R v Gaskell[2016] QCA 302

SUPREME COURT OF QUEENSLAND

1. FRASER JA:  I agree with the reasons for judgment of Philip McMurdo JA and the order proposed by his Honour.
2. PHILIP McMURDO JA:  After a seven day trial the appellant was convicted of the murder of his former wife on 17 October 2011 in the house where they had lived.  He admitted killing her.  The questions for the jury were whether the prosecution had proved that he held the requisite intention to kill or do grievous bodily harm, that he had not acted in self defence^[1] and that he had not acted in self preservation in an abusive domestic relationship.^[2]
3. His notice of appeal specified but one ground, namely that “the verdict was unsafe and unsatisfactory”.  However in neither the written nor the oral submissions by the appellant’s counsel was there any argument which advanced or even explained that ground.  The appellant’s counsel said that his instructions did not allow him to formally abandon the ground but that he would make no submissions in support of it.  Instead his argument was that the trial judge did not give adequate directions about the prosecutor’s argument that the appellant had a certain motive to kill his former wife.
4. The appellant and the deceased had separated in 2008 and divorced in 2010.  They were the joint owners of three houses, including that in which the deceased was killed.  For some time they had negotiated a property settlement, culminating in a mediation on 6 October 2011, just 11 days before Ms Gaskell was killed.  They had reached a consensus as to the division of their assets save that Ms Gaskell was requiring a payment of $30,000 (or perhaps $40,000) to which the appellant would not agree.  The appellant then said that if he and Ms Gaskell could not reach a concluded settlement, all of their jointly held property would have to be sold, including the house in which the deceased had lived until shortly before these events.  The prosecutor’s argument, as the trial judge described it when summing up, was that “the defendant had a motive to kill, namely, to eliminate the problem caused by [the refusal of] Mrs Gaskell to accept a settlement that he regarded as reasonable.”
5. The trial judge directed the jury in the terms of the direction as to motive which is in the Supreme and District Courts’ Benchbook.  The appellant’s argument is that this direction was not tailored to the facts and circumstances of the present case and that the result was something which was unfairly favourable to the prosecution.  Before discussing that argument, it is necessary to say something of the original ground of appeal.

Unsafe and unsatisfactory verdict

6. The grounds upon which this court may allow an appeal against conviction are prescribed by s 668E(1) of the Criminal Code, in terms which are relevantly identical to the criminal appeal provisions of other Australian jurisdictions.  As the plurality observed in M v The Queen,^[3] these provisions “allow a verdict that is unsafe or unsatisfactory to be set aside, notwithstanding that those words do not appear in the legislation.”  Section 668E(1) provides:

“(1)The Court on any such appeal against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or can not be supported having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal.”

7. Most commonly, the description “unsafe and unsatisfactory verdict” is used to refer to the ground of appeal that the verdict of the jury is unreasonable.  But it may refer to some other basis for appellate intervention, as the plurality explained in M v The Queen:^[4]

“Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory.  Other terms may be used such as ‘unjust or unsafe’, or ‘dangerous or unsafe’.  In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict.  Questions of law are separately dealt with by s 6(1).  The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, ‘none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand’.  But a verdict may be unsafe or unsatisfactory for reasons which lie outside the formula requiring that it not be ‘unreasonable’ or incapable of being ‘supported having regard to the evidence’.  A verdict which is unsafe or unsatisfactory for any other reason must also constitute a miscarriage of justice requiring the verdict to be set aside.  In speaking of the Criminal Appeal Act in Hargan v The King, Isaacs J said:

‘If [the appellant] can show a miscarriage of justice, that is sufficient.  That is the greatest innovation made by the Act, and to lose sight of that is to miss the point of the legislative advance.’”

(emphasis added)

8. With one qualification, which is discussed below, the court has no indication of the nature of the ground which underlies the appellant’s original complaint, in his notice of appeal, that the verdict is unsafe or unsatisfactory.  Without a more particular complaint, which would have been expected to emerge from an argument, the notice of appeal fails to adequately identify a suggested ground of appeal.  The identification of a ground is necessary for the exercise of the jurisdiction of a court of criminal appeal, whose task is not to explore at large whether there is any basis for a complaint about the outcome, but to determine, in an adversarial proceeding, the merit of a complaint which is made by the convicted person.  And for a court to proceed in the former way would be unfair to the respondent to the appeal, which ought to be informed of a case to which it is to respond.  Sometimes the consideration of a criminal appeal will reveal a reason for appellate intervention which was not a ground advanced by the appellant and the appeal will be allowed on that basis.  But it is another thing to say that, unassisted by the appellant, the court must seek out and assess any other ground which has not been identified by the argument.
9. In this case there is an indication of what is not within the original ground of appeal.  The appellant’s outline of argument, written by his senior counsel, makes this concession:

“The matters raised for the jury’s consideration were self‑defence, provocation, and killing for preservation in an abusive domestic relationship.  On these issues it is submitted, with respect, that his Honour correctly directed the jury.  It was open to the jury, on the evidence, to reject that the appellant was acting in self‑defence, on provocation, or for preservation in an abusive domestic relationship.”

The jury was not asked to consider the (partial) defence of provocation.^[5]  But that matter aside, the appellant’s concession makes the nature of his complaint that the verdict was unsafe and unsatisfactory yet more obscure.  And as will appear, the concession is well explained by the strength of the prosecution case.

10. Consequently what must be determined in this appeal are the arguments about the issue of the appellant’s motive, for which it is necessary first to summarise the evidence at the trial.

The background facts

11. The appellant and the deceased were married in 1975 in Fiji.  He was born in 1942.  Two of their children were born in Fiji and another two after the family’s move to Australia in 1978.  The appellant worked as an aircraft maintenance engineer until his retirement, due to an injury, in 1991.
12. There followed years of discord in the marriage although the parties remained together.  The family then lived in the house where ultimately the deceased was killed (which I will call no 17).  At a time when Ms Gaskell was demanding a separation, the appellant travelled overseas for three months before returning to find that his belongings had been moved to a house next door which was also owned by the couple (and which I will call no 15).  For the appellant, this was a source of particular resentment and in August 2011, when Ms Gaskell was away on holiday, the appellant caused her belongings to be moved from no 17 to the garage of no 15 and he moved back to no 17 whilst she had to live elsewhere.
13. By this stage the appellant was in the course of making repairs to no 17 with a view to the house being sold.  The appellant told one of his sons that moving back into no 17 “was his only chance to get a fair split of the settlement.”  When police responded to Ms Gaskell’s complaint that her belongings had been moved from no 17 whilst she was temporarily absent, they were told by the appellant that “she had done it to him, so he was going to do it to her.”
14. In 2009 there was a particular altercation in which, the appellant admitted when interviewed by police about the incident, he pulled the deceased’s hair and “kneed” her and in which she sustained a fractured rib.  More generally, there was abundant evidence of the consistent acrimony between the parties over many years to October 2011.  The appellant’s evidence was that Ms Gaskell was often violent towards him.  Each applied for a domestic violence order against the other.
15. Despite this constant hostility between the two, there were discussions towards a property settlement, facilitated by their children.  By the end of the mediation in October 2011, there was a consensus that the deceased should own no 17 and that no 15, and the other jointly owned house, would become his property alone.  But as already noted, the deceased required a payment to her of $30,000 (or on some evidence $40,000) which he refused to pay.  According to the appellant’s evidence, this requirement for a payment was made only after the parties had reached a settlement in the mediation.  His evidence was that he could not afford such a payment and that he believed that their property dispute would have to be litigated.

The events of 17 October 2011

16. On 17 October 2011, Ms Gaskell went to retrieve some of her items which she believed were at no 15 or perhaps at no 17.  It was in that way that she came to be inside no 17 where she was killed.  A witness recalled walking past no 17 at around 12.25 pm and hearing a woman screaming “help, somebody please help me” and also hearing a “thudding, sort of, slapping noise”.  Another witness, a neighbour, at the same time heard an argument from no 17 followed by a loud scream from a female voice.
17. At 12.28 pm the appellant rang the police on triple 0 saying that he had been attacked by his former wife who had been armed with a knife and that he had been forced to hit her with a hammer to defend himself.  Shortly afterwards police officers arrived at no 17 where the appellant again said that he had hit her with a hammer.
18. The medical evidence detailed the very extensive injuries to Ms Gaskell, who died about two days later.  The most serious injuries and the cause of her death were those to her head.  There were several fractures of her skull which were apparently caused by the hammer blows.  A pathologist described five wounds to the head from blunt force trauma and described the likely degree of force as ranging from mild to moderate to severe.  Another medical specialist described the injuries to her head as very severe global brain injuries, resulting in a torrential bleeding between the brain and the skull.
19. Apart from the head injuries, there was extensive bruising to her lower limbs, abdomen and chest and scratches at the top of her stomach.  There were cuts to a forearm which a pathologist described as characteristically caused by a sharp force injury such as a cook’s knife and characteristically defensive injuries.  There were cuts to her fingers which were also characterised as defensive injuries.
20. The appellant gave evidence in his own defence.  He described his wife as having a similar height and weight (94 kg) to his own.  He said that after the family’s move to no 17, which was some time after 2000, their relationship had deteriorated and they frequently argued, when she would often make a motion with a knife towards him.  He said that he moved out of no 17, not only because she required him to do so but also because he considered that it was too dangerous to stay because of what he described as repeated knife and machete attacks.  He instanced what he said was a machete attack in about 2007 in the backyard of no 17, where she threatened him with a machete which he had been using for gardening and which she had dropped only when he picked up a digging fork to defend himself.
21. In his evidence, he described the negotiations for a property settlement and the mediation.  In cross‑examination he agreed, unsurprisingly, that Ms Gaskell was “an obstacle to [his] settling the property matters in a way which was satisfactory to [him]”.  He was asked further questions of the same kind and, unremarkably, said that he was unwilling to settle on the terms which she had proposed.  But the prosecution did not put directly to the appellant that he had meant to kill Ms Gaskell because she was an obstacle to his obtaining all or some of their jointly owned property.
22. The appellant described the events of 17 October 2011 as follows.  He was at no 17, laying flooring in a room in which he had his tools nearby.  Ms Gaskell arrived and they began to discuss their property dispute.  According to his evidence he was suggesting some further negotiation.  They very soon argued when they were each standing in the kitchen.  He said that she then picked up three knives, two cook’s knives and a bread knife, and after putting one knife on the kitchen table, she had a knife in each hand and began to run one blade up the side of the other.  He picked up the third knife and she then swung at him and cut him across the wrist.  He slashed at her and she then suddenly started slashing, mainly at his face.  He said he was trying to back away and went to the dining room.  By this time he was not armed.  She lunged at him with a knife and put a knife under his throat before he grabbed her on the wrist.  He was telling her to drop the knife and she was saying “Don’t hurt me.  Help.”  He said that she was angrier than he had ever experienced and was trying to kill him.  He described a further struggle in which he made an assessment that it was a “do or die situation”, so that he grabbed a nearby hammer (which was with his tools) and hit her on the head just behind her left ear.  He said that he did not think of the level of force he was using, but was simply reacting in an automatic response because there was nothing else he could do.  He described a struggle when they were both on the floor and she was still trying to stab him.  He thought that he had hit her three times.  The struggle ended and he then made the triple 0 call.
23. He was cross‑examined about the positions in which he and the deceased were when he first hit her with the hammer.  He denied hitting her whilst she was on the ground or, that after disabling her, that he had hit her at least twice while she was disabled or helpless.  He also denied using a knife to wound her.
24. A police officer gave opinion evidence about the patterns of blood which he found in the house.  The main bloodstains were found near the entry to the house where a knife and hammer were also found.  He identified bloodstains also in the lounge room, TV room, dining area and in a corridor.  There were bloodstains adjacent to an internal staircase and in an area adjacent to and between pillars near the front of the house.  He described the inferences he was able to draw about the direction from which blood had come by interpreting the characteristics of different blood spots, splashes or stains in certain areas of the house.  In his opinion the bloodstains were consistent with Ms Gaskell having been injured somewhere at the rear of the house in the kitchen/dining area before moving through the hallway towards the front of the house.  In his opinion the staining around the area between the two pillars suggested that Ms Gaskell was at that time quite low down, on or near the floor, indicating that multiple blows were struck whilst she was on the ground or as she was falling to the ground.  He described a stain of blood as having come from a part of Ms Gaskell which was then less than 892 mm above the floor and another stain from a source less than 324 mm above the floor.  The location of those stains were thereby strong indicators of Ms Gaskell’s position when struck with the hammer and were important in proving that the appellant was not acting in self defence.  Further, the location and nature of the head injuries, the prosecution was able to argue, indicated that she had been struck by blows from above her head, contrary to the appellant’s evidence.
25. A paramedic who arrived at no 17 that day treated the appellant for angina, after he complained of chest pain, and observed what he described as a laceration on his forearm, which was not treated.  There were tendered photographs of the appellant’s body, showing marks to his chest, under his chin, on his forearm and his lower back.

The summing up

26. Other than the directions about motive, there is no complaint about the summing up.  The trial judge extensively described the evidence and he well explained the elements of the offence and the possible defences.
27. The arguments of counsel to the jury, it is accepted, were fairly summarised by the trial judge.  On the question of the appellant’s intention, he reminded the jury of the prosecutor’s argument that an intention to kill or cause grievous bodily harm was proved, in particular, by the appellant’s choice of weapon, the position of the blows to the deceased’s head, the force used in using the hammer and the number of blows applied.
28. As to any motive of the appellant, the trial judge described the prosecutor’s argument as follows:

“He reminded you of Mr Gaskell’s statement to police, in the context of [the 2009] incident, that she always tries to run having confronted him, and argued that here, Mr Gaskell had just had enough and wished to put an end to the property dispute, not in a planned event, but in a spontaneous way.”

He also reminded the jury of the argument by the appellant’s counsel, that:

“[The appellant] had no motive to kill her … and was willing for her to retain the house or that it be sold if the dispute between them about property could not otherwise be resolved.”

29. The appellant’s complaint is about what was said, and not said, in describing the effect which the jury should give to its finding, if made, that there was the motive which the prosecution suggested.  At a relatively early point in the summing up, the trial judge said:

“You’ve heard a little bit said about motive as well.  You’ve heard the reference to [Mr] Gaskell’s motive to kill, including the evidence about the unresolved property dispute between him and his former wife.  The Prosecution relies on it to prove that the defendant had a motive to kill, namely, to eliminate the problem caused by Mrs Gaskell to accept a settlement that he regarded as reasonable.  I direct you that the motive by which a person is induced to do an act or form an intent is immaterial to the question of criminal responsibility.  If, in fact, you decide that the Prosecution has failed to prove guilt because of lack of motive, that does not necessarily – sorry.  Let me read that again. ...

If, in fact, you decide that the evidence is not evidence of motive, that does not necessarily mean that the Prosecution has failed to prove guilt because of lack of motive.  In that event, you would have to base your verdict on the evidence that you do accept.  However, the existence of motive can be an important factual issue, particularly in a circumstantial case where the Prosecution asks you to infer guilt or infer that the defendant did the act intentionally.  If there is motive, then what might otherwise be inexplicable becomes explicable.  You must bear in mind that the existence of motive without any more could not be sufficient to underlie a finding of guilt.”

Subsequently, when directing the jury as to the element of intention, the trial judge said:

“I have previously mentioned the motive that the Prosecution argues may have driven Mr Gaskell to deal with the obstacle that his wife was creating to what he regarded as an equitable property settlement.  If you found he had this sort of motive, that would, of course, be very relevant to the issue of whether the defendant had the intention of killing or doing grievous bodily harm to his wife.  But if you do not find that there was this sort of motive, that does not mean that there is no evidence of intention.  As I’ve said to you, intention to kill or do grievous bodily harm just means that you meant to kill or do grievous bodily harm, and the time that is relevant is the time of the blows which killed Mrs Gaskell.  That intention is still intention sufficient for this purpose if it was formed shortly before the blows were inflicted.  Intention may be inferred or deduced from the circumstances in which the attack on Mrs Gaskell took place and from the conduct of the defendant before, at the time of, or after the attack.”

The appellant’s argument

30. The appellant’s argument criticised those directions in two ways.  The first was that the trial judge overstated the importance of the appellant’s motive, if the jury found that it existed.  Of the first of the passages which I have set out, criticism is made of the statement that “the existence of motive can be an important factual issue”.  Of the second passage, criticism is made of the statement that the motive, if proved by the prosecution, “would, of course, be very relevant to the issue of whether the defendant had the intention of killing …”.  Those statements, it is argued, created a risk that the jury would give too much weight to the appellant’s motive, if it was proved.  For this first argument, reference was made to the propositions as to instructing juries on motive, which were set out by Kirby J in De Gruchy v The Queen.^[6]  In particular, it was argued that the present case was of a kind as described in the following passage:^[7]

“(4)Where the prosecution has established strong evidence of a motive, it will often be necessary to warn the jury that they must look at all the circumstances of the case and not be unduly affected by the evidence that the accused had a motive to commit the crime.  This is because of the fact that many who have powerful motives to offend never do so.  Motivation is simply one item of the evidence in the case that may tend to show that a particular person committed an alleged act.  The jury may therefore need to be reminded that allowance should be made for the fact that having a motive, and even expressing it, does not, as such, constitute proof of involvement in a crime.”

It was argued that the trial judge ought to have told the jury that the fact of a motive does not mean that there was the requisite intent.

31. The second of the appellant’s criticisms was that the jury should have also been warned that on the evidence in this case, “they should be extremely cautious about finding that there was a motive”.  As this submission was further developed in oral argument, it was to the effect that the suggested motive was of a kind which was disproportionate to the crime alleged, so that the jury had to be cautious in using that motive as a relevant ingredient of a circumstantial case.  The argument sought support from paragraph (3) of Kirby J’s propositions in De Gruchy,^[8] where his Honour said:

“Where a motive of some kind is proved by the evidence, but it appears a trivial one, disproportionate to the crime alleged, it may be proper for the judge to draw such disproportion to the notice of the jury, in fairness to the accused, given that ‘[the] stronger the motive the more influence it is likely to have [on the jury]’.”

(footnote omitted)

The respondent’s argument

32. Pointing out that no such direction or warning was requested at the trial, the respondent’s counsel correctly submitted that there was no wrong decision made on a question of law and that it was for the appellant to establish if there was a miscarriage of justice.
33. It was argued there could have been no miscarriage of justice here, because there was ample evidence to prove the appellant’s intent apart from the evidence of motive.  The argument referred to the evidence of where the victim must have been at the time the blows to her head were inflicted, the nature of the weapon used, the degree of force used and the number of blows inflicted.
34. It was further submitted that if this court otherwise accepted the appellant’s arguments, this was a case for the application of the proviso.  The submission in this respect was that having excluded the defences of self defence and killing in an abusive domestic relationship, as this jury did, “it was inevitable that a jury would convict given the number and nature of the blows struck to the head of the deceased with a hammer some of which were inflicted when she was defenceless on the ground.”  That appeared to be inconsistent with Weiss v The Queen,^[9] because it suggested that the question, in applying the proviso in s 668E(1A) of the Code, would be whether, with the direction and warning suggested by the appellant’s argument, the jury in this trial would have convicted him.

Were the directions adequate?

