Byrne v The Queen [2017] VSCA 253

1 On 22 June 2016, following a seven-day trial, the applicant was convicted of one charge of attempted murder. Following a plea hearing, on 28 September 2016, the applicant was sentenced to a term of imprisonment of 12 years, with a non-parole period of nine years.[1]

2 The applicant sought leave to appeal against his conviction on the sole ground that the verdict 'is unreasonable or cannot be supported having regard to the evidence'. At the conclusion of the hearing of the application for leave, we refused the application and said we would publish our reasons today. These are those reasons.

3 The Crown case at trial was that on the evening of 7 February 2015, the applicant stabbed Mr Steen Locke six times in the following circumstances.

4 At about 11:30 pm on 7 February 2015, Mr Locke was sitting with his friend, Ms Rochelle Jerard, on Brooks Jetty on the St Kilda foreshore. They were sitting on the edge of the jetty, feet dangling over the side, resting their arms on a lower horizontal railing. While Mr Locke and Ms Jerard were sitting on the jetty, they heard raised voices coming from a couple walking along the pier. The Crown case was that the couple arguing were the applicant and his then girlfriend, Ms Kaisha Mitchell.

5 Having heard the raised voices, Mr Locke turned around and then turned back. Very shortly after this, Mr Locke turned around again to see if Ms Mitchell was alright. The applicant said: 'What the fuck are you looking at?' The applicant was at that stage a few metres from Mr Locke and Ms Jerard. Mr Locke replied 'Nothing mate', and turned away, redirecting his attention to Ms Jerard.

6 The applicant then armed himself with a knife that he was carrying. The knife was approximately 20 centimetres in length with a 10 centimetre long blade. The applicant attacked Mr Locke, stabbing him six times. In attacking Mr Locke, the applicant stabbed him in the back of the head, the right shoulder, the right armpit, the left chest wall and twice to the left shoulder. Following the attack, the applicant ran off, leaving his knife imbedded in Mr Locke's side.

7 The applicant was charged with the attempted murder of Mr Locke (charge 1). He was also charged in the alternative with intentionally causing serious injury to Mr Locke (charge 2).

8 While the applicant did not give evidence at trial, the issues in the trial were the identity of Mr Locke's assailant and whether the jury could be satisfied that, when Mr Locke's assailant stabbed Mr Locke, Mr Locke's assailant intended to kill him. The applicant denied that he was Mr Locke's assailant, and contended that the Crown could not establish the requisite intention to kill in any event.

9 The jury found the applicant guilty of attempted murder. By their verdict, the jury were satisfied beyond reasonable doubt that the applicant was Mr Locke's assailant and that, when he stabbed Mr Locke, the applicant intended to kill Mr Locke.

10 At trial, the Crown called evidence from Mr Locke, Ms Jerard, Ms Mitchell, a number of police witnesses, a paramedic who attended Mr Locke after the stabbing (Mr Rowan Harman), a medical practitioner and forensic physician who examined relevant records and photographs of Mr Locke (Dr Angela Sungaila) and a taxi driver who the Crown alleged picked up the applicant and Ms Mitchell late on 7 February 2015 and after the stabbing.

11 Mr Locke and Ms Jerard gave evidence in conformity with the Crown case. Mr Locke gave evidence that within a few seconds of the verbal exchange on the pier he:

felt a few blows to the back of my - or the back of me, to the back of my head and body. I just - I didn't really know what was going on. I thought that I was being punched and I put my arm up to sort of, you know, block defend myself and I managed to grab onto the railing and got to my feet and still really didn't know what was going on and then I felt a blow on my side over here and looked down and there was a handle of a knife lodged in the side of me and the person run off down the jetty and, yeah, then I realised I'd been stabbed.

12 Ms Jerard's evidence was that after the verbal exchange, she and Mr Locke turned back to mind their own business. She then said:

For a few seconds it went back to complete normality of what we were doing and then next minute the guy was on top of Steen and then at that stage we didn't realise there was a knife involved.

