R v Neil Edward Norris Court Report PDF

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COURT REPORT MATTER:

R v Neil Edward Norris

COURT:

Supreme Court of Queensland

COURT ROOM:

Level 4, Court 6

JUDGE:

The Honourable Justice James D Henry

DATE:

11 September 2019, morning session.

JURISDICTION:

Criminal (Trial)

PROSECUTOR:

Philip McCarthy

COUNSEL FOR ACCUSED:

Unknown

WORD COUNT:

1648

I OVERVIEW OF FACTS Neil Edward Norris (‘the Accused’), an excavator operator under the employ of Ironjack Pty Ltd, has pleaded not guilty 1 to manslaughter,2 and the alternate charge of dangerous operation of a motor vehicle, 3 in relation to the death of his colleague, Mr Peter Tullett, in April 2017. The Crown has alleged that the Accused’s failure to ensure that the safety pin was attached to the arm of the excavator he was operating resulted in the 1.2 tonne shears detaching and striking Mr Tullet in the head; leading to his subsequent demise. 4 The Court heard of the Accused’s subsequent attempts to ‘cover-up’ his actions by reattaching the equipment with the assistance of Jack Blincos, the CEO of Ironjack Pty Ltd, and that he deceived authorities with a fabricated recount of events. 5 Nonetheless, the truth unravelled when the Accused confided in a colleague and later admitted to police he had repositioned the equipment due to ‘panic’. II EVIDENTIARY ISSUES

Although the matter originally commenced on 13 May 2019, the initial jury was discharged and the trial was aborted on 15 May 2019 to allow counsel to examine evidence not presented to the prosecution before trial. 6 Nonetheless, on 11 September 2019, Henry J continued ‘summing up’ the evidence heard before the court to date and directing the jury appropriately. 7 This report will predominantly consider the nexus between the competing aims of directing a jury with respect to the criminal standard of proof in matters which rest substantially on circumstantial evidence and maintaining an independent jury verdict.

1 Ellie Sibson, ‘Man accused of cover-up at scene of workmate’s death,’ Australian Broadcast Channel News (online) 13 May 2019 2 Criminal Code 1899 (Qld) s 303. 3 Ibid s 328A(4). 4 Warren Barnsley, ‘Court told of 'panicked cover-up' of Queensland worksite death,’ The Brisbane Times (online) 13 May 2019 5 Warren Barnsley, ‘Accused QLD killer asked ‘why not me?’ Australian Associated Press (online) 14 May 2019

6 Warren Barnsley, ‘Qld Construction Death Trial Abandoned’, Australian Associated Press (online) 15 May 2019 < https://www.northerndailyleader.com.au/story/6126476/qld-construction-death-trial-abandoned/> 7 Criminal Code 1899 (Qld) s 620(1).

A. BENCHBOOK DIRECTIONS 39, 50 AND THE EDWARDS DIRECTION Henry J commenced the morning by acknowledging the Prosecution’s reliance on the alleged lies and post-offence ‘cover-up’ by the Accused as reflecting his ‘guilty awareness’ that the safety pin was not inserted prior to the shear detaching.8 With respect to the Accused’s initial lies regarding the events that occurred, his honour gave an Edwards9 direction and quoted the several elements that must be satisfied for the lies to be used as evidence against the defendant. 10 His honour cautioned that, ‘Misusing lies historically has led to miscarriages of justice,’ which is reflective of the general reservation to apply an Edwards direction unless it is contended that a ‘lie’ evidences that, “the accused knew that the truth would implicate him in (the commission) of the offence”. 11 An Edwards direction was necessitated on the facts due to the real danger that the jury could wrongly use this evidence to reach a conclusion of guilt, as his honour directed that an innocent explanations could also exist as to why the Accused lied (such as due to panic). 12 If admitted as evidence, post-offence conduct also has the capability of demonstrating consciousness of guilt. 13 As such, in discussing the alleged post-offence actions of the Defendant, his honour was required to, ‘give an Edward’s type direction moulded to the facts of the case in question.’ 14 Although any departure from the Benchbook directions risks an appeal of a decision, the High Court has held that, ‘directions must be moulded to take proper account of what has happened in the trial.’15 As such, in relation to the purported ‘cover-up’ by the Accused, his honour directed the jury that in order to support an inference of consciousness of guilt they must find beyond a reasonable doubt that the Accused himself reinserted the pin after the incident occurred and did so as he was aware the pin was not inserted prior to the shears detaching. By constituting the above facts as ‘indispensable links in a chain’ of reasoning, each must be proven beyond a reasonable doubt to find an inference of guilt.’ 16 With respect to the Accused’s conduct, his honour admonished that ‘people do not

