He was holding the shotgun at about waist height, facing upwards.  He shoved the gun in Mr Dumper’s back.  Mr McMillan said he recalled Ms Anderson yelling “You don’t have to do this, Bevan”.  The gun discharged and Mr Dumper fell to the ground.  Mr McMillan said that the appellant then turned the gun on him, shoving it in his stomach, but he managed to push it to the side.  It discharged its pellets into his side and through his clothes; he was left with superficial wounds in his stomach and holes in his clothing.  The appellant then ran back through the house and out of the property.

[5] A paramedic living nearby, Mr Banks, heard the shot and went to the house, where he tried to revive Mr Dumper.  Mr Banks was cross-examined about a statement Mr McMillan made to him, that the bullet had grazed him on the way through to the deceased.  At trial, Mr Banks could not recall that being said, but he accepted that he had confirmed at the committal that Mr McMillan made that statement.  Mr McMillan said that he did not recall saying those words.  He accepted, however, that he had told police that there were two shots fired into Mr Dumper, the second as he lay on the ground, and that a further two shots were discharged when he, Mr McMillan, struggled over the gun with the appellant, one grazing his side and the other going into the wall of the house behind him.

[6] It was put to Mr McMillan, and denied, that he had been heard to say after the event “The gun was in my side.  I shoved it away and it shot my mate”.  However, a neighbour said that she had heard him make that assertion to a police officer after the appellant was apprehended and placed in a police car.  According to Mr McMillan, the appellant while seated in the police car spoke to him, saying, “I’m fucking spewing I shot your mate, but I’m fucking spewing I missed you, you cunt”.

[7] Mrs Dumper, the deceased man’s widow, recalled the appellant making a pest of himself and being taken aside by Mr Neill, after which she understood him to have gone home.  When he returned, she was sitting outside on the patio.  She saw him come straight through the house, place the gun in her husband’s back and fire it.  Her husband, who was sitting on a stool, fell.  In shock, she moved back inside the house.  The appellant walked past her and her daughter as he made his way back through the house, pointing the gun at their faces as he did so.  In cross‑examination, Mrs Dumper rejected the proposition that the gun had discharged wounding her husband in the course of a struggle between him, the appellant and Mr McMillan for its possession.

[8] Jesse Anderson, the deceased’s daughter, described the appellant’s conduct leading up to his departure from the party in terms similar to other Crown witnesses.  When the appellant returned to the party, she was outside in the patio area.  She saw him with the gun held at chest height.  He went to her father, pointing the gun towards him.  Her father was standing or sitting on a stool with his back facing the door to the patio area.  She did not see the gun fired, but ran inside when she heard the first shot.  While inside, she heard the gun go off again.  Her mother came inside and the appellant walked past them holding the gun, which he pointed at them.  He left the house through the front door.

[9] In cross-examination, Ms Anderson agreed that in her first statement to the police she had said she was inside the house with her mother in the lounge room when the appellant entered holding the gun and when her father was shot.  She said that she was confused when she gave the statement; in fact, she had run inside after the first shot.  In the statement, she had said that she went outside after the shot and that her father was still standing, being held by her fiancé, before he fell to the ground.  Her evidence was that that was wrong; she remembered her father being on the ground.  Ms Anderson dismissed the suggestion that her father was shot after he and Mr McMillan had grabbed the gun and struggled over it with the appellant.

[10] Ms Anderson’s fiancé, Garry Neill, said that the appellant left the property after a conversation in which the latter claimed to have been “disrespected”.  He, Mr Neill, went to change the music on the stereo inside the house.  The appellant ran past him, behind him.  He looked up to see him holding a gun to Mr Dumper who, he thought, was sitting on a stool.  He ran to Mr Dumper, who was then lying on the ground.  The appellant ran towards the house and towards Mr McMillan.  Mr McMillan was not, Mr Neill said, anywhere near Mr Dumper when he was shot; he was back towards the house.

[11] In cross-examination, it was put to Mr Neill that his account had previously been that he was at the stereo when his attention was drawn by the bang of the gunshot, at which point he ran straight to Mr Dumper.  His statement did not mention seeing the appellant holding a gun in Mr Dumper’s proximity; instead, he said that when he first saw the appellant he was walking back towards the house.  That was, Mr Neill conceded, different from his present recollection of seeing the appellant with a gun pointed into Mr Dumper’s body, but he did not accept that there was any element of reconstruction in He his account.