Ms Jerard gave evidence that after the assailant ran off she focused on Mr Locke and saw a knife 'hanging out from the left side of his back'.

13 Mr Harman, the paramedic, gave evidence that when he arrived on the scene there was a woman holding one bloodstained cloth to the back of the neck, and another cloth to the left upper part of the chest, of a man he now knows to be Mr Locke. There was a large pool of blood on the ground directly beneath Mr Locke's chin and there was a stream of blood flowing from his chin onto the ground. Mr Harman described a 'serious constant blood loss' from a puncture wound to the base of Mr Locke's skull. Mr Harman also observed a knife protruding from the left armpit/chest region. The knife was 'quite loose in the skin and muscle' and 'very shallow into the wound and actually fell out onto the ground' while he was present.

14 Dr Sungaila was a forensic physician at the Victorian Institute of Forensic Medicine. She gave evidence of reviewing the relevant records and photographs relating to Mr Locke, for the purpose of expressing an opinion as a forensic physician. Dr Sungaila gave evidence that the stab wound to the chest resulted in a punctured lung. From her review of the records, she concluded that Mr Locke sustained six penetrating wounds and that the injuries that were life-threatening were the penetrating chest injury and the injury to the back of Mr Locke's head. She also said that the risk to Mr Locke's life would have been increased in the presence of an untreated pre-existing condition suffered by him, von Willebrand's disease. The remaining injuries were not life-threatening. In Dr Sungaila's opinion, they were either superficial or likely to cause scarring but should heal.

15 The evidence of the remaining Crown witnesses did not throw much light on the question of the applicant's intention when he stabbed Mr Locke. During the hearing of the application for leave to appeal, however, counsel for the applicant pointed to evidence of a note made by one of the police officers on the night in question to the effect that the officer had liaised with a medical practitioner regarding Mr Locke's condition and had made a note: 'Nonlife threatening will survive no problem.'

16 At the conclusion of the evidence at trial, the applicant called no evidence. Counsel for the applicant made a no case submission. After hearing argument, the judge rejected the no case submission.[2]

17 The applicant submitted that the jury's verdict was unreasonable and could not be supported having regard to the evidence[3] because, in a circumstantial case, as this case was, the jury could not exclude the hypothesis that when the applicant stabbed Mr Locke the applicant did so with an intent less than an intent to kill. That is, the jury could not exclude the hypothesis that the applicant stabbed Mr Locke with an intent to cause him only serious injury, or perhaps only really serious injury.

18 The applicant submitted that the evidence, taken at its highest, fell short of proof of the requisite intent to kill because:

• There was no motive to kill.
• The applicant and Mr Locke were not known to each other.
• Mr Locke did not personally know the offender. Axiomatically, there had been no history of animosity between Mr Locke and the offender.
• The offending was committed within a very brief time span. It was not prolonged.
• Mr Locke was conscious when the offender ran away.
• Mr Locke appears to have been on his feet when the offender ran away.
• The circumstances suggest that the attack lacked premeditation.

19 The applicant contended that the jury could not have been satisfied that he had an intent to kill unless the jury engaged in impermissible speculation. The alternative theory that the applicant had some lesser intention was, according to the applicant, reasonable, not fanciful and could not be excluded beyond reasonable doubt. In support of these submissions, the applicant relied upon Knight v The Queen,[4] M v The Queen,[5] R v Cengiz,[6] and R v Barnes.[7]

20 In his written case, the applicant sought to complain about the judge's rejection of his no case application. In oral argument, the applicant's counsel, however, accepted that the question for this Court was not the correctness of the no case submission, but rather whether the verdict was unreasonable or could not be supported having regard to the evidence. That concession was correctly made.[8]

21 The principles to be applied by an appellate court when it is contended that a jury's verdict is unreasonable or not supported by the evidence were recently summarised by Kyrou and Kaye JJA in Mejia v The Queen.[9] In Mejia, their Honours said:

The ground of appeal relied on is based on s 276(1)(a) of the Criminal Procedure Act 2009, namely, that the verdicts of the jury are unreasonable or cannot be supported having regard to the evidence. The principles, applicable to such a ground, have been outlined in a number of cases since the decision of the High Court in M v The Queen in 1994, including in R v Hillier, Libke v The Queen and SKA v The Queen. Most recently they were restated by the High Court in R v Baden-Clay.