35. It was necessary for the trial judge to explain, as he did, the difference between motive and intention and that a motive, not being an element of the offence, did not have to be proved for the appellant to be guilty.  Those directions were given.
36. There was no objection at the trial to the use of the standard direction on motive in the Benchbook.  However, that is not a direction which would be appropriate in each and every case, because, as Kirby J said in De Gruchy,^[10] “[n]o general direction can be formulated to accommodate all the different circumstances that can arise”.  The Benchbook direction that “the existence of motive can be an important factual issue, particularly in a circumstantial case where the prosecution asks you to infer guilt or infer that the defendant did the act intentionally” is a valid proposition but, because of its generality, it is unlikely to assist in the task of fact finding in any particular case.  Nevertheless, for present purposes it may be said that the generality of the directions which are criticised made it less likely that they would be influential, and more particularly, that they would be unfavourable to the appellant’s case.
37. There is a tension between the appellant’s two arguments.  The first suggests a risk that the jury concluded too readily that the appellant was guilty from the fact of a strong case of a motive to kill his former wife.  But the second is that the judge should have commented upon the weakness of the prosecutor’s argument about motive.
38. The prosecution argument about motive was weak, in that it did not provide a likely explanation for the appellant’s alleged murder.  The prosecution was not suggesting that this was a premeditated murder, in the sense that prior to the struggle in which Ms Gaskell was killed, the appellant had made up his mind to kill her.  Its argument was that the appellant wanted “to put an end to the property dispute, not in a planned event but in a spontaneous way”, as the trial judge summarised it.  On this argument, the appellant had been motivated to kill his former wife by believing, in the heat of the moment, that this would put paid to whatever had been his concerns about their property.  Yet the evidence did not suggest a particular worry of the appellant that the property dispute would have to be litigated.  For example it did not suggest that the appellant was fearful of losing all or most of his property or that he believed that the outcome of litigation would be much different from the settlement which he had tried to conclude.  This was not a case where it appeared that a defendant was in such a drastic financial position that he might have thought that committing a murder was the only solution to his problems.
39. Of course, crimes are not always committed by rational people and very serious crimes can be committed for trivial reasons.  But in the present case, it was unlikely that in the course of the struggle between the appellant and his former wife, he was induced to kill her by a belief or a hope that it would result in a satisfactory distribution of their property.  The true relevance of the unresolved property dispute was that it aggravated the appellant’s sense of resentment and in that way it could have been influential in his deciding to act as he did.
40. Therefore whilst a comment to the jury that the suggested motive provided a relatively unlikely explanation for the offence could have been made, such a direction was not necessary.  The jury was able to assess the strength or otherwise of the motive argument without such a comment.
41. In the second of the passages which I have set out at [28] the trial judge said that if the jury found that the appellant did have this motive, that would be “very relevant” to whether he held the requisite intent.  That was a valid observation and the appellant’s argument did not criticise it.  It did not suggest that the prosecution argument about motive was strong or that the jury should infer the requisite intention if that motive was proved.  In this case there was no need for a direction of a kind set out in proposition (4) in Kirby J’s judgment in De Gruchy.

Conclusion and order

42. There was no miscarriage of justice from the directions which were given (or not given) on the question of motive.  Whilst the directions may have been too general in some respects, it cannot be accepted that the omission of the direction or warning, as suggested in the appellant’s argument, could have affected the verdict.  I would order that the appeal be dismissed.
43. PETER LYONS J:  I have had the advantage of reading in draft the reasons for judgment of Philip McMurdo JA.  I gratefully adopt his Honour’s description of the background facts, the events relating to the death of the deceased, the summing up, and the arguments of the parties.

Challenge to summing up

44. It is sufficient for me to extract three passages from the summing up.  The immediate context in which each appears can be seen in the reasons for judgment of Philip McMurdo JA.
45. The first passage is as follows:

“You’ve heard the reference to [Mr Gaskell’s] motive to kill, including the evidence about the unresolved property dispute between him and his former wife.  The Prosecution relies on it to prove that the defendant had a motive to kill, namely, to eliminate the problem caused by Mrs Gaskell^[11] to accept a settlement that he regarded as reasonable.”

46. Like Philip McMurdo JA, I consider the prosecution’s argument as to motive to be weak; and that it was unlikely that the appellant was affected by it in any significant way in the course of his attack on his wife, which led to her death.  While I recognise that the evidence in a case may show that a motive, which in many other cases would be weak, is in the case in question a strong one, my perusal of the evidence does not lead me to conclude that this is such a case.  I would nevertheless add that, in the circumstances, I think it likely that the jury would have formed the view that the appellant wished to be rid of the problem caused by the fact that his wife would not agree to a property settlement.
47. Shortly after this statement, the learned trial Judge said the following:

“However, the existence of motive can be an important factual issue, particularly in a circumstantial case where the Prosecution asks you to infer guilt or infer that the defendant did the act intentionally.”

48. In the present case, the prosecution asked the jury to infer the appellant’s intention to kill or to cause grievous bodily harm to his wife.
49. The third passage to which I shall refer occurred when the learned primary Judge returned to the question of motive, which the prosecution argued may have driven the appellant to “deal with the obstacle that his wife was creating to what he regarded as an equitable property settlement.”  The summing up then continued:

“If you found he had this sort of motive, that would, of course, be very relevant to the issue of whether the defendant had the intention of killing or doing grievous bodily harm to his wife.”

