R v Moffatt 2000 Nswcca 174 PDF

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NEW SOUTH WALES CRIMINAL COURT OF APPEAL CITATION:

R v Moffatt [2000] NSWCCA 174 revised - 23/05/2000

FILE NUMBER(S): 60193/99 HEARING DATE(S):

10/05/2000

JUDGMENT DATE: 23/05/2000 PARTIES: Regina Anthony Moffatt JUDGMENT OF:

Wood CJ at CL Foster AJA Adams J

LOWER COURT JURISDICTION:

Supreme Court

LOWER COURT FILE NUMBER(S):

70092/96

LOWER COURT JUDICIAL OFFICER: Kirby J COUNSEL: Crown: M. Marien Appellant: A.M. Martin SOLICITORS: S.E. O'Connor Mark Lees & Assoc CATCHWORDS: CRIMINAL LAW - appeals - appeal against conviction - murder - trial by judge alone role of Court of Appeal - causation - whether death of deceased caused by act of appellant - where more than one possible cause of death - where constitutional defect admissibility of admissions - confabulation - reliability of admissions. LEGISLATION CITED: Criminal Appeal Act 1912 (NSW) s6(1) Criminal Procedure Act 1986 (NSW) s17 Crimes Act 1900 (NSW) s424A Evidence Act 1995 s 85, 85(2), 86, 90, 135, 136, 137, 142, 189(3) DECISION:

(1) Appeal dismissed (2) Conviction and sentence confirmed

JUDGMENT: IN THE COURT OF CRIMINAL APPEAL No. 60193/99

WOOD CJ at CL FOSTER AJJ ADAMS J TUESDAY 23 MAY 2000 Regina v Anthony Stuart MOFFATT The appellant was convicted of the offence of murder, following trial by judge alone. Both he and the deceased had consumed significant quantities of alcohol before becoming engaged in an argument in the course of which the appellant struck the deceased with a hammer and strangled him. The deceased was in poor health due to advanced cardiac disease and alcoholism. The issue in the trial was whether the death was attributable to the appellant, or to cardiac failure or acute alcohol toxicity independent of any act of the appellant. The appellant appealed against the conviction on the grounds that; (1) the oral admissions alleged to have been made by him and admissions contained in his ERISP should not have been admitted into evidence; (2) the evidence did not prove beyond reasonable doubt that the death of the deceased was caused by an act of the appellant. HELD (dismissing the appeal): Ground 1: admissions If evidence is led which suggests that the truth of an admission may be adversely affected, then the Crown must prove on the balance of probabilities that it is unlikely that this was the case. The evidence of the admissions had significant probative value and there was no unfairness to the appellant. Although the judge did not specifically refer to s85 and 90 of the Evidence Act, the argument as to admissibility having been pursued under SS 135 and 137 of the Act,

his findings addressed the issues arising under those sections as well.. Having regard to the expert evidence, the judge was correct in receiving the evidence. The appellant’s observations of the deceased were not unreliable because he lacked medical expertise, since they were of the kind a lay person could make. Nor were they unreliable because of the effects of the alcohol he had consumed. Esposito CCA (NSW) 20 November 1998 applied. Ground 2: causation The fact that a deceased has a constitutional defect which makes him more susceptible to death does not assist the defendant. It is incorrect to search for a principal cause of death. If contribution of the accused is present, it is irrelevant that there is more than one possible cause of death. Hayward (1908) 21 Cox CC 692, Murton (1862) 3F & F 492 (176 ER 221), Martyr (1962) Qd.R 398, Blaue (1975) 1 WLR 1441, Smithers (1977) 24 CCC (2d) 427, Mamote-Kulang (1964) 111 CLR 62, Butcher (1986) VR 43, McKinnon (1980) 2 NZLR 31, Pagett (1983) 76 CR App R 279 applied. Where the precise mechanism of death is “obscure”, the question is whether, approaching the matter in a common sense way, the appellant accelerated the death of the deceased, in that his actions provided a substantial contribution toward the death of the deceased. It was open to the judge to be satisfied beyond reasonable doubt, that the appellant had attacked the deceased and that this attack was the substantial cause of his death. Although the autopsy results offered several possibilities, considering all the evidence, the only reasonable hypothesis open was that found by the judge. Royall (1990) 172 CLR 378 applied, Smith (1959) 2 QB 35, Evans and Gardiner (No 2) (1976) VR, Bingapam (1975) 11 SASR 469, Hallett (1969) SASR 141, Osland (1998) 159 ALR 170, Hennigan (1971) 3 All ER 133, Cato (1976) 1 WLR 110, Smithers (1977) 34 CCC (2d) 427, Puckeridge 1999 HCA 68 considered.

