I have been sitting in the public gallery of the Supreme Court at a murder trial. The jury was out for four days deciding on two questions, the second of which was divided into two sub-questions.
For those who do not know, my elder son David died from a brain haemorrhage after being kicked in the head by a stranger. That was two years ago. But for the last two weeks, the accused faced the court on a charge of murder. He had tried to plea-bargain a verdict of manslaughter, but because of overwhelming evidence of the force of the kicks, captured on CCTV, the Police and Dept. of Public Prosecutions went ahead with a murder trial.
Footage showed the stranger walking up to David and his friend Sarah who were sitting on a doorstep in downtown Sydney. After talking to David for a short while, he suddenly stood up and kicked David in the head and upper body. The footage showed three kicks before the camera was masked by a passing bus, but he admitted to more and witnesses said there were at least six, up to nine.
After he kicked David, he walked away, but was tackled by a man who saw the kicking, and with the help of a bouncer working the door or a nearby night club, held him until police arrived.
David appeared not badly hurt and did not press charges, so the police let the man go. David was talking normally and walked normally according to paramedics who were called to check him out. He did have an obvious haematoma on the back of his head and complained that his jaw was not lining up properly.
Because there was a head injury, he was taken to hospital for examination, which would normally have included an MRI scan.
Unfortunately, there were six ambulances waiting with injured people, plus a full waiting room, so he was not given the MRI, but was triaged and returned to the waiting room to be given a thorough examination later.
Nurses who saw him missed vital clues. His level of alertness deteriorated as time passed, but there was a change of shift. New people coming on duty, although told of his condition, did not observe those changes and also thought his less compliant attitude, and his insistence that he be allowed to sleep, was due to intoxication.
In fairness, he was an alcoholic but as reported by the paramedics, he was not showing significant signs of intoxication when they checked him out and there was no reason to think intoxication would get worse with time.
So after three and three quarters of an hour of waiting, he left the hospital, taking a hospital blanket and walked across the road to a small park where he went to sleep. His body was discovered at about 2PM next day.
The only positive to come out of this was that, like the Gambler, he died in his sleep. His troubles are over.
Because the assailant was arrested on the spot, there was no question as to who kicked David, ultimately causing his death. However, for the murder charge to stick, he must have had an intention to ‘inflict really serious bodily harm’. The CCTV footage seemed to show intention with the severity of the kicks, and the jury decided that way.
The next question for the jury to consider was whether an underlying mental illness caused him to lose control or whether it was more likely alcohol, consumed during a night of drinking at five bars or more, plus smoking three cones that caused him to lose control.
The jury was confused and so was I. Summing up, the judge’s directions were so convoluted and confusing, the jury must have felt they needed to err on the side of caution. So on that question, they decided it was more likely an underlying mental illness that caused his loss of control, and therefore, he was guilty of manslaughter. Philosophically, I guess anyone who attacks a stranger with no provocation, but with intent to do serious harm, has to be insane at the time.
In a few weeks, a sentence will be handed down but whatever it is, that young man’s future is bleak. He will spend years in jail, those years when most people are setting up their futures. And when he comes out, he will be a different person. What that is up to him, but the prognosis in not good.
For the two weeks of the trial, I watched the accused and at times felt compassion for him. On that night, he made choices that resulted in a person dying and that cannot be undone. For his parents I feel even more compassion. I had to mop up a few tears when they approached me to express their sorrow and I was able to express my sympathy for them.
Except for the sadness that never ends when a child dies before you, my worrying for David is over. But for that young man's parents, it has a long way to run, and most likely can only get worse.
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