R v Sturmey[2004] QSCPR 4

SUPREME COURT OF QUEENSLAND

1. [1]
   Kingi Roy Sturmey is charged with, amongst other offences, the murder of Thomas Gerard Cowen at Charleville on 13 February 2004.  This is an application to quash that count on the indictment because the evidence linking the attack by Mr Sturmey with Mr Cowen’s death is said to be insufficient to satisfy a jury that there was a causal link between the assault and the death. 
2. [2]
   Mr Sturmey had believed, mistakenly, that Mr Cowen, who was a friend, had stolen his wallet.  Each of them had been drinking heavily at a number of hotels in Charleville from lunch time until about 9.30pm.  It was then that Mr Sturmey attacked Mr Cowen near his room at the Charleville Hotel.  Mr Geoffrey Speed, the leaseholder of the Hotel, had become concerned about Mr Sturmey’s behaviour, followed him and was at the scene on the first floor of the Hotel when Mr Sturmey launched the attack.  First he punched Mr Cowen with his left fist to his face.  That caused Mr Cowen immediately to fall to the ground after which Mr Sturmey kicked his body and face.  There were three quick kicks to the body and one to the face according to Mr Speed’s statement.  Mr Cowen’s face was bleeding and he was lying groaning on the floor. 
3. [3]
   Mr Speed pulled Mr Sturmey away but he then went to Mr Cowen’s room, searched it, went back towards Mr Cowen and proceeded to kick his body several more times before Mr Speed pulled him away again.  As he pulled him away he saw Mr Sturmey kick down on Mr Cowen’s head with the heel of his right foot.  He went to kick him again but by then Mr Speed had pulled him away so that the kick did not connect.  At the committal hearing Mr Speed’s oral evidence was that the kicks to Mr Cowen’s chest and stomach area by Mr Sturmey were delivered with a lot of force, causing Mr Cowen’s body to quiver and shake and to move him from lying on his side to lie on his back.  Mr Speed arranged for the ambulance and the police to be called and rendered first aid to Mr Cowen after Mr Sturmey had left.  He noted that Mr Cowen’s breathing had become laboured. 
4. [4]
   An ambulance officer who arrived at the scene at 9.49pm, a Mr Thomson, initially found a weak and “thready” pulse.  Mr Cowen’s heart rate and breathing rapidly slowed, a defibrillator was applied and cardiopulmonary resuscitation (“CPR”) was commenced.  While he retrieved further equipment from the ambulance, two police officers assisted with the chest compression of Mr Cowen while another ambulance officer continued to treat him.  CPR was continued during that time and on the way to the hospital but Mr Cowen was declared dead at 10.25pm at the hospital after he had received approximately 36 minutes of CPR.  Mr Thomson’s statement concludes with the words: “I remember thinking at the scene it was like the power had been switched off to the patient.  His breathing and heart rate seemed to just run out.” 
5. [5]
   He was asked about the possibility of CPR leading to fractures of the sternum and rib area.  He agreed that could occur but he could not recall it happening on this man because of his size.  There was evidence on the autopsy of a transverse fracture through part of Mr Cowen’s sternum, disruptions to the left and right fourth to seventh rib cartilages and fractures of the right second to fifth ribs with the right fourth rib fracture puncturing the parietal pleura.  There was also a small to medium size rupture involving the right lobe of the liver.  The pathologist, Dr Lampe, agreed that there was little blood seeping from it, which was consistent with the injury having occurred around the time of death.  Mr Walsh’s submission, from this and other evidence that the deceased was kicked on the left side, was that the evidence of bruising and injury to the body was not consistent with the vigorous kicking described by Mr Speed. 
6. [6]
   Dr Lampe’s opinion of the cause of death was that it was a combination of ischaemic heart disease and the traumatically inflicted injuries.  He diagnosed Mr Cowen as having suffered from ischaemic heart disease based on the autopsy examination and believed that condition was likely to have played a significant role in his death.  He said at p. 85 of the transcript of the committal hearing that it was possible that if his airway had been obstructed it would result in inadequate breathing and low blood oxygen producing either a serious brain injury or worsening the ischaemic heart disease.  That evidence was criticised by Mr Walsh on the basis that it was speculation and it is true that there is little evidence available to establish that his breathing was obstructed, especially after the ambulance officers inserted a tube down his throat to assist his breathing.
7. [7]
   Under cross-examination, at p. 90, Dr Lampe agreed that he could not exclude the possibility that Mr Cowen simply died of some form of heart failure, apart from the injuries, and that he could not quantify the contribution of the injuries to the death.  He also agreed with the suggestion put to him that the contribution could have been zero or may have been more than zero.  At p. 93 he also agreed that he could not say beyond reasonable doubt that the assault contributed substantially or significantly to Mr Cowen’s death, no doubt a telling admission but also one that comes rather close to swearing the ultimate issue for the jury. 
8. [8]
   In re-examination at p. 94, however, when asked whether Mr Cowen died from the assault or from his ischaemic heart disease he said that it was a very difficult call to make and that he thought that Mr Cowen died as a result of the combination of the assault “along with his natural disease processes”.  He went on to say:

“But as the defence has said, beyond absolute reasonable doubt, I cannot say that he hasn’t died as a result of his ischaemic heart disease because we do see young men turning here to the Forensic Institute just dying suddenly for no apparent cause and we do the autopsy and all we can find are similar heart pathology as what was found in this man.”