50. As is apparent from passages from the judgment of Kirby J in De Gruchy v The Queen^[12], the potential significance of a motive can vary enormously from case to case.  As Kirby J noted^[13], in some cases, a motive might exist but appear trivial.
51. It seems to me that the effect of the passages from the summing up set out above is that they may well have led the jury to attribute a significance to the motive relied upon by the prosecution which it did not bear; and to find as a result that the appellant had an intention to kill or cause grievous bodily harm to his wife, at the time of the attack.  It seems to me likely that the jury would have understood the statement that the alleged motive “would, of course, be very relevant” to the issue relating to the appellant’s intent, as a statement that the alleged motive had significant probative force on the question of intent; when it did not.
52. The appellant’s written outline contended that the direction on motive “was insufficient to fairly direct the jury on this topic in relation to this matter”.  Criticism was made of the absence of a balancing direction, to the effect that the mere fact that there is motive does not mean that the killing was intentional.  I take that to be a submission that the learned trial Judge erred by failing to draw attention to the weakness of the motive alleged in the present case.
53. In his oral submissions, Mr Glynn QC, who appeared for the appellant, said, “His Honour should’ve warned the jury or cautioned the jury about the nature of the motive that was alleged”.  That was with reference to a submission that, where there is strong evidence of the existence of a motive, but the motive is weak, the jury must be warned against being unduly affected by that evidence, relying on proposition (4) from the judgment of Kirby J in De Gruchy.^[14]  I also understand the oral submission to be critical of the significant emphasis given to the evidence of motive in the present case, in the last passage which I have extracted from the summing up,^[15] particularly in the absence of a balancing direction.^[16]
54. It is obviously appropriate for a trial Judge to point out to the jury, in a case where motive is relied upon, that motive is not itself an element of the offence.  Nevertheless, the risk that a jury may be unduly influenced by evidence of motive is made apparent by the statement of Kirby J in De Gruchy^[17] that, “… it will often be necessary to warn the jury that they must look at all the circumstances of the case and not be unduly affected by the evidence that the accused had a motive to commit the crime”.  In a case where the motive is weak, but the jury has been told that “the existence of a motive can be an important factual issue”, and that a motive of the kind relied upon by the prosecution “would, of course, be very relevant” to the question of intent, it seems to me that the risk of error is greater than it might otherwise be.
55. Once it became appropriate to give a direction about motive, it is difficult to say that it was safe to leave it to the jury to act on its own assessment of the significance of the evidence on that topic, in a way different to that indicated by the learned trial Judge.
56. The respondent did not submit that if it were accepted that the directions relating to motive were defective, nevertheless the appellant had not shown that it was reasonably possible that the jury would not have returned a verdict of guilty;^[18] nor did the respondent attempt to demonstrate (save by reference to the proviso found in s 668E(1A) of the Criminal Code, discussed later) that the verdict of the jury was unaffected by the erroneous direction on motive.^[19]
57. There is plainly a very real prospect that the jury’s verdict was unaffected by the directions relating to motive.  Nevertheless, I would hold that the appellant has established that there was a miscarriage of justice.  It then becomes necessary to consider whether the miscarriage was substantial.

No substantial miscarriage of justice?

58. The respondent’s written submissions contended that it was nevertheless inevitable that a jury would have convicted the appellant.  As Philip McMurdo JA has pointed out, that submission is not consistent with the approach to be taken to s 668E(1A) of the Criminal Code, as stated in Weiss v The Queen.^[20]  It was orally submitted for the respondent that this Court was in as good a position as the jury to determine the appellant’s intent.  The appellant’s written submissions contended that the errors in the directions relating to motive themselves constituted a substantial miscarriage of justice.
59. In Weiss, the High Court pointed out that, when applying a provision such as s 668E(1A) of the Criminal Code, the appellate Court must make its own independent assessment of the evidence, and determine whether, making allowances for the position of an appellate Court proceeding on the record, the defendant was proven to be guilty of the offence charged, beyond reasonable doubt.^[21]  That task must be undertaken on the whole of the record, including the jury’s verdict of guilty.^[22]  The jury’s verdict cannot be discarded from the appellate Court’s assessment of the trial record.  The appellate Court must also remain conscious that a criminal trial is an accusatorial proceeding; and the standard of proof is beyond reasonable doubt.^[23]
60. A number of propositions from Weiss were considered in the judgment of Hayne, Crennan and Kiefel JJ in Cesan v The Queen.^[24]  Although the case which their Honours were considering was found not to be a case of this kind, their Honours said,^[25]

“In many cases where the proviso is to be considered, the fact that the jury returned a guilty verdict will indicate rejection of any explanation proffered by the accused in evidence.”