IN THE COURT OF CRIMINAL APPEAL No. 60193/99 WOOD CJ at CL FOSTER AJA ADAMS J

TUESDAY 23 MAY 2000

Regina v Anthony Stuart MOFFATT JUDGMENT 1 WOOD CJ at CL: Following trial, by judge alone, the appellant was convicted of the offence of murder. The single most important issue at the trial, and at the appeal, was whether upon the evidence, the death of the deceased was shown, beyond reasonable doubt to have been caused by an act of the appellant. 2 An allied issue, of considerable relevance to this issue, was the admissibility of certain oral admissions alleged to have been made by the appellant when first spoken to by police, and of other admissions contained in his electronically recorded interview (ERISP), conducted later that morning. PRINCIPLES GOVERNING THIS APPEAL 3 The Court of Criminal Appeal is a court of error, and does not proceed by way of rehearing in a way that permits it to substitute its own findings of fact for those of the jury, or of the trial Judge where acting alone: Kyriakou (1987) 29 A Crim R 50, and Kurtic CCA (NSW) 26 February 1996 unreported. 4 Where, as in the present case, the relevant ground is that the verdict, or more accurately the finding on the question of guilt by the trial Judge (S 17 Criminal Procedure Act 1986) should be set aside upon the ground that it is unreasonable, or cannot be supported, having regard to the evidence (S 6(1) Criminal Appeal Act 1912), then it can only intervene if, after making its own independent assessment of the evidence, it concludes that it was not open for the trial judge to have been satisfied beyond reasonable doubt of the guilt of the appellant: M (1994) 181 CLR 487 at 493, and Jones (1997) 149 ALR 598. In that event error permitting the substitution of a verdict of acquittal is established: Coombe CCA (NSW) 24 April 1997 at pp 11 and 12. 5 What is required in this respect is attention to the matters identified in Fleming (1998) 158 ALR 379, Giam (1999) 104 A Crim R 416, and Gipp (1998) 194 CLR 106. THE FACTS 6 The deceased Richard James Fyfe, died during the early hours of 26 April 1996 in the home unit the appellant shared with Ronald Godfrey. During the afternoon of 25 April the appellant, Godfrey and a friend William Williams, had been drinking moselle mixed with water, and methylated spirits. They were joined by the deceased who contributed a cask of wine to the occasion. 7 At some stage during the drinking session, the deceased, upon the Crown case, became involved in an altercation with the appellant, in the course of which he

was struck several times about the chest with a hammer and manually strangled. Whether or not the prosecution was able to prove these matters depended upon the admissibility of the appellant’s ‘admissions’, to which I will return. 8 The others present at the unit claimed to have little awareness of what had occurred. Godfrey recalled the appellant becoming upset about something and smashing a mirror with his fist. Subsequently he fell asleep. When he awoke he saw the deceased lying on the floor. Williams claimed even less knowledge about the death of the deceased, it being his assertion that he had not even seen him arrive. He had gone to sleep drunk and was unaware of any argument. 9 Evidence was called from the occupants of an adjoining unit. Jodi Keane said that she heard yelling and thumping coming from the appellant’s unit followed later by the sound of glass smashing. She said that subsequently the appellant came to her door and said “You have to help me, I’ve killed someone” - although in cross examination she agreed that he may have said “they’ve killed someone”. When she went into the flat, the appellant said “I’m really sorry. I didn’t want yous (sic) to see this side of me. It shouldn’t have happened”. He added that the deceased had called him “a dog”. He indicated an intention to go out to buy some cigarettes after which he would hand himself in to police. Godfrey and Williams she said were drunk and laughing. 10 Kellie Findley similarly heard banging, smashing and yelling from the appellant’s unit. When the appellant came to the door of their unit, she recalled him saying that he thought that he had strangled a guy and that he was dead. When she went into his unit she saw the deceased lying on the floor. Williams and Godfrey were laughing. They and the appellant appeared very drunk. Joseph Both gave similar evidence concerning the conversation at the door to Jodi Keane’s unit. 11 Police attended the unit at 12.40am and found the deceased slumped on the floor, dead. Ambulance officer Wise who arrived at about 12.45am, and confirmed that the deceased was dead, noticed that he had a blue tinge about the face. At 12.55am the appellant was stopped on the Kingsway at Cronulla near the Cronulla Police Station, to which he was then taken. 12 Former Incremental Sergeant Hazlewood informed the appellant, at about 3.45 am, after making some preliminary inquiries, that he was under arrest for murder. After being cautioned, the appellant made the following admissions: “Well I killed him because he called me a dog and the two other old cunts had nothing to do with it. They’re both in their 60’s and I am 36. It was no problem. I am taking it on the chin. I killed him, I just choked him and snapped his neck”. 13 At about 4.45am, according to Sergeant Hazlewood, the appellant added, while standing in the dock:

