Citation: R v Toma [1999] NSWCCA 350 revised - 29/11/99
Court: NSW Court of Criminal Appeal
Date: 22 November 1999
Judge(s): Grove J, James J, Dowd J
Background
The appellant was convicted by a jury of the murder of a man who was related by marriage to the appellant's wife. The offence arose from a family dispute in September 1996 at Fairfield. After a series of confrontations over several days, the deceased armed himself with a steering wheel lock, went to the back of the appellant's property, and challenged the appellant to fight. The appellant armed himself with multiple knives, a rock, and a table leg, jumped a fence into the area where the deceased was, and engaged in a fight. During the fight, the appellant stabbed the deceased twice; one wound penetrated the heart and caused death several days later.
The sentencing judge found that the Crown had not proved beyond reasonable doubt that the appellant intended to kill, but the jury found the appellant guilty of murder on the basis of an intention to inflict grievous bodily harm. The appellant was sentenced to eighteen years' penal servitude, with a minimum term of thirteen and a half years.
The appellant appealed both his conviction and, in the alternative, his sentence.
Legal Issues
- Whether the trial judge was required to direct the jury on causation by reference to reasonable foreseeability of a third party's intervention (where the knife may have entered the body partly due to movement by the deceased or others in the fight)
- Whether the trial judge's direction on provocation effectively removed that defence from the jury's consideration
- Whether the sentencing judge erred in excluding, under the Evidence Act, a social worker's report statement that the appellant was "full of remorse for his actions"
Decision
Grounds 1 and 2 (Causation directions):
The appellant's counsel argued that the trial judge should have directed the jury that, if they thought it reasonably possible the fatal stabbing resulted from the movement of a third party rather than a deliberate act of the appellant, they needed to be satisfied the appellant could reasonably have foreseen that intervention. The Court noted this argument drew on remarks by Brennan J in Royall v The Queen, but observed that other members of the High Court in that case doubted whether foreseeability was the right touchstone for causation directions.
More fundamentally, the Court held that no such direction was required on the facts. The trial judge had consistently and unequivocally identified the Crown's case as being that the appellant deliberately thrust a knife into the deceased's body. The jury were directed they could convict only if satisfied beyond reasonable doubt that this deliberate act caused death. On that framing, there was no "final fatal step" taken by another person, and no real causation issue requiring further directions.
Ground 5 (Provocation direction):
The appellant contended that a remark by the trial judge, to the effect that most people have lost their temper but not to the extent of being inspired to kill or inflict grievous bodily harm, had effectively withdrawn provocation from the jury. The Court rejected this. Read in context, the remark was made in the course of explaining the statutory requirement that the deceased's conduct be such as could have induced an ordinary person in the appellant's position to lose self-control to the required degree. The trial judge had provided careful, three-page directions on provocation overall, and the impugned remark did not eliminate the defence.
Sentence appeal (remorse evidence):
The sentencing judge excluded, under section 135 of the Evidence Act, a statement in a social worker's report that the appellant was "full of remorse for his actions." The Court upheld that ruling. James J held that the statement was opinion evidence, its basis was undisclosed, and the appellant himself gave no evidence of remorse at either trial or sentencing. James J also expressed the view that section 65(8) of the Evidence Act did not independently render the statement admissible, because there was no evidence the author of the report fell within the classes of persons deemed "not available" to give evidence under the Act. Leave to appeal against sentence was granted, but the appeal was dismissed.
Orders Made
- Appeal against conviction dismissed
- Leave to appeal against sentence granted
- Appeal against sentence dismissed
Key Takeaways
- A special causation direction addressing reasonable foreseeability of third-party intervention is not required where the Crown has clearly identified a single deliberate act by the accused as the act causing death, and the jury is directed to convict only if satisfied of that act beyond reasonable doubt.
- The Court of Criminal Appeal confirmed that, following Royall v The Queen, the foreseeability approach to causation expressed by Brennan J was not shared by the other members of the High Court, and courts should be cautious about importing foreseeability into causation directions unnecessarily.
- A trial judge's direction on provocation must convey the degree of loss of self-control required by statute; an illustrative remark that falls short of formally withdrawing the defence will not constitute misdirection where the overall directions are adequate.
- Opinion evidence that a defendant is "full of remorse" carries no probative value, and may be excluded under section 135 of the Evidence Act, where the basis for that opinion is not disclosed and the defendant has not given evidence at sentencing.
- Section 65 of the Evidence Act did not assist admissibility of the out-of-court representation where there was no evidence the maker of the statement was "not available" to give evidence within the meaning of the Act.
Legislation and Cases Referenced
Legislation
- Not stated
Cases
- Not stated