61. The only issue to which the challenged directions were relevant was the question whether the appellant intended to cause the deceased’s death, or to cause her grievous bodily harm, at the time of his attack.  It follows from the jury’s verdict that all of the other issues in the case were decided against the appellant.  It has not been suggested that there was insufficient evidence to support those findings, or that there was any reason not to accept them, for example, because they were potentially affected by an erroneous direction.  Rather, as Philip McMurdo JA has pointed out, the written outline for the appellant conceded the contrary.
62. In my view, it would follow that the only issue which requires consideration for the application of s 668E(1A) of the Criminal Code is whether this Court should be satisfied beyond reasonable doubt, on a review of the record, that at the time of the attack the appellant intended to cause the death of the deceased, or to cause her grievous bodily harm.  For the reasons which follow, I am so satisfied.  Nevertheless, I shall also review the record, at least briefly, relating to the other issues in the trial.
63. On the question of intent, the prosecution case was circumstantial.  In such a case, a defendant has to be found guilty only if guilt is the only rational inference to be drawn from the circumstances.^[26]  The relevant principle was recently confirmed in The Queen v Baden-Clay.^[27]  In that case, with reference to the question whether “any reasonable hypothesis other than the guilt of the accused” was available on the circumstantial evidence, the Court said,^[28]

“For an inference to be reasonable, it ‘must rest upon something more than mere conjecture.  The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence’^[29] (emphasis added).  Further, ‘in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence’^[30] (emphasis added).  The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal.”^[31]

Relationship between appellant and Mrs Gaskell

64. Mr and Mrs Gaskell were married in 1975.  They had four children.  Over the years they acquired house properties at 15, 17 and 31 Duffy Street, Zillmere.  A new house was constructed on 17 Duffy Street in about 1999.  From that time, Mr and Mrs Gaskell lived at 17 Duffy Street, at times with one or more of their children.  They separated in 2008.  According to Mr Gaskell, it was his decision to do so.  He then went overseas for some months, and on his return he lived at 15 Duffy Street.
65. The couple divorced in 2010.  They negotiated for some time about a property settlement, but did not reach agreement.  There was a substantial body of evidence to the effect that Mrs Gaskell wished to retain, and live in, 17 Duffy Street.  Their negotiations had reached the point where Mr and Mrs Gaskell were prepared to agree that Mrs Gaskell would retain 17 Duffy Street, and Mr Gaskell would retain 15 and 31 Duffy Street.  However, the negotiation agreement was not reached because Mrs Gaskell wanted more.  According to Mr Gaskell, she wanted an additional $40,000 in cash, his Telstra shares, and some property that he had removed from a bedroom (and perhaps elsewhere).
66. The personal relationship between Mr and Mrs Gaskell had been unpleasant for quite a number of years.  It was said that they called each other names, and argued a lot.  Some of the name-calling was quite nasty.  In 2008, after Mrs Gaskell had taken some of Mr Gaskell’s computer equipment from 17 Duffy Street to 15 Duffy Street in a wheelie bin, Mr Gaskell assaulted her, apparently fracturing a rib.  Mrs Gaskell made a complaint to the police.  According to their son John, Mrs Gaskell made an application for a protection order under the Domestic Violence Act shortly after this.  There was evidence that at some point, Mr Gaskell made a similar application.
67. Mr Gaskell gave evidence that from about 1984 onwards, when they were having arguments, Mrs Gaskell would stab at him with a knife; something which became as frequent as once a month.  At times she would use two knives.  He gave evidence that Mrs Gaskell would never do this when anyone else was present.  John gave evidence of two occasions when his parents were arguing in the back area of the house.  Mrs Gaskell was chopping something up in the kitchen area.  She pointed the knife at Mr Gaskell, and at least on one occasion said “I’ll kill the fucking bastard”.  Mr Gaskell also gave evidence of two occasions where, in the yard at 17 Duffy Street, Mrs Gaskell had attacked him with a machete.
68. In August 2011, Mrs Gaskell went on a holiday to Ireland with Mr Eakin, with whom she had formed a relationship.  While she was away, Mr Gaskell engaged removalists to move property of Mrs Gaskell’s from 17 Duffy Street to 15 Duffy Street, and himself took control of 17 Duffy Street.  He said his purpose was to do repair and other work to number 17.  Police were called, and Mr Gaskell told them that Mrs Gaskell had “put me out of my house so I’m putting her out”.^[32]