9. [9]
   Mr Cowen was 44 years old, having been born on 14 October 1959.  He weighed 126 kgs but was only 166 cm tall.  Not surprisingly he was described as obese.  He appears to have worked as a shearer, however, so I can probably assume that he was reasonably active. 
10. [10]
    The argument advanced by Mr Walsh for Mr Sturmey is that there is no or no sufficient evidence of any causal link between the injuries sustained during the assault and the heart failure.  He also submits that, in the absence of such evidence, the jury would not be entitled to substitute their own opinion as to the cause of the death to conclude that the assault by Mr Sturmey was a substantial or significant cause of or substantially contributed to Mr Cowen’s death see R v Royall (1990) 172 CLR 378, 411, 423 applied in R v Carter (2003) 141 A Crim R 142, 144 at [7]-[8] and R v De Voss [1995] QCA 518 at p. 19.  Factually, also, he pointed to the evidence of Mr Thomson about Mr Cowen’s breathing and heart rate seeming to “just run out” shortly after he arrived at the scene as suggestive of heart failure occurring then rather than immediately upon the assault and, arguably, therefore, having been caused independently of the assault.  As other explanations of the death affecting his underlying condition of ischaemic heart disease he pointed to the deceased’s obesity, his excessive drinking, the heat of the evening and, possibly, the administration of CPR by police officers not as accustomed to providing that form of first aid as ambulance officers. 
11. [11]
    There are problems with those submissions because Dr Lampe’s evidence is still consistent with there being combined causes of the death from the assault and the heart condition.  Even though he agreed that the injuries appeared to be insufficient to account for Mr Cowen’s death in their own right he clearly was of the view that they contributed to the death while conceding that it was possible that they did not.  In those circumstances, where his evidence is coupled with the coincidence in time between the attack and the death and the evidence about the nature and violence of the kicks to the body, which may not have been available to him but would be to a jury, it seems to me that it is a question for the jury to decide whether it is satisfied beyond reasonable doubt that Mr Cowen’s death was connected with the attack.  To use the language of the High Court in R v Puckeridge (1999) 74 ALJR 373, 374 at [11]:

“It was, thus, open to the jury to be satisfied beyond reasonable doubt that the respondent had physically attacked Mrs Thomas and that his attack either coincided with or immediately preceded her death.  Once that conclusion was reached, it was open to them to dismiss as unreasonable the possibility that her death was unconnected with that attack.  The Court of Criminal Appeal was wrong to conclude otherwise.”

12. [12]
    See also R v Carter at [13] and R v Summers [1990] 1 Qd R 92, 92-93 and especially 99 where McPherson J said:

“[O]ne should not confuse a proper regard for the requirements of complete scientific accuracy with the rule of law that guilt should be proved beyond reasonable doubt.  Scientific proof, says Phipson, ‘may require certainty. To require it of legal proof would be to produce absurdity’: Phipson on Evidence, 13th ed., para. 4-31, at 62.  The example offered in that text is R v Bracewell (1978) 68 Cr.App.R 44, where, in ascribing death to manual strangulation, the pathologist who testified at a trial for murder conceded that he could not, with absolute certainty, rule out the possibility that there had been partial strangulation, recovery and then a fatal heart attack. In approving the direction given to the jury in that case, Ormrod L.J. said (68 Cr.App.R 44, 49):

‘That direction, in our judgment, correctly draws the distinction between what might be described as scientific proof on the one hand and legal proof on the other.  It is, with respect, an admirably lucid and succinct way of dealing with a problem which often arises in connection with scientific evidence.  It is, of course, part of cross-examining counsel’s duty to invite expert witnesses to consider alternative hypotheses and, after examining them in detail, to conclude by asking “Can you exclude the possibility?”.  The available data may be inadequate to prove scientifically that the alternative hypothesis is false, so the scientific witness will answer “No, I cannot exclude it,” though the effect of his evidence as a whole can be expressed in terms such as “But for all practical purposes (including the jury’s), it is so unlikely that it can safely be ignored”.  This is in substance what Dr. Green said.’

In relation to the standard of proof, the direction given in that case used language which, although acceptable at the time in England, has been rejected in Australia:  See Thomas v The Queen (1960) 102 CLR 584, 593; Dawson v The Queen (1961) 106 CLR 1, 18.  Subject only to that qualification, what was said in R v Bracewell is plainly correct and applies with equal force to the evidence and circumstances in this case.”

13. [13]
    This is not a case where the hypothesis that the deceased died from heart disease independently of the attack is so unlikely that it can safely be ignored.  The issue is not, however, one that can be resolved only by reference to the medical evidence.  Where that evidence and the evidence of the nature of the assault are both relevant and the medical evidence is, on one view, consistent with the assault and the ischaemic heart disease combining to cause the death, there seems to me to be evidence that can be taken into account by the jury and which is capable of supporting a verdict of guilty.  The result is that the matter should be left to the jury to decide; see R v Doney (1990) 171 CLR 207.  Accordingly I dismiss the application.