[12] Mr and Mrs Tamati had gone to bed before the shooting occurred.  They heard two noises which they both took to be glass tables breaking; Mr Tamati estimated that they were less than 30 seconds apart, while Mrs Tamati said there was a couple of seconds between them.

[13] Admissions were made in the trial, including as to the effect of evidence which the appellant’s partner gave at the committal hearing.  She said that she woke at about 4.20 am.  The appellant entered through the front door and remained for a few minutes before leaving with a shotgun.  About one minute later, she heard two gun shots, after which the appellant returned home.

[14] At 4.38 am, the appellant made a “000” call from his mobile phone, advising that he had shot his neighbour.  A friend of the appellant’s received a call from him at about 4.44 am and as a result, drove to the appellant’s home and collected his partner and children.

[15] The forensic pathologist who conducted an autopsy on Mr Dumper said that he had a gunshot wound to the back of his chest, which was a contact wound.  The marks left indicated that the gun was firmly held against Mr Dumper’s body.  The spreading of the pellets from the shotgun cartridge made it difficult to establish what their trajectory was, other than that it was from the back to the front of the body, slightly towards the right from the entry wound.

[16] A ballistics expert examined the appellant’s weapon.  It was an “under/over” shotgun, with one barrel above the other.  Both barrels and the butt stock had been shortened.  Each barrel contained a spent shot shell.  The firearm had a sliding safety mechanism which engaged once the gun was loaded and closed.  To fire it, it was necessary to push the safety switch in the direction of the barrel.  The upper barrel of the gun was fired by its rear trigger and the bottom barrel by the front trigger.  The wound on Mr Dumper’s body appeared to have been caused by the firing of the bottom barrel.

[17] The ballistics expert had performed various tests on the weapon which showed that it had no tendency to fire without operation of one or other of the triggers.  The safety mechanism was functioning properly.  He had examined Mr Dumper’s body and concurred with the pathologist’s view that the muzzle of the firearm had been against Mr Dumper’s body.  In addition to the actual wound, there was an abrasion immediately above it caused by the upper barrel of the gun and a mark left by the sighting device on the weapon.  (A photograph put into evidence clearly shows those impressions left by the weapon on Mr Dumper’s back.)

[18] The ballistics expert found pellet marks on the external wall of the house and on an air‑conditioning unit on that wall.  He examined Mr McMillan’s jacket, which had a perforation of about three centimetres by six centimetres surrounded by firearm discharge residue.  Bits of material which appeared to come from the jacket were located near the air‑conditioning unit.  Mr McMillan had been wearing two T-shirts, each of which had a perforation about seven centimetres by three centimetres, again with firearm discharge residue around the cut.  After performing some tests, the expert concluded that the clothing was somewhere between actual contact with the gun and a distance of 120 centimetres from it.

The defence case

[19] The appellant gave evidence.  He said that he had suggested going to the beach and having a spar with Mr Dumper on the following day.  Mr Dumper had grabbed him by the shoulder and punched him in the side.  He was upset and decided to go home.  While he was leaving, he saw Mr Neill and had a conversation with him.  Mr Neill told him that he had been disrespected and that he, Mr Neill, was behind him 100 per cent, whatever he chose to do.  The appellant said that he would be back soon.  He returned to his house with an idea of bringing his dog over.  Instead, he decided to return with his firearm to threaten his neighbours.  He walked back to their house and onto the patio.  As he walked through the outer door, he lifted the gun and said to Mr Dumper “How tough are you now, cunt?”  He had intended to threaten him and perhaps make him kneel; he had no intention to shoot him.

[20] The appellant had pointed his gun at Mr Dumper and walked towards him holding the gun with his right hand on the butt end, his index finger on the front trigger and his left hand on the muzzle end.  As he had raised the gun, and when he was about an arm’s length away, the appellant said, Mr Dumper put a hand out and grabbed it, dislodging the appellant’s left hand.  Mr McMillan had come in from the right side and joined in, taking hold of the gun between the appellant’s hands and pulling it.  As Mr McMillan tried to take the gun, he altered its angle.  The appellant was not looking at Mr Dumper, but he was aware that he was still beside him and Mr McMillan.  The gun had discharged.  Mr McMillan let go of it and said, “Fuck off”, but then grabbed it and pulled again.  The appellant said that he had moved a couple of steps and the gun had discharged again.  He left the property, walking along the side of the house and out the gate.

[21] Asked what had caused the gun to discharge, the appellant said it was the result of tightening his grip with one hand, because he had lost hold of the gun with his other hand.  He said that he would have had his finger on the gun’s trigger because that was a natural way to hold the gun.  His finger would have been on the front trigger at the time the gun first discharged through the bottom barrel, and on the back trigger when it discharged the second time.  He did not know if his finger had slipped off one trigger onto the other.