Intent

69. Mrs Gaskell died on 18 October 2011.  The previous day, Mr Gaskell had attacked her about the head with a hammer.  Dr Lee, a neurosurgical registrar who treated Mrs Gaskell after she was taken to hospital, said that there were four full-thickness scalp lacerations of a crescent shape, with copious bleeding, and brain tissue extending from one lesion.  There appeared to be a severely comminuted skull fracture, apparent on a CT scan.  The likely cause was high impact trauma.
70. Dr Storey conducted a post-mortem examination of Mrs Gaskell on 19 October 2011.  He identified five areas of blunt force trauma to the left side and rear of her head.  The circular profile of the injuries was strongly suggestive of blows from a hammer.  There was an additional blunt force injury towards the rear of the head, almost at the top of the neck, with a laceration, which could not be convincingly resolved into a circular arc.  The degree of force required to cause the fractures was severe, though not all five blows were necessarily delivered with that level of force.  The cause of death was injuries to the skull and brain and associated consequences resulting from the application of force to the head of Mrs Gaskell.^[33]
71. In my view, viewed in isolation, evidence of a series of five blows with a hammer to the head of a person, delivered with sufficient force to cause the injuries suffered by Mrs Gaskell, is sufficient to establish beyond reasonable doubt an intention to cause at least grievous bodily harm to the person who was attacked in that fashion.
72. Mr Gaskell’s evidence was that, after a period of time in which Mrs Gaskell had attempted to attack him with knives (at times as many as three) they came to a point where she held a knife in her right hand, and he had hold of her wrist with his left hand, keeping her against the side of a staircase.  She was kneeing and kicking him, and he was losing control.  She was trying to kill him, and he considered it to be virtually “a do or die situation”.  He grabbed a hammer (this occurred in or near an area where he had been carrying out some work) and hit her on the side of her head, he thought three times, until she dropped the knife.  In his evidence-in-chief, Mr Gaskell gave no other evidence relevant to his intention at the time when he struck Mrs Gaskell with the hammer.
73. In the course of cross-examination, it was put to Mr Gaskell that he hit Mrs Gaskell at least twice when her head was on the floor, which he denied; and he denied the next proposition put to him, that he did that because he wanted to kill or cause grievous bodily harm to Mrs Gaskell.^[34]
74. As I read this evidence, the second denial is a denial based on the association of the intention with blows to Mrs Gaskell’s head while she was lying on the ground.  I would not read it as a denial of an intention to cause death or grievous bodily harm by the series of blows which Mr Gaskell admitted delivering.  If the latter were in fact the correct reading of the evidence, even without the benefit of seeing Mr Gaskell, I would not accept it.
75. In my view, therefore, the evidence adduced at the trial is sufficient to demonstrate beyond reasonable doubt that when Mr Gaskell delivered the blows to Mrs Gaskell’s head with a hammer, he intended at least to cause her grievous bodily harm.
76. It seems to me that the acrimonious relationship between Mr and Mrs Gaskell provides a context which supports this conclusion.

Unlawfulness

77. The remaining issues were whether the prosecution had excluded self-defence both under s 271 and s 272 of the Criminal Code; and whether it had excluded the defence available under s 304B of the Code, relating to killing a person for preservation in an abusive domestic relationship.  These issues arise primarily because of the evidence of Mr Gaskell.  In essence, the effect of Mr Gaskell’s evidence of the events over a short period of time prior to his assault on Mrs Gaskell with the hammer was that she had attempted to assault him with knives; grabbing another knife, he was able to make her retreat into a confined space between a kitchen bench and some cupboards; he then attempted to escape, but fell over in the dining room; Mrs Gaskell had by then caught up with him, and attempted to stab him; he grabbed her right wrist forcing her against the staircase; as she kneed and kicked him, he grabbed the hammer and hit her; she then fell over a two-step ladder.
78. Amongst the support for this version to be found in the evidence was the fact that Mr Gaskell called 000 to summon help; he said that there had been a knife fight and then he grabbed the hammer; his statement to the police who first arrived on the scene was consistent with this account; and the presence of a knife near Mrs Gaskell after the attack.
79. There were, however, other difficulties with his evidence.  They generally appear in the course of his cross-examination.  For example, he did not give a sensible explanation for the route which he said he chose when he attempted to escape.  His version did not account for what appeared to be defensive wounds to Mrs Gaskell’s arm and fingers.  He could not explain the presence of the blood of Mrs Gaskell on a serrated-edged bread knife, nor the presence of a wound or abrasion on her body, consistent with the application of that knife.  There was a degree (it seemed to me) of improbability in his evidence of the circumstances in which Mrs Gaskell said, “Help, help.  Don’t hurt me”; and that evidence was inconsistent with the evidence of a passer-by (Ms Philpotts), which was associated with a thudding, slapping sound.  It also seems to me that the nature and location of the injuries to Mrs Gaskell’s head do not sit comfortably with Mr Gaskell’s account.
80. Nevertheless, not having had the benefit of observing witnesses, and in particular Mr Gaskell, give evidence, I would not be prepared to reach a conclusion on unlawfulness simply on the basis of the record of the evidence.
81. It is apparent, however, that the verdict demonstrates that the jury was satisfied beyond reasonable doubt that these defences were excluded, and that the killing was unlawful.  There is no reason to think that the direction of the learned trial Judge relating to motive, discussed earlier, played any role in the consideration of these issues.  Nor has any submission been made on behalf of Mr Gaskell that the verdict cannot be relied upon in this context.
82. On that basis, I would conclude that the prosecution has established that the killing was unlawful.

Conclusion

83. There was no issue at the trial about whether the attack by Mr Gaskell on his wife with the hammer was the cause of her death.
84. The submissions made on behalf of Mr Gaskell relating to s 668E(1A) of the Criminal Code fail to address the issue which that section raises.  The submissions do not deal with the question whether this Court, making its own independent assessment of the evidence, is satisfied that the appellant was proven guilty of the murder of his wife, beyond reasonable doubt.  I have explained my reasons for so concluding.
85. Accordingly, I agree with the order proposed by Philip McMurdo JA.