Supreme and District Courts of Queensland, Supreme and District Courts Benchbook No 39 – Lies Told by the Defendant (Consciousness of Guilt) March 2017; Edwards ((1993) 178 CLR 193) at 211, 363. 9 Edwards v The Queen (1992) 173 CLR 653; 363. 10 Supreme and District Courts of Queensland, Supreme and District Courts Benchbook No 39 – Lies Told by the Defendant (Consciousness of Guilt) March 2017; Edwards ((1993) 178 CLR 193) at 211, 363. 11 Edwards ((1993) 178 CLR 193) at 211; Zoneff v The Queen (2000) 200 CLR 234 at [17]. 12 Dhanhoa v The Queen (2003) 217 CLR 1. 13 R v Chang (2003) 7 VR 236. 14 Supreme and District Courts of Queensland, Supreme and District Courts Benchbook No 50 – Flight and other Post Offence Conduct as Demonstrating Consciousness of Guilt March 2017; R v SBB (2007) 175 A Crim R 449; R v Lennox [2007] QCA 383. 15 HML v The Queen (2008) 235 CLR 334, 386–7 (Hayne J). 16 Shepherd v The Queen (1990) 170 CLR 573.

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always act rationally and that conduct of this sort can often be explained in other ways.’17 It was furthered insinuated that the Accused may naturally have felt guilty for the consequence of what had occurred or may have been covering for another person; which is presumed to be his honour’s retrospective application of evidence. 18 Criticisms have been made regarding the ‘the direction of causality’ in applying the criminal standard of proof to an inference of consciousness of guilt, as it suggests that ‘[a] jury must conclude that the accused was guilty before it can use the telling of a lie by him as evidence against him’. 19 However, a lie told by a Defendant that exhibit’s consciousness of guilt can conversely be accepted without a conclusion of guilt beyond a reasonable doubt being drawn, provided it was not an ‘intermediate’ fact. 20 In this regard, the reasoning applied by the majority in Edwards may be applied with respect to lies as, ‘The jury do not have to conclude that the defendant is guilty beyond reasonable doubt in order to accept that a lie told by him exhibits a consciousness of guilt…[The jury] may accept that evidence without applying any standard of proof and conclude that, when they consider it together with the other evidence, the defendant is or is not guilty beyond reasonable doubt.” 21 It is noted that Henry J emphasised in his directions to the jury that with consideration to the cumulative circumstances a reasonable explanation could exist from both an innocent or guilty perspective as to why the Accused would lie about his actions. B. BENCHBOOK DIRECTION 48 AND THE SHEPHERD DIRECTION

As the guilt of the Accused rested substantially on circumstantial evidence, Henry J delivered the Shepherd direction early into the morning, 22 and outlined that the jury, ‘cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused.’ 23 His honour differentiated between evidence identified as ‘indispensable links in a chain’, which must be established beyond a reasonable doubt in finding an inference of guilt, and accumulated evidence forming ‘strands in a

Supreme and District Courts of Queensland, Supreme and District Courts Benchbook No 50 – Flight and other Post Offence Conduct as Demonstrating Consciousness of Guilt March 2017 18 Cardile v Nom Defendant [1978] QdR 132. 19 David Hamer, ‘'Hoist with his own petard'? Guilty lies and ironic inferences in criminal proof’ (2001) UQLRS 2(54) Current Legal Problems 377-413, p3.3; Edwards [1993] HCA 63, 209 (Deane, Dawson and Gaudron JJ). 20 Edwards (1992) 173 CLR 653; Gipp v The Queen (1998) 194 CLR 106 ; Shepherd (1990) 170 CLR 573. 21 Edwards (1992) 173 CLR 653; 107 ALR 190. 22 Shepherd (1990) 170 CLR 573 at 578. 23 Supreme and District Courts of Queensland, Supreme and District Courts Benchbook No 48 – Circumstantial Evidence March 2017; Barca v The Queen (1963) 110 CLR 234, 252. 17

cable’. 24 Providing the distinction between cable and chain inferences is vital in cases of critical circumstantial factual evidence, as in R v Owen it was held that, ‘an omission by the trial judge to direct the jury as to the "conceptual approach" mandated in Shepherd was a fundamental error which vitiates the verdict of the jury.’ 25 As such, his honour discussed various forms of evidence heard throughout the trial, including: oral testimony from Expert Witnesses discussing the poor maintenance of the excavator; documentary evidence of the requisite induction and safety manuals for excavator operation; oral evidence suggesting that the Accused was not the person to attach the shear to the excavator and that someone operated the excavator on the day of the incident prior to the accused; oral testimony from an employee of Ironjack Pty Ltd who had technical difficulties with the machine prior to the incident; and oral testimony from Mr Blincos, which predominantly involved claims of privilege due to his involvement in the ‘cover-up’ and his position within the company.26

C. BENCHBOOK DIRECTIONS 185, 93 AND 129

Towards the latter of the morning session, Henry J contrasted the elements for the charge of manslaughter 27 against the elements of murder.28 His honour accentuated that in order to convict the Accused of manslaughter, the jury must be satisfied beyond a reasonable doubt that, ‘the Accused killed the deceased and he did so unlawfully,’ regardless of whether he intended to do so.29 It is noted that while research has suggested jurors often have difficulties with the concept of ‘beyond reasonable doubt’,30 judges have been limited in scope for explaining the standard of proof without provoking appellate challenge. 31 Furthermore, in considering causation, his honour placed emphasis on the fact that it was not essential to find that the Accused’s actions were the sole contributing cause of death, however, it was necessary to find that, ‘the defendant’s acts must have a substantial or significant cause of

