R v Karran[2022] QSCPR 9

SUPREME COURT OF QUEENSLAND

1. [1]
   The applicant is charged on indictment with one count of manslaughter, six counts of choking, suffocation or strangulation in a domestic setting; nine counts of rape and five counts of sexual assault.  The alleged victim of all the offences is the applicant’s wife of 33 years.  The applicant was aged 72 at the time, and is 76 now; his wife was 66 at the time.
2. [2]
   The charges arise out of a protracted incident which started at about 5.00 am on 1 November 2017, during which it is alleged the applicant assaulted, choked, sexually assaulted and raped his wife on multiple occasions, in an attack lasting just under two hours.  The entire attack was captured in an audio recording which was made without his knowledge.  In its submissions, the prosecution contends the recording is capable of proving that the accused:

   1. (a)
      slapped his wife, most likely to her face or head, over 100 times;
   2. (b)
      told his wife he was going to kill her upwards of 25 times;
   3. (c)
      persistently abused her, frequently referring to her as being a “fucking bitch” or “fucking cunt”;
   4. (d)
      choked her upwards of fifteen times;
   5. (e)
      sexually assaulted her by touching her genitals numerous times; and
   6. (f)
      raped her by penetrating her genitals with his finger(s), having her penetrate herself with a finger(s), penetrating her mouth with his penis numerous times and penetrating her genitals with his tongue.
3. [3]
   The prosecution’s submissions also record that:

   1. (a)
      The attack petered out shortly after 7.00 am.  At that time, the applicant noted that the deceased was bleeding from a laceration under her left arm pit.  He took her to the Hervey Bay Hospital, arriving shortly before 7.30 am.  She was discharged later that day.
   2. (b)
      The following day, 2 November 2017, the applicant took the deceased to Brisbane for a regular health check.  
   3. (c)
      On 3 November 2017, at about 1.00 am, the applicant says he observed the deceased having seizures in bed and an ambulance was called.  The deceased was taken to the hospital again, where she remained until she died six days later on 9 November 2017. 

On 4 November 2017, while in the hospital, she was noted to have extensive bruising to the left side of her face by a nurse.  From the summary in the applicant’s submissions at [3.6]-[3.7], this bruising was also noted on 1 November (at the hospital) and 2 November (at the health check-up).

4. [4]
   A post-mortem examination was conducted by Dr Kedziora.  As recorded in [31] of the prosecution’s submissions, Dr Kedziora noted in the report that:

“The cause of death is the consequences of head injury on a background of complications of CREST syndrome. The head injury initiated a sequence of events, which culminated in Ms Karran's death. The head injury caused bruising of both sides of the brain (contusions of both temporal lobes) and a small amount of blood over the brain surface (subarachnoid haemorrhage). The changes were subtle and were not reported on the initial CT scan on 01.11.2017. Ms Karran was discharged, as her neurological status was not concerning at that stage. On 03.11.2017 she suffered from seizures and was readmitted. The cause of seizures was not clear; the brain bruising and surface blood were not reported on a repeat CT scan. She had at least three bouts of seizures, did not regain consciousness between them, and was diagnosed with status epilepticus. She was treated with an anti-epileptic medication phenytoin. Her general condition improved and she was able to be extubated on 04.11.2017, but had to be re-intubated and ventilated on 05.11.2017.”

5. [5]
   In short, Dr Kedziora expresses the opinion that the cause of death was:

1. (a)
    multiorgan failure, due to, or as a consequence of;

2. (b)
    post-traumatic epilepsy, due to, or as a consequence of;

3. (c)
    traumatic brain injury.