In order to establish the ground, the applicant must demonstrate that it was not open to the jury to be satisfied beyond reasonable doubt of his guilt on the charge on which he was convicted. It is not sufficient merely to show that there was material which might have led the jury to entertain a reasonable doubt about the applicant's guilt. Rather, the critical question is whether, on the evidence, that the jury must (as distinct from might) have entertained a doubt about the guilt of the applicant. Ordinarily, in that respect, a doubt experienced by an appellate court may constitute a doubt which the jury ought also to have considered. However, it is important to bear in mind that the jury has the primary responsibility of determining guilt or innocence, and that in that respect the jury enjoys a substantial advantage in seeing and hearing the evidence as it is given in the atmosphere of the criminal trial, which is an advantage not shared by an appellate court. Where the Court of Appeal entertains a doubt about the guilt of the accused, the Court may only conclude that no miscarriage of justice has occurred where the jury's advantage, in seeing and hearing the evidence, is capable of resolving that doubt.[10]

22 There can be no doubt that in a circumstantial case a jury is required to exclude, beyond reasonable doubt, any and every hypothesis consistent with the accused's innocence. The jury could not have convicted the applicant unless it was satisfied beyond reasonable doubt that, when he stabbed Mr Locke, he intended to kill Mr Locke. If the jury thought that there was a reasonable possibility that, when the applicant stabbed Mr Locke, the applicant did not intend to kill then, as the jury was directed by the judge, the jury was bound to acquit the applicant.

23 The applicant stabbed Mr Locke from behind in the head and neck region and to the left side of the chest. Those two stab wounds were life-threatening. They were inflicted in a frenzy with four other stab wounds. The jury could have entertained a reasonable doubt about whether the applicant intended to kill Mr Locke. They were not, however, bound to entertain such a doubt. None of the authorities relied upon by the applicant alter that position or lead to the conclusion for which the applicant contended at trial, and again in this Court. Moreover, none of the factual matters relied upon by the applicant[11] (considered either separately or together) required the jury to acquit the applicant of the attempted murder charge.[12]

24 In the course of argument, counsel for the applicant sought to draw comparisons between the facts of other cases where an appellate court has concluded that a verdict was unsafe or unsatisfactory. Specifically, the applicant made reference to the facts in Knight, Cengiz and Barnes. None of those comparisons are of assistance. The question remained whether, on the whole of the evidence, the jury was bound to have a doubt about whether the applicant had the requisite intent when he attacked Mr Locke.

25 Having reviewed all of the evidence for ourselves, we concluded at the end of the applicant's submissions that the jury was entitled to be satisfied beyond reasonable doubt about the applicant's guilt of the charge of attempted murder. Thus, we refused the applicant's application for leave to appeal against his conviction.

[1] R v Byrne [2016] VSC 580. After being found guilty of attempted murder, the applicant pleaded guilty to an unrelated charge of being a prohibited person in possession of a firearm. For this unrelated offence, the judge sentenced the applicant to a term of imprisonment of 9 months and ordered that sentence to be served wholly concurrently with the sentence he imposed for the attempted murder.

[2] DPP v Byrne [No 3] [2016] VSC 346.

[3] See s 276(1)(a) of the Criminal Procedure Act 2009.

[4] [1992] HCA 56; (1992) 175 CLR 495 ('Knight').

[5] [1994] HCA 63; (1994) 181 CLR 487 ('M').

[6] [1998] 3 VR 720 ('Cengiz').

[7] [2008] VSC 66; (2008) 182 A Crim R 56 ('Barnes').

[8] DPP v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676, 687 [29].

[9] [2016] VSCA 296 ('Mejia').

[10] Ibid [139]-[140] (citations omitted).

[12] See R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308.