Cutter v The Queen

(2) And further and in the alternative on the same date and at the same place [he] with intent to do some grievous bodily harm to Alasdair Dugald Kirwan unlawfully wounded Alasdair Dugald Kirwan.

He was tried before Pidgeon J sitting without a jury and convicted of attempting unlawfully to kill. His appeal to the Court of Criminal Appeal was dismissed by majority (Kennedy and Ipp JJ, Rowland J dissenting). By special leave an appeal was brought to this Court.

The offence of which the appellant was convicted is defined by s 283 of the Criminal Code WA the relevant parts of which read as follows:

is guilty of a crime, and is liable to imprisonment for life An attempt to kill under subs (1) is committed only if the offender intends by what he does to cause death. [1] The issue in this case is whether the evidence that was accepted by Pidgeon J was sufficient to establish that element beyond reasonable doubt. 1. Alister (1984) 154 CLR 404 at 421-423; Knight (1992) 175 CLR 495 at 501; 63 A Crim R 166 at 170-171; McGhee (1995) 183 CLR 82 at 85-86, 97, 106; 79 A Crim R 281 at 283-284, 292-293, 300; Haas [1964] Tas SR 1 at 27-29.

The relevant facts which Pidgeon J found established were as follows:

The accused person is a young man of aboriginal descent. He attended school at Meekatharra from grade 1 to Year 8. At about 9.20 pm on 5 August 1994, he came under the notice of a police patrol by reason of his approaching a police van and releasing persons confined in it. He did this by unbolting and opening the rear door. At least two of the four persons confined alighted. The van, when this occurred, was parked outside the Club Hotel Wiluna. The accused person, when he had done this, ran from the van and stood under the porch of the hotel. A member of the patrol, Constable Johnstone, approached the accused person and asked him why he undid the latch of the van. The accused replied "Fucking leave me alone". The constable then told the accused that he was under arrest. The accused tensed up. Constable Johnstone took him by one arm and Constable Ferguson, the other member of the patrol, took hold of the accused's other arm and, together, took him, by force, to the rear of the van. The accused person was resisting and was trying to break out of the hold. When they reached the rear of the van the accused dropped to the ground. Each constable took hold of an arm and leg and, in that manner, placed him in the van. The accused was saying continually "Leave me alone, leave me alone". Four others had also, at some stage, been confined in the van. These included some who had alighted when the accused had earlier opened the door. The van was driven to the police station. The van, on its arrival at the police station, was reversed up to a ramp leading to the cells. The four persons other than the accused alighted. Three of these were male and were taken to the male cells by Constable Ferguson. One was female and was taken to the female cells by the constable referred to in the indictment, Constable Kirwan. He had been working in the office and came out to assist when the van arrived.

Constable Johnstone remained at the van. He attempted to get the accused person out of it but could not do so because of the position the accused had placed himself in. He was seated long ways on a bench that ran along the right hand side of the van. The accused had his back hard against the mesh at the front of the enclosed area with at least one foot placed hard against the rear panel so that, with his sitting long ways, he was wedged in. He was being abusive and when Constable Johnstone attempted to remove him, the accused kicked with his right leg. His hands were behind his back. Constable Kirwan returned from escorting the female prisoner and moved next to Constable Johnstone to assist to remove the accused. They were both then standing on the ground at the rear of the van. They each grabbed a leg of the accused. Constable Kirwan, while doing this was leaning into the van. The accused then lunged forward and with a knife in his right hand stabbed Constable Kirwan in the throat They continued to drag the accused by the legs so that he ended on the ground outside the van. The accused was then on the ground on his back with the constables pinning his arms and shoulders to the ground. Constable Kirwan then noticed a knife in the accused's right hand. He also noticed blood coming from his throat and he realised that he had been stabbed The wound was a 1.5 cm vertical wound just lateral to the midline above the sternal notch. Fortunately only a minor artery was severed and the wound did not place the constable's life in danger. The penetration was very close to a major artery which, if severed would have had life threatening consequences. The knife was forcibly removed from the accused's hand. He was taken to a cell. A leather pouch for the knife was found in his right rear pocket. The knife was a large folding pocket knife. When removed from the accused the blade was fixed in the exposed position. The length of the blade, including its shaft is 95 mm. The length of the handle is 125 mm.

He was interviewed by a detective on 8 August. Detective Senior Constable Lague gave evidence including the following passage from the interview: I said, "Do you know why you're here?" He said, "Yeah, the other night."

I said, "That's right. We'd like to talk to you about what happened on Friday night. Can you tell us about it?" He said, "I only remember some."

I said, "How much had you had to drink?" He said, "Don't know how much; fