The Court: Supreme Court of Victoria
The Lawyer: Mike Brown
The Charges:
The Allegations:
Our client was charged with murder. This was a tragic case where a very young person died after a brief fight in a Chinatown laneway. It was alleged that our client had kicked or stomped on the head of the victim five times, causing severe injuries to the head, which later resulted in death. The fight was captured on CCTV from start to finish, except for a brief moment when the participants moved out of camera view into an alcove; a large number of witnesses were also present during the fight.
The fight initially started off as a one-on-one duel between two others. Our client was not a party. However, as the fight progressed, our client unfortunately became involved and subsequently carried out a nasty assault on the victim, which was clearly captured on CCTV camera.
The CCTV footage shows our client violently stomping on the victim’s head up to five times. This evidence alone makes for a robust case for the Crown. The Crown pathologist, after being shown the footage, opined that he was quite satisfied that those stomps caused the deceased’s fatal injuries.
This was a very difficult case from a defence point of view, given the clarity of this footage. Our client conceded identity, as well as having sent a number of unfriendly voice messages to the deceased in the days before the fight. Our client further acknowledged that the shoes found by police with the deceased’s blood on them were in fact the shoes our client wore when he kicked the deceased during the fight.
There was no question that our client had no lawful excuse for kicking the victim, and it was clear from the footage that those acts were voluntary. However, our client was not the only person who struck the victim during the fight, and as such, we needed to explore the possibility that acts committed by others during the fight may have caused the death.
Intent was the other issue here. For the Crown to make out murder, they had to be able to establish, on the evidence that our client possessed an intent to at least cause a very serious injury to the deceased. We maintained on behalf of our client that at no point in time did he possess such an intent, and that the evidence of eye-witnesses, once properly tested, should not establish intent in favour of the prosecution.
After having reviewed all available materials and taken detailed instructions, we knew that apart from thorough preparation, our office was relentless in requesting further disclosure – it was important to get extremely competent trial counsel involved early; someone who displays expert judgement and has significant experience. Our client was a foreign national in his early twenties without any criminal history, who was potentially facing a very long time in gaol if found guilty of murder.
There were two issues in dispute here – causation and intent.
Whilst intent was indeed an issue from the beginning, and continued to be the central issue in dispute, the causation argument was an extremely difficult one for the defence to make, given the severity of the footage and the report by the Crown pathologist. We engaged our own independent forensic pathologist to look at the evidence and quickly realised that we were pushing uphill with this argument. Although the victim did receive a number of blows to the head region from other people prior to being kicked by our client, it was evident both from the footage and from witness statements that those strikes were nowhere near as severe as the kicks or stomps carried out by our client which marked the end of the fight. The victim failed to get up from the ground after receiving those kicks and had to be carried away by friends. As such, we believed it was difficult to ultimately convince a jury that someone else was responsible for the death-causing injuries.
At Court:
Recognising this, we sought instructions and offered to plead guilty to a charge of manslaughter before the committal hearing commenced. Manslaughter carries a lesser term of imprisonment than the charge of murder does. The Crown rejected this offer and wanted to press on with the murder charge, given how confident they were in the strength of their case. This was nonetheless a positive move for us, which would ultimately benefit the client at the plea, should we succeed on a verdict of manslaughter.
We utilised the opportunity of the committal to explore the potential argument of causation. We explored with the Crown pathologist alternative explanations for how the deceased may have received the death-causing injuries. We were able to extract some important concessions from the pathologist, being that firstly, he could not rule out likely causes from the off-camera portion of the fight immediately before our client was seen kicking the deceased on the ground. Secondly, he opined that had the deceased been taken to the hospital immediately after the fight, there may have been a chance of survival.
Intent remained an issue in dispute. In our view, looking at the collective evidence of the witnesses given at the committal, there seemed to be an insufficient degree of animus between our client and the deceased to motivate the acts in question. However, we anticipated that the Crown might argue that the requisite intent could have been formed in the split-second moment when our client started stomping on the victim’s head.
We were hoping for a resolution to manslaughter at the committal stage, but the Crown prosecutor simply would not move, having formed a view already about the strength of their case. It was therefore all the more important that we got our plea offer on record early, before evidence was called.
Notwithstanding the lack of resolution, the committal was very productive from our perspective because it allowed us to get a good feel for the witnesses who would be called at trial.
Following the committal, our office made further attempts to resolve the matter, including participating in a formal case conference before a Judicial Registrar of the Supreme Court; however, the Crown prosecutor would not move and insisted on pressing ahead with the murder charge. In a serious case like this, with a very young person’s liberty and the best years of his life at stake, it was important that we did everything we could to achieve the best possible outcome for our client at each and every stage of the proceedings.
Before the trial commenced, one critical thing counsel had to carefully consider was whether to persist with the causation argument. A jury trial is very different in nature to a committal hearing, and there were very real risks to our client if we continued down the path of not accepting responsibility for the death. Especially in the face of such clear footage and expert opinion that the death-causing injuries were most likely inflicted by our client, an opinion that our own forensic pathologist did not disagree with. Consequently, after careful consideration and review of all the evidence, counsel made the forensic decision to no longer take issue with causation.
Ultimately, the sole issue for trial was whether the accused was guilty of murder or manslaughter based on what could be said about his intent.
Again, given the severity of the footage, there were real difficulties for the defence trying to argue a lack of murderous intent. In such a trial, every little thing counts, and defence counsel was well aware of the need to exclude anything that might be prejudicial to our client and to tone down, through careful cross-examination, any potentially harmful evidence that had not been excluded.
The Crown not only relied heavily on the footage but also sought to bring in pre-offence incriminating conduct as evidence of animosity between our client and the deceased in the days leading up to the fight.
There was little we could say about our client’s action as shown in the footage, except to concede at the outset that it was indeed a very nasty assault that brought about a most tragic outcome – and this was repeated in the defence counsel’s closing. In relation to all the surrounding evidence which the Crown argues had bearing on murderous intent, such as our client paying someone after the fight to delete the CCTV footage and sending threatening voice messages in the days prior to the fight, senior counsel for our client was able to expertly deal with each piece of prejudicial evidence led (or sought to be led) by the Crown.
In preparing to exclude the prejudicial post-offence conduct at pre-trial, counsel and instructor put in numerous hours in conference with the client to get a thorough understanding of the post-offence events and the culture of this particular group of youth. Counsel discovered that our client did not approach a third party with money to attempt to delete the CCTV footage. Rather, it was a third party who approached our client and stated that he had the ability to delete CCTV footage, when in fact he was not in any position to do so. It was purely a scam targeting our client and others involved in the fight. Counsel further argued that the best evidence the jury had was the footage itself, thus rendering this evidence of post-offence conduct not relevant and lacking probative value, whilst at the same time having serious ramifications for our client if admitted. In the end, we were able to fully exclude this evidence at pre-trial.
Our client admitted to having sent the deceased threatening voice messages a week before the incident. There was a witness who had also identified our client’s voice in those messages; these messages were played to the jury. This was not ideal for us, as a total of four voice messages were sent, and the contents of each message were far from friendly. When we asked our client about these messages, he was only able to recognise his voice but was otherwise unable to recall when or from where he had sent them. In dealing with this, our instructor (who was able to understand the foreign language being spoken in those messages) carefully and slowly replayed each message a dozen times in an attempt to locate anything that may be helpful to our case. Our client’s speech was slightly slurred at times, which was consistent with some degree of intoxication at the time he sent those voice messages. Furthermore, the recordings contained background noises of females laughing and chatting in what appeared to be a foreign language. These matters were then discussed in conference with both senior and junior counsel, and we drew the likely conclusion that the accused was at a bar or a karaoke venue when he sent those messages and was most likely intoxicated at the time.
This allowed counsel to effectively cross-examine the witness from whom the Crown led the evidence of these threatening messages. Having set up the foundation that this witness knew our client very well and was familiar with our client’s voice pattern, counsel asked the witness whether our client was drunk at the time of making those utterances, to which the witness replied, “obviously.”
Counsel was also able to adeptly handle a few prosecution witnesses who had elected to give new evidence from the stand that was either non-existent or wholly inconsistent with their witness statements. Counsel persisted with these witnesses in an unrelenting manner, which ultimately led to their evidence losing credibility.
The Outcome:
In closing, the Crown prosecutor accepted that, on the evidence, the accused did not possess an intent to kill, and instead relied on the argument that the accused intended to cause very serious injury to the deceased. The prosecutor took the jury through the footage frame by frame and said, “You don’t stomp on somebody in that fashion unless you are intending to cause really serious injury”.
In reply, our counsel effectively drew on references to numerous parts of the evidence that demonstrated against our client having an intention to cause a really serious injury, and the fact that there was hardly any evidence of a motive to injure (let alone really seriously injure) the deceased that night. Counsel further suggested to the jury that the aggression displayed by our client towards the deceased in the days leading up to the fight was pretty modest when one considered all the circumstances. As such, one could never reason that our client had such a pathological loathing for the deceased that he wanted to kill him or cause him really serious injury.
The jury deliberated for about a day and a half before reaching a verdict of manslaughter instead of murder. This was, in fact, the best possible outcome for the client and was indeed what we had been trying to achieve for him from the start. A murder charge carries a standard sentence of 25 years if found guilty, whereas the charge of manslaughter does not have a standard sentence.
The trial was thoroughly prepared; we engaged very experienced counsel and left no stone unturned when reviewing all the information we had to work with.
