R v Koani

The appellant in this matter pleaded guilty to manslaughter on the basis of criminal negligence, but was convicted of murder, after killing his girlfriend with a shotgun at close range. He sought to appeal his conviction on the grounds that the trial judge erred in directing the jury they could consider an alternative basis for conviction of murder in the event they were not satisfied the shot was discharged by the appellant’s willed act; and further that her Honour erred in permitting the prosecution to re-examine a witness in order to prove a prior consistent statement. [1].

The evidence

The prosecution case alleged that the appellant shot the deceased in their home during an argument whilst handling a modified shot gun. [4]. Specifically, the prosecution particularised its case of murder as the appellant unlawfully killing the deceased by either:

1.(a) deliberately causing a gun to discharge; and

(b) as a result, the deceased suffered injuries which resulted in her death; or

2. breaching a duty required of him in that –

(a) he was in charge of and/or control of a dangerous thing; and

(b) he failed to use reasonable care and/or take reasonable precaution in relation to the use and/or management of the gun; and

(c) as a result of his failure the gun discharged; and

(d) the deceased suffered injuries which resulted in her death.

- and that in either scenario, he did so with intent to cause death or grievous bodily harm. [3].

The judge’s directions

In order to assist their deliberations the trial judge provided the jury with a flowchart clearly setting out the elements they needed to consider in relation to each of the matters they needed to consider. She also provided them with fulsome verbal instructions as to how she intended that they progress through that question trail. [23], [24].

Ground one

The appellant submitted that, according to the High Court’s approach in Murray v The Queen (2002) 211 CLR 193, by allowing the jury to use s 289 of the Criminal Code as a path to a murder conviction the trial judge erred, since that provision is directed to criminal negligence and cannot result in a conviction for murder under s 302(1)(a) (as murder under s 302(1)(a) is not an offence of negligence). [26]. It was argued that, consistent with Murray v The Queen (2002) 211 CLR 193, s 289 is only applicable once the jury has rejected the notion that the accused person has done a willed act with murderous intent, and then it is limited as a pathway to manslaughter by way of criminal negligence, as opposed to being “part of a composite consideration of murderous intent coupled with negligently causing death”. According to the appellant, the judge erred in specifically directing the jury that s 23(1)(a) was inapplicable on a criminal negligence path to murder: see Ugle v The Queen (2002) 211 CLR 171; [2000] WASCA 381. [27].

The appellant argued that the appropriate course was to set the conviction for murder aside and order a retrial, pointing to the facts arguably consistent with innocence on the murder charge, including that the front door was open at the time the deceased was shot and the events occurred in the company of others. [28].

In response, the respondent argued that the jury was entitled to be satisfied beyond reasonable doubt that, at the time the appellant caused the death, he intended to kill or do grievous bodily harm, given his actions in loading the gun, walking towards the deceased, aiming the gun and cocking it, together with his comment that he would shoot the deceased and the context of prior arguments. In addition, the respondent contended that it was unforeseeable that the legislative scheme under the Criminal Code was intended to allow someone to escape liability for murder where death resulted from a deliberately reckless act with an intention to kill or do grievous bodily harm: see R v Demirian [1989] VR 97, 115 and Royall v The Queen (1991) 172 CLR 378 [29].  Finally, the respondent argued that no requirement existed that s 23 must be considered if the jury found that the appellant acted under s 289 with the requisite intention. [29].

In rejecting the first ground (her Honour, the President, dissenting), the court by majority held that there indeed exists an alternative route to a finding of guilt for murder, which was appropriately depicted by the trial judge in the question trail as an alternative to a willed act carried out with an intention to cause death or grievous bodily harm. [81]. Their Honours, Gotterson JA and Atkinson J reasoned:

“Where a person who holds a murderous intent towards another picks up a gun to shoot the other person and, as a result of a failure on the person’s part to take reasonable care and precaution, the gun discharges, it would be incongruous that, because the gun discharged earlier and not in precisely the way the person intended, the person who kills is guilty of manslaughter and not murder. Such an outcome would be almost paradoxical and would fail sufficiently to take into account the fact that the person unlawfully killed, intending to kill.” [77].

As to the application of Murray v The Queen (2002) 211 CLR 193, whilst acknowledging that that decision concerned similar facts, their Honours noted that the case was ultimately determined on the basis of a failure by the trial judge to direct accurately as to the onus of proof, rendering additional remarks by the judges as obiter dicta; and the issue of whether s 289 can form a step in a pathway to a murder conviction appeared not to have been directly raised for the Court’s consideration. [78].

Given the above, the appeal was dismissed. [85].