24 Shepherd (1990) 170 CLR 573, 579 and 585 (Dawson J). 25 R v Owen (1991) 56 SASR 397, 410-411 (Olsson J with whom Duggan J and Zelling AJ agreed). 26 Supreme and District Courts of Queensland, Supreme and District Courts Benchbook No 47 – Privelage against SelfIncrimination March 2017; Evidence Act 1977 (Qld) s10; R v Boyes (1861) 121 ER 730. 27 Supreme and District Courts of Queensland, Supreme and District Courts Benchbook No 185 –Manslaughter March 2017; Criminal Code 1899 (Qld) s 303. 28 Supreme and District Courts of Queensland, Supreme and District Courts Benchbook No 183 –Murder March 2017; Criminal Code 1899 (Qld) s 302(1)(a) 29 Supreme and District Courts of Queensland, Supreme and District Courts Benchbook No 185 –Manslaughter March 2017; Criminal Code 1899 (Qld) s 303. 30 NSW Bureau of Crime Statistics and Research, Trimboli, ‘Juror Understanding of Judicial Instructions in Criminal Trials’ (2008) 119 Crime and Justice Bulletin 1,4-6. 31 The Queen v Dookheea (2017) 91 ALJR 960, 965[16].

death or have contributed substantially to the death.’ 32 The difficulties with causation were discussed in the pivotal case of Royall, in which McHugh J noted, ‘Judicial and academic efforts to achieve a coherent theory of common law causation have not met with significant success…’33

His honour went on to discuss the Prosecution’s reliance upon the alleged breach of ‘duty to act with reasonable care and precaution’ by the accused34 amounting to criminal negligence. 35 In considering whether the accused omitted to perform the duty of care incumbent upon him, his honour again directed the jury with respect to causation, including consideration of the nature and extent of risk to life that a reasonable person would have reasonably foreseen. The last thing his honour deliberated before the court broke for lunch was that if the jury acquits the Accused of manslaughter, they must consider the alternate charge 36 of dangerous operation of a motor vehicle causing death. 37 Nonetheless, his honour prima facie highlighted that this charge has much the same causation as both manslaughter and negligence, therefore would be hard to find if manslaughter or criminal negligence were not found.

D. GENERAL OBSERVATIONS ON JUDICIAL DIRECTIONS

It is apparent that the recent proliferation of complex directions introduced to the Benchbook have restricted trial judges’ discretion in determining the way in which directions are to be delivered. 38 Increasing pressure has been mounted on judges as directions become more extensive and convoluted, particularly with respect to directing juror’s with no legal background.39 While Spigelman CJ outlined in Forbes 40 that, ‘A summing-up to a jury is an exercise in communication between judge and jury ... It is…desirable that a judge employs easily understood, unambiguous and non-technical language,’ challenges arise when striking a balance between jury comprehension, the legal requirements for a fair trial, and avoidance

32 Supreme and District Courts of Queensland, Supreme and District Courts Benchbook No 185 –Manslaughter March 2017; Royall v The Queen (1991) 172 CLR 378, 411, R v Sherrington [2001] QCA 10, 4. 33 Royall v The Queen (1991) 172 CLR 378, 448. 34 Criminal Code 1899 (Qld) s 289. 35 Criminal Code 1899 (Qld) s 281. 36 Supreme and District Courts of Queensland, Supreme and District Courts Benchbook No 33 – Alternative Charges March 2017. 37 Supreme and District Courts of Queensland, Supreme and District Courts Benchbook No 129 – Dangerous Operation of a Motor Vehicle March 2017. 38 Virginia Bell AC, ‘Jury Directions: The Struggle for Simplicity and Clarity’ Banco Court Lecture , Supreme Court of Queensland 20 September 2018 39 Queensland Law Reform Commission (QLRC), Review of Jury Directions, Discussion Paper No 67 (2009) 225, 60(4.45). 40 R v Forbes [2005] NSWCCA 377, 79 (Spigelman CJ).

of procedural appeals. Suggested solutions have included using plainer English, 41 enacting a comprehensive statute covering jury directions and warnings, 42 simplifying directions, 43 or, more controversially, using only judge-only trials. 44 Nonetheless, the trial at hand exemplified concerns surround the discourse of superfluous judicial directions and summary’s in matters with predominantly circumstantial evidence.

Ibid, 93. Victorian Law Reform Commission (VLRC), Jury Directions, Final Report 17 (2009), 4. 43 Queensland Law Reform Commission (QLRC), Review of Jury Directions, Discussion Paper No 67 (2009) 225, 95. 44 New South Wales Law Reform Commission (NLRC), Criminal Procedure: The Jury in a Criminal Trial Report No 48 (1986) 74, 6.28. 41 42...