“I hit him with a hammer to the chest and put my hands around his throat and killed him. The old guys were pissed and they don’t know jack shit. Well I’ll do a lot of time, years over this one”. These conversations were recorded in the officer’s notebook, but were not adopted by the appellant, either at the time when he was spoken to by Sergeant Hazlewood, or when he was interviewed by detectives later. The notebook was not offered to the appellant to read and sign nor was he asked to read it or adopt it. Sergeant Hazlewood was of the opinion that the appellant was “very intoxicated”. 14 The appellant participated in an ERISP commencing at 6.15 am on 26 April. He said, during this interview, that he, Godfrey and Williams had been drinking methylated spirits and water, and wine during the afternoon before being joined by the deceased. At some point, he said that he and the deceased argued because he was unable to show him his knife. He (the appellant) then began to smash up the place with a hammer. When the deceased called him a “dog” he grabbed him by the throat. He was pulled off by Godfrey and Williams. Some time later when the deceased repeated, “You’re still a mutt” he struck him, with the hammer, in the chest, and grabbed him around the throat. He heard the sound of cracking when he hit the deceased in the chest. While seizing him by the throat he heard another crack, after which he saw his eyes roll back and his tongue turn blue. The deceased, he said, was trying to push him off while this occurred. He checked for a pulse in his neck and placed a broken piece of mirror or glass, against his mouth to see if he was breathing. 15

He said later in the interview: “I hit him with the flat (of the hammer) …. Then I put me hands around his throat and I just didn’t let go until he stopped breathing. Looks like I went a little bit overboard, didn’t I?”

16

The appellant volunteered, in relation to his own tolerance to alcohol: “Like I can drink anything you know, 8 to 12 litres a day, you know, and that’s including about two litres of metho on top of that, that’s a lot of drinking, a big day”.

17 It was the assessment of Detective Sergeant Jones, who interviewed the appellant, that although he thought him to be “slightly affected” by alcohol, he appeared to be lucid and to be giving sensible answers to his questions. 18 At 8.00am, a blood sample was taken from the appellant. His blood alcohol reading was 0.180 grams of alcohol per 100 millilitres of blood. It was estimated by

Dr. Moynham and by Dr Judith Perl, a forensic pharmacologist, that at 6.15am, when the interview began, it would have been between 0.20 and 0.245 grams per 100 ml, and that at 12.30am, the estimated time of the death of the deceased, it would have been between 0.277 and 0.375 grams per 100 ml. 19 Dr. Moynham said that he expected a heavy drinker of alcohol and methylated spirits to develop a “fairly strong tolerance” for alcohol, and would be able to cope with a blood alcohol concentration that, for average persons, would be “embalming” them. 20 Dr. Wong, a forensic psychiatrist, interviewed the appellant on 9 September 1998, and took from him an account that was consistent with that given in the ERISP. He was unable to detect any gross impairment in the appellant’s cognitive functioning. Upon viewing the ERISP he concluded that it was unlikely that the appellant had been confabulating, or that he was other than fully aware of what he was being asked. His conclusions, in this regard, were related to the fact that he did not manifest any signs of intoxication, to the fact that much of what he said had been corroborated by independent evidence, and to the manner in which he corrected the police or asked for ambiguities in their questions to be clarified. In his opinion the appellant had developed a significant degree of tolerance to alcohol, an opinion shared by Dr. Judith Perl, who said that a person with a drinking pattern of the kind which was given by the appellant in the ERISP, would be “extremely tolerant” to alcohol. 21 Dr. Perl similarly examined the appellant’s ERISP and concluded that his answers were appropriate and responsive, indicating that his cognition was “not significantly impaired” by the alcohol he had consumed. Her evidence is sufficiently encapsulated in the following question and answer: “Q. Does the demeanour and manner of speaking of the accused during that interview enable you to express any view as to his cognitive ability at the time? A. I would have said his cognition was almost intact, very little impairment of his memory and certainly full - appeared to have full comprehension of the questions, gave appropriate answers, there didn't seem to be any obvious significant impairment of his coordination, so I would have put him as being slightly impaired.” 22 Dr. Strum, a forensic psychiatrist, interviewed the appellant on 5 September 1998. He was unable to detect any sign of disorientation or organic brain damage, but thought that the history of personality traits supplied was suggestive of frontal lobe syndrome. He thought the appellant to be an alcoholic who suffered from a borderline personality disorder with poor judgment and poor impulse control. He saw no reason why he should not have been able to choose to take part in the ERISP,

