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Court of Criminal Appeal 22 March 2004

REGINA v. CAO

[2004] NSWCCA 61

Homicide
CRIMINAL LAW APPEAL AGAINST CONVICTION CERTIFICATE BY TRIAL JUDGE

Citation: Regina v Cao [2004] NSWCCA 61
Court: Court of Criminal Appeal, New South Wales
Date: 22 March 2004
Judge(s): Spigelman CJ, O'Keefe J, Greg James J

Background

The appellant was convicted of murder in the Supreme Court following the death of a woman who sustained a fatal penetrating head wound from a television antenna rod. The Crown's case was that the appellant struck the deceased on the side of the head with the antenna with sufficient force and intent to constitute murder.

The trial proceeded on competing hypotheses: the Crown contended the act was deliberate and intentional, while the appellant advanced alternative explanations, including that the antenna had rebounded accidentally or that the wound was self-inflicted. Expert evidence at trial was directed at refuting those alternative explanations.

The appellant appealed to the Court of Criminal Appeal, challenging the conviction on the ground that the jury's verdict was unreasonable and unsupported by the evidence, particularly with respect to the mental element required for murder.

  • Whether the jury's verdict of murder was unreasonable or could not be supported having regard to the evidence.
  • Whether the evidence was sufficient to establish, beyond reasonable doubt, that the appellant had the requisite intent for murder: that is, an intent to kill or to inflict grievous bodily harm.
  • Whether the Court of Criminal Appeal had power to substitute a conviction for manslaughter, or whether a new trial limited to manslaughter was the appropriate remedy.

Decision

The Court unanimously agreed that the appellant's deliberate act of striking the deceased with the antenna caused her death. The critical question was whether the evidence was capable of supporting the jury's finding of the mental element necessary for murder under s 18 of the Crimes Act 1900 (NSW), specifically an intent to kill or to cause grievous bodily harm.

Spigelman CJ identified the wound's unusual characteristics as central to this question. The antenna had penetrated only a short distance into the skull despite nothing impeding its further entry. The Crown's own expert evidence suggested the antenna was probably held close to its tip, which left open the possibility that wounding was intended but grievous bodily harm was not. His Honour found that the lies told by the appellant after the event carried significant weight on the question of whether he caused the death, but only minimal weight on the question of his intent.

Greg James J (with whom the other judges agreed on the outcome) found that, while the Crown's submissions on how the injury was inflicted were persuasive on the question of causation, the evidence did not support a finding beyond reasonable doubt that the appellant held the intent required for murder. The Court drew on the High Court's approach in M v The Queen (1994) 181 CLR 487, holding that where the appellate court itself holds a doubt on the evidence of intent, that doubt is one the jury ought to have held and the verdict cannot stand.

On remedy, the Court declined to simply substitute a manslaughter conviction. Greg James J observed that the objective dangerousness test for manslaughter is different in nature from the subjective intent test for murder, and that the relevant factual questions underlying manslaughter had not been determined by the jury. Accordingly, the appropriate order was a new trial limited to the charge of manslaughter.

Orders Made

  • The conviction and sentence for murder were quashed.
  • An acquittal on the murder charge was entered.
  • A new trial was ordered, limited to the charge of manslaughter.

Key Takeaways

  • A murder conviction requires proof beyond reasonable doubt of a subjective intent to kill or cause grievous bodily harm; the objective dangerousness standard applicable to manslaughter is a distinct and different test.
  • Where an appellate court itself holds a doubt about the sufficiency of evidence on the mental element of an offence, that doubt is one the jury ought to have held, and the verdict cannot stand as reasonable (applying M v The Queen (1994) 181 CLR 487).
  • Evidence that an accused told lies after a death may support a finding that the accused caused the death, but carries only minimal weight on the separate question of the accused's intent at the time of the act.
  • Unusual or ambiguous physical evidence (here, the limited penetration of the weapon despite no impediment to further entry) can leave open a hypothesis inconsistent with the intent required for murder, even where deliberate conduct causing death is established.
  • In dismissing a murder conviction, the Court of Criminal Appeal ordered a new trial limited to manslaughter rather than substituting a manslaughter conviction, because the factual questions underlying that lesser charge had not been resolved by the jury.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 18 (definition of murder)
- Criminal Appeal Act 1912 (NSW), s 8(1)

Cases
- M v The Queen (1994) 181 CLR 487
- Knight v The Queen (1992) 175 CLR 495
- R v Cutter (1997) 94 A Crim R 152; 143 ALR 498
- Spies v The Queen (1999-2000) 201 CLR 603
- Parker v The Queen (1997) 186 CLR 494
- King v The Queen (1986) 161 CLR 423
- Gipp v The Queen (1998) 194 CLR 106
- Chamberlain v The Queen (No 2) (1984) 153 CLR 521
- Briginshaw v Briginshaw (1938) 60 CLR 336
- Ratten v The Queen (1974) 131 CLR 510
- Morris v The Queen (1987) 163 CLR 454
- Dyers v The Queen (2002) 192 ALR 181
- Khouzame [2000] NSWCCA 505
- MFA v The Queen [2002] HCA 53