R v Koko

This case involved an appeal against conviction for murder. The appellant alleged that the trial judge had erred in failing to direct the jury that they had to be unanimous as to which acts of violence the appellant had committed, or which had caused the deceased’s death. The Court of Appeal unanimously dismissed the appeal, finding no error in the directions given.

Mullins P, Dalton and Flanagan JJA

4 November 2022

Background

The appellant was convicted of murdering a woman with whom he had been in a relationship. [3]. He had pled guilty to the offence of manslaughter, but that plea was not accepted by the Crown in full discharge of the indictment. [4]. The Crown’s case was that the deceased had been beaten to death by the appellant. [7]. On the night in question there was evidence of “four incidents of violence committed by the appellant on the deceased”. [7]. The evidence of a forensic pathologist, Dr Botterill, was that the cause of death was “the combined effects of blunt force head, chest, and abdominal injuries and alcohol intoxication”. [12].

The appellant’s appeal had two grounds, both of which concerned alleged misdirections to the jury by the trial judge. [18]. Flanagan JA (with whom Mullins P and Dalton JA agreed), gave reasons dismissing both grounds. [1]–[2], [30].

The first alleged error

The first alleged error was that the trial judge failed to direct the jury that they had to be unanimous as to which act/s of violence were committed by the appellant against the deceased. [18]. However, Flanagan JA considered that “[n]o principle of unanimity, in the circumstances of the present case, required the jury to be directed in the terms contended”. [22]. The appellant’s plea of guilty to manslaughter “constituted an admission that he had unlawfully killed the deceased” – that admission encompassed at least some of the injuries inflicted on the night in question. [25]. In light of the issues at trial, his Honour said that “the only requirement for unanimity was in relation to the element of intention”. [26]. This requirement was satisfied by the trial judge providing the following direction:

“The key legal point which I now direct you of is that you must be unanimous as to which acts either did or may have substantially contributed to death. Having determined that, you would then ask yourself whether you are satisfied beyond reasonable doubt that when the accused committed those acts he committed all of them intending to kill or do grievous bodily harm.” [26].

This direction therefore addressed “those acts which went to the jury’s considerations of the only relevant ‘essential ingredient’ for the count of murder”. [27]. Accordingly, this ground failed.

The second alleged error

The second alleged error was that the trial judge should have directed the jury that – if they could not be unanimous as to which acts caused the deceased’s death – then they must be unanimous “as to which of those acts may have caused the deceased’s death” (emphasis added). [18].

This ground was also unsuccessful. The direction given by his Honour (outlined above) ensured that the jury was unanimous as to which acts either did or may have substantially contributed to death. The direction required the jury to be unanimously satisfied that, for any act that did or may have contributed to death, that the appellant had the requisite intention. There was no error in this direction.

Accordingly, the appeal was dismissed. [30].

W Isdale