the viewing of which gave no indication of any abnormality or of cognitive impairment on his part. Dr. Strum later added that he could not have pretended to have been functioning normally if in fact he did not have that capacity. 23 His evidence was supplemented by that of a neuro-psychologist, Alexandria Walker, and by a psychologist, Anna Robilliard. The former concluded that the appellant had suffered mild cognitive impairment (particularly in aspects of frontal lobe function) because of his history of alcohol consumption. Ms Robilliard, who conducted the standard psychological tests, expressed the view that while the appellant displayed signs of severe disturbance across most areas of social and interpersonal behaviour, brain damage was not detected on those tests. 24 A certificate was also tendered as to the blood alcohol level of the deceased, which was determined as 0.482 grams per 100 millilitres of blood. The level of alcohol in his occular fluid (0.537 grams per 100ml) and in his urine (0.559 grams per 100 ml) was even higher. Dr Perl said that a reading of 0.482 grams per 100 ml, is likely to result in coma and, most likely in death, except in people who have an extreme tolerance to alcohol as a result of their heavy alcohol intake. 25 Post mortem examination of the deceased, by Dr. Lawrence, revealed that he had suffered fractures to two ribs. Blood was found in his lungs indicating to Dr. Lawrence that he was still alive when his ribs were fractured. Those injuries were consistent with him having been struck by a hammer and with the production of an audible cracking noise. An oblique fracture to the thyroid cartilage was found, along with bruising to the neck of the deceased. The fracture to the cartilage was not itself life threatening, and could have occurred immediately before, at the time of, or just after death, (ie during the peri mortem period). 26 Three factors contributing to death were noted by him, namely the “combined effects of compression of the neck, blunt force chest injury, and acute ethanol intoxication”. A fourth significant condition of the deceased was noted, namely that he had a seventy five percent occlusion of a coronary artery, which made him vulnerable to the risk of sudden death, without prior warning signs. 27 The description of the appellant seeing the tongue of the deceased turn blue and his eyes roll back, Dr. Lawrence said, was consistent with the description of a person “being strangled to the point of unconsciousness”. The presence of forceful movements, while being strangled, and the absence of breathing, or of a pulse, a short time later, was suggestive to him of a temporal link and causal nexus, between the neck compression and death. 28 A blue tongue, he conceded, could also be indicative of death from a heart attack or from alcohol poisoning, while the rolling back of the eyes could be a sign of a coma due to acute alcoholic intoxication. Although there were no signs of petechial haemorrhages, a common sign in cases of manual strangulation, that, he said, can occur where the compression to the neck is quick and forceful.

29 The normal path towards death from alcohol toxicity, Dr Lawrence said, involved a person becoming progressively more comatose, although that depended on how quickly the alcohol was ingested. 30 Dr. Lawrence agreed that, based purely on the autopsy findings, he could not attribute to any one of the likely causes identified, ie neck compression, acute alcohol toxicity, and cardiac arrest due either to atherosclerosis, or to blunt chest trauma, a higher degree of probability than another. 31 He said, however, that if the deceased had been arguing with the appellant, and had attempted to push him off as he was being strangled, then it would appear that he had not been in a comatose state due to alcoholic intoxication. He also said that sudden compression of the neck and the forceful application of blows to the chest of a person suffering a significant occlusion of a major coronary artery, could contribute to or accelerate a sudden death from that cardiac condition. 32 Dr. Byron Collins, a forensic pathologist, who was called by the defence, said that it was not possible to determine which of the potential causes of death identified by Dr. Lawrence was “the most likely”. They may have acted individually or in conjunction. Those observations, however, so it became clear from his evidence, were based solely on the “pathological findings”. 33 The thyroid cartilage fracture, which could be associated with a loud crack, he said was unusual in a case of manual strangulation, but not impossible. The absence of petechial haemorrhage, he also agreed, while common in cases of manual strangulation, was not so uncommon as to exclude that possibility. It was also possible, he said, that the neck injuries were due to a fall or were occasioned after death...