6. [6]
   The doctor also notes the deceased suffered from “other significant conditions”, being CREST syndrome.
7. [7]
   On the basis of this evidence, the Crown case, on the charge of manslaughter, is that the applicant caused the deceased’s death, in that, in the course of the protracted assault of her on the morning of 1 November 2017 he caused an injury to her head, which “initiated a sequence of events” culminating in her death.  If not the sole cause of death, the Crown case will be that the head injury was a substantial or significant cause of death, or substantially contributed to death.
8. [8]
   According to paragraph 8.4 of the applicant’s submissions, a report has been obtained from a Professor Duflou, who considered “the most accurate cause of death to be multiple organ failure in a patient with CREST syndrome and its complications, traumatic brain injury, seizures and therapeutic drug overdose”.   Professor Duflou is recorded as saying there was very limited subarachnoid haemorrhage over the surface of the brain, noting also that the haemorrhage identified at the time of the autopsy and on neuropathological examination was entirely missed antemortem and there was no indication of the presence of such haemorrhage in the antemortem and post-mortem CT scans.
9. [9]
   The cause of the deceased’s death will be a significant issue at the trial, with competing expert opinions in relation to that issue.
10. [10]
    By application under s 590AA of the Criminal Code, the applicant applies for the exclusion of certain evidence, as well as an order under s 615(1) of the Criminal Code that the applicant be tried on the indictment by a judge sitting without a jury.  It is only the latter part of the application that is before me for determination.  The application to exclude evidence has been heard by Crow J.
11. [11]
    The relevant principles are not controversial.  They are helpfully summarised in the reasons of Burns J in R v Pentland [2020] QSC 78 at [9].
12. [12]
    Relevantly, the court may make a no jury order if it considers it is in the interests of justice to do so (s 615(1)).  Acknowledging that the phrase “interests of justice” is not amenable to precise definition, and will depend on the circumstances of each case, it can be said that the interests of justice in a criminal case are to ensure that a person who is accused of a crime is convicted if guilty and acquitted if innocent after he has had a fair trial; the public interest in seeing that those things happen; and the due administration of justice.^[1]
13. [13]
    Without limiting the breadth of the discretion conferred by s 615(1), the court may make a no jury order if, relevantly, it considers the trial, because of its complexity or length or both, is likely to be unreasonably burdensome to a jury (s 615(4)); or may refuse to make the order if it considers the trial will involve a factual issue that requires the application of objective community standards (s 615(5)).
14. [14]
    In this matter, the identity of the trial judge is known, because the trial is listed to be heard in the upcoming sittings in Maryborough, where Crow J will preside.  Accordingly, a no jury order may be made only if the court is satisfied there are special reasons for making it (s 614(3)).    As Burns J noted at [9(j)] of Pentland, the question whether there are “special reasons” will not usually arise unless the court is otherwise minded to make a no jury order and so, ordinarily, it would be necessary to consider first whether there are grounds which justify a no jury order and then, if there are, to consider whether there are special reasons for making such an order.  However, it is possible the grounds and the reasons might overlap.  In this case, the applicant relies upon the grounds as also providing special reasons why the order should be made.
15. [15]
    As summarised in the supporting affidavit of Ms Oswald, affirmed on 8 July 2022, the grounds on which the applicant submits it is in the interests of justice to make a no jury order are:

    1. (a)
       the audio recording, which is the foundation of the Crown case, is extremely graphic and has the potential to be significantly prejudicial;
    2. (b)
       the case involves consideration of technical medical evidence, including contested expert evidence, relating to the cause of death;
    3. (c)
       to ensure a fair trial, it is crucial the evidence and charges are considered in a clinical and logical manner.  Due to the grounds raised in (a) and (b) above, and their interrelation, a judge is best placed over a jury to consider the medical evidence without being overwhelmed by the prejudicial nature of the recording; and
    4. (d)
       given the length and nature of the trial, and the escalating Department of Health predictions regarding the Omicron wave of the pandemic, a no jury order would provide more certainty the trial could be heard on its current listing, without any further delay.
16. [16]
    The trial is scheduled to commence, I understand, on 22 August 2022, in Maryborough.  It has an estimate of two weeks.
17. [17]
    For the purposes of determining this application, I have listened to the whole of the recording, the substance of which lasts for about one hour and 50 minutes although, as the prosecutor noted, it tapers off in the last 20 minutes or so.  Still, it is a lengthy recording.  The recording is aptly described by the prosecutor as “explicit and emotionally challenging”; and by defence counsel as “traumatic”.  To those I would add confronting and graphic, both in terms of the language that is used, but also what can be heard of, I infer, the physical and sexual assault of the deceased, including hitting, slapping, choking and the audible gasps of the deceased. 
18. [18]
    Counsel for the applicant emphasises the length and content of the recording, as well as the two competing views of the medical experts as to the cause of the deceased’s death.  He also notes that the evidence will be that the deceased was 66 at the time, a frail and slightly built woman, who had complications with her health at the time she was set upon by the applicant – matters the defence anticipates the prosecution will emphasise.
19. [19]
    The applicant does not rely upon the prejudicial nature of the recording, on its own; nor upon the complexity of the medical evidence, on its own.  The applicant submits it is in the interests of justice to make a no jury order because, if the trial were to be by jury, having listened to what counsel for the applicant describes as the compelling and highly prejudicial recording, the jury will be traumatised, and have such empathy for the Crown case, that it will unfairly colour their ability to objectively consider the substantive issue of causation by reference to the evidence.   It is not the recording itself which is relied upon; but the fact that, having listened to it, the jury will then be required to objectively and dispassionately consider the evidence as to causation, which, the applicant submits, the jury will not be able to do.
20. [20]
    Counsel for the applicant submits no direction could be given to the jury to overcome this.   Further, counsel for the applicant submits the issues of causation to be determined are “technical in their nature”, and that “a judge alone would be in a better position to consider the technical nature of the medical evidence and is best placed to ensure the traumatic recording has no bearing on the issue of whether the Crown has proved causation beyond reasonable doubt”.
21. [21]
    For the Crown it is submitted that neither the length of the trial, nor the issues at the trial, are such as to make it unreasonably burdensome to a jury.  In so far as the issue of the cause of death will involve evaluating the reasoning of the expert witnesses to be called, the Crown submits the concepts underlying those opinions are not complex, and notes that juries are regularly required to consider such matters.
22. [22]
    Whilst accepting that the recording is “explicit and emotionally challenging”, the Crown submits it is not so explicit as to be likely to traumatise members of the jury, especially if they are forewarned of the nature of this evidence at the time of empanelment.
23. [23]
    In addition, the Crown submits the evidence is less challenging, for example, than the evidence of the killing of three siblings in the Sica case or evidence of sexual offending against a child.
24. [24]
    Accepting that the recording is prejudicial to the applicant, the Crown submits:

    1. (a)
       first, that is because it is compelling evidence of the applicant’s offending; and
    2. (b)
       second, in so far as it may be prejudicial because of the potential for the jury to give it more weight because of an “empathic engagement”, this kind of prejudice is “routinely neutralised” by appropriate directions to the jury, to approach their task dispassionately, without regard to sympathy or prejudice, and by reference to the evidence and only the evidence.
25. [25]
    The Crown also submits that this is a case in which the application of objective community standards is relevant to the determination of the issues at trial, including what the jury makes of the evidence in the recording in terms of the deceased’s state of mind (in terms of consent); the applicant’s state of mind (as to whether the deceased was consenting); determining what acts took place in the course of the incident; determining what level of violence was involved, having regard to the applicant’s apparent demeanour and behaviour; and whether that caused a head injury.  The Crown submits what is called for is a qualitative assessment of the evidence, which is appropriate for a jury.
26. [26]
    The system of trial by jury proceeds on the assumption that jurors can be trusted to be true to their oath or affirmation – which is to conscientiously try the charges against the defendant and decide them according to the evidence.  As was observed by Mason CJ and Toohey J in R v Glennon (1992) 173 CLR 592 at 603, the law proceeds on the footing that the jury, acting in conformity with the instructions given to them by the trial judge, will render a true verdict in accordance with the evidence; and that “in the past too little weight may have been given to the capacity of jurors to assess critically what they see and hear and their ability to reach their decisions by reference to evidence before them”.
27. [27]
    Those observations were made in the context of the impact of pre-trial publicity.  A similar issue arose in R v Ferguson; Ex parte Attorney-General (Qld) (2008) 186 A Crim R 483.  In that case, after referring to passages from a number of authorities, including R v Glennon, the Court said, at [39] and [40]:

“These passages emphasise the need for circumspection on the part of a court in acting upon a prediction of the inability of the jury to render a verdict fairly in accordance with the directions of the trial judge.  It is necessary to bear in mind that, pursuant to s 50 of the Jury Act, the members of a jury swear ‘to give a true verdict, according to the evidence, on the issues to be tried…’.  The passages which we have set out above also emphasise that the system of trial by jury proceeds on the assumption that jurors can be trusted to be true to their oath.

The jury trial has not been regarded and should not be regarded, as an exotic and delicate contrivance, the integrity of which cannot survive jurors’ knowledge of matters adverse to an accused gained other than through admissible evidence.”

28. [28]
    These principles apply equally in this case, which is not concerned with pre-trial publicity, but with the prejudicial effect of the fact that there is a recording of the whole of the incident between the applicant and the deceased.  Whilst it is not common to have evidence of that kind available (although this may become more common, with the ready availability of recording devices) juries are commonly confronted with graphic evidence in the form of photographs, CCTV or surveillance footage, and the oral evidence of complainants and other witnesses about all manner of highly traumatic events.   
29. [29]
    I accept the submissions for the Crown, that the issue of causation, by reference to expert medical evidence, is not so complex as to support the making of a no jury order.  I note in any event that the applicant does not rely upon this on its own – rather, as noted above, the emphasis is upon what the applicant submits will be the inability of a jury to objectively determine this issue, by reference to the medical evidence, after hearing just under two hours of the evidence contained in the recording.
30. [30]
    As to that, a jury in this matter can be expected to have been forewarned by the trial judge about the graphic nature of this evidence, just as a jury in a murder case, for example, may be forewarned where the evidence, or circumstances, of the deceased’s death, is anticipated to be particularly gruesome.  They will, as a matter of course, be instructed at the commencement of the trial, during the judge’s opening remarks, to reach their decisions about the facts only on the basis of the evidence, and to ignore all other considerations.  They will also be instructed that emotion is to play no part, and that in particular they must ignore any feelings of sympathy for, or prejudice against, the defendant or the deceased.  These directions will be re-emphasised during the summing up, and there will also be specific directions about the issues (for example, causation) and how to deal with the expert evidence.  It may be anticipated that the trial judge in a matter such as this will emphasise the need to carefully consider the question of causation, by reference to the evidence, and not on the basis of any assumptions having regard to the evidence of the recording.  
31. [31]
    It should not be assumed that the members of a jury charged with trying the charges against the applicant would ignore their oath or affirmation, and ignore instructions and directions of this kind given to them by the trial judge to, in effect, misuse the evidence contained in the recording by reasoning impermissibly, without reference to the evidence, when determining the issue of causation.  In fact, it is the contrary that should be assumed – that is, that they will be true to their oath or affirmation. “To conclude otherwise is to underrate the integrity of the system of trial by jury and the effect on the jury of the instructions given by the trial judge”.^[2] 
32. [32]
    Having listened to the recording, as graphic and confronting as it is, I am not persuaded that a jury, properly instructed and directed as they will be, would not be perfectly capable of properly discharging their obligation.  This is a matter that is appropriately, and fairly, tried by a jury.
33. [33]
    Although reliance was also placed on the potential for disruption to the trial as a result of COVID-19, this was not the focus of the application.  I do not consider the circumstances of COVID-19 in the community provides any support for the application.  There is presently no impediment to jury trials proceeding (cf the situation which pertained when Pentland was decided).
34. [34]
    I am not persuaded that it is in the interests of justice that a no jury order be made.  Having reached that conclusion, it is unnecessary to address the question  of “special reasons”.  The application is refused.