[22] Under cross-examination, the appellant confirmed that he and Mr Dumper had been side by side at the time Mr McMillan pulled on the gun, when his hand was dislodged.  When Mr Dumper grabbed the gun he, the appellant, was holding it horizontally, pointing it at Mr Dumper at about stomach level.  Asked how the barrel of the gun came into contact with Mr Dumper’s upper back, he said that it was the result of the struggle.  Mr Dumper must have turned, resulting in the shot’s entering his back.  He was not actually aware Mr Dumper had been shot; he did not notice him fall to the ground.  Mr McMillan had let go of the gun after it first discharged and then grabbed it again and tried to twist it away from the appellant.  It had gone up and over to the appellant’s right-hand side and discharged again.  He did not know where that shell went.  When he later informed the emergency operator that he had shot his neighbour, that was an assumption because he heard crying and screaming from next door.

[23] The appellant conceded he knew that the gun was loaded when he returned with it; he was not sure whether the safety mechanism was engaged.  He had not been aware that it came on automatically and it was possible that he had deactivated it, thinking that he was turning it on.  It was also possible that the safety switch had been “grabbed in the struggle”.  He said he had not considered that, holding his finger on the trigger, the gun might go off; and during the struggle he was thinking only of keeping hold of the gun.

The summing-up on accident

[24] Section 23(1) of the Criminal Code provides:

“Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for—

(a)an act or omission that occurs independently of the exercise of the person’s will; or

(b)an event that occurs by accident.”

[25] The trial judge discussed possible directions with counsel, asking whether it was contended that there was an issue for the jury as to whether an ordinary person in the appellant’s position would not have foreseen the shootings as a possible outcome of his actions.  Defence counsel answered in the negative the judge’s direct question as to whether he sought a direction under s 23(1)(b).  He proposed instead that the jury be directed on the excuse of accident under s 23(1)(a) of the Criminal Code on the basis that the relevant act was the discharge of the shotgun, which could be regarded as an unwilled act or reflex action occurring in the course of a struggle.

[26] The trial judge read s 23(1)(a) to the jury.  He went on to explain that the act relevant to the killing of Mr Dumper was the physical act of discharging the gun and in respect of the alternative counts of attempted murder and malicious act with intent relating to Mr McMillan, was the second act of discharging the gun.  He instructed the jury that the prosecution had to exclude beyond a reasonable doubt the possibility that each of those acts occurred independently of the will of the appellant and that in order to prove that the act was willed it was necessary for the Crown to prove a conscious choice to do a physical act of that kind.  The question then was whether the prosecution had proved beyond  reasonable doubt that the act of discharging the shotgun was an act willed by the appellant; or putting it another way, whether the prosecution had excluded beyond reasonable doubt the possibility that the discharge was the result of an unwilled act of the appellant.

[27] The learned judge summarised the Crown and defence cases.  In respect of the latter, he reminded the jury of the argument by the appellant’s counsel that they could not exclude the possibility that the gun discharged on each occasion as a result of an involuntary reflex or the struggle between the men.

The unreasonable verdict ground

[28] The appellant argued that it was not open to the jury to be satisfied beyond reasonable doubt of the appellant’s intention to kill or do grievous bodily harm to Mr Dumper or of his intention to kill Mr McMillan, because most of the witnesses had made statements contradicting important aspects of their evidence.  That was particularly true of Mr McMillan, whose evidence had varied between his initial statements and his testimony in court.  Ms Phillips’ evidence, that Mr McMillan had said that he had shoved the gun away and it had shot his mate, was a further reason to doubt his credibility.  Ms Anderson’s accounts had been inconsistent as to whether she was inside or outside when her father was shot, and Mr Neill’s claim that he had seen the firearm in the deceased’s back was inconsistent with his initial version.  It was conceded that Mrs Dumper had not made any inconsistent statement, but she had said that Mr Neill was outside the house when the appellant emerged from it with the firearm, and that was contradicted by Neill’s own evidence.

[29] The appellant contended that taking a loaded firearm into a party was more consistent with an intention to intimidate than to kill or do grievous bodily harm, particularly when it was obvious that there would be witnesses to any incident.  His action of summoning an ambulance was consistent with an unintentional discharge of the firearm.  He had not fled from his house, secreted the weapon or got his girlfriend to take it away with her.  The prosecution had established no motive for his wanting to kill or do grievous bodily harm.

[30] None of the matters raised, as it seems to me, provides any basis for regarding the jury’s verdict as unreasonable.  The jury could fairly have regarded as beyond credence the appellant’s version that his intent in going to the house with a loaded gun was merely to threaten, that the safety device was somehow disengaged and that there was a struggle such that his finger inadvertently tightened on first the front and then the back trigger in turn so as to cause each barrel to discharge.  They might have had reservations about the accuracy of the recollections of Mr Neill, Ms Anderson and Mr McMillan, but they were entitled to rely on Mrs Dumper’s evidence of what she saw, which was not contradicted in any fashion: that there was no struggle for the gun; her husband was simply and deliberately shot in the back.  That account was supported by the objective evidence of the marks on the deceased man’s back.  Those marks indicated that the gun was held upright and directly against his back, with upper and lower barrels in a neat vertical line.

[31] If the shooting of Mr Dumper were deliberate, it was reasonable to suppose that the shooting of Mr McMillan was similarly intentional.  That inference would be reinforced if the jury accepted Mr McMillan’s evidence that the appellant expressed annoyance at having missed him.

[32] It was open, on the whole of the evidence, for the jury to be satisfied beyond a reasonable doubt that the appellant had committed murder and attempted murder.[1]  The verdicts were not unreasonable.

The failure to direct on accident under s 23(1)(b)

[33] The appellant argued that both limbs of s 23(1) had to be left to the jury because it was his evidence that the firearm discharged during the struggle and on neither occasion of its discharge did he foresee the shooting of anyone.  The trial judge had erred in raising the possibility of a direction under s 23(1)(b) and then rejecting it on counsel’s intimation that he did not seek it.  As long as there was any evidence of accident, the trial judge was obliged to leave the excuse under s 23(1)(b) for the jury to consider.  Reference was made to Stevens v The Queen[2] and R v Kidd.[3]

[34] Stevens, however, involved a willed act by the accused who, on his account, had attempted to grab the gun held by the deceased.  There was evidence in that case that the rifle was capable of discharging when struck with a hand.  The scenario then was one of the defendant’s willed act in striking the gun which caused it to discharge firing the fatal shot.  Section 23(1)(b) was thus applicable; there was no suggestion in that case that any unwilled act which would attract the application of s 23(1)(a) was involved.  The case is not an authority for the proposition that when the evidence raises the possibility of an unwilled act as the cause of the event in question, as was the case here, s 23(1)(b) must also come into play.

[35] In Kidd, the appellant’s account was that he endeavoured to take a knife from the deceased’s hand.  In a struggle, they fell backwards and the knife entered the deceased’s body.  There was some doubt, even on the appellant’s own evidence, as to whether the knife was actually in his hand at the time it entered the deceased’s body.  A direction had been given under s 23(1)(b) identifying the issue as whether it was intended foreseen or reasonably foreseeable that the deceased’s death might occur as a result of the appellant’s act.  This court held that because the possibility existed that the knife had entered the deceased’s body independently of the exercise of the appellant’s will, a direction should also have been given under s 23(1)(a).

[36] But in the present case, there was nothing in the evidence, whether in the statement attributed to Mr McMillan or the appellant’s evidence, which raised accident in any context other than that of unwilled act under s 23(1)(a).  The relevant act in each case was the appellant’s discharge of the gun.  If that were a willed act, there was no room for the possibility that the appellant had performed it without foreseeing the result: in other words, that he had discharged a loaded shotgun with other persons in his immediate vicinity without foreseeing grievous bodily harm or death; let alone that an ordinary person in his position would not reasonably have foreseen those eventualities.

[37] The evidence raised a possible excuse under s 23(1)(a); it did not raise a scenario which could require direction under s 23(1)(b).  Assuming that the learned judge did make a positive decision not to direct on s 23(1)(b), he did not err.  If I am wrong in that conclusion, this is a case in which I would apply the proviso under s 668E(1A) of the Criminal Code: there was no substantial miscarriage of justice.  I am satisfied beyond reasonable doubt on the evidence, particularly the uncontradicted evidence as to the appellant’s return to the house with a loaded shotgun and the way in Mr Dumper sustained his wound, that he was guilty of murder and attempted murder.

[38] I would dismiss the appeal against conviction.

[39] MORRISON JA:  I have had the benefit of reading the reasons of Holmes JA.  I agree with those reasons and with the order proposed.

[40] NORTH J:  I have considered the submissions by counsel for the appellant and reviewed the evidence.  For the reasons given by Holmes JA, with which I agree, I agree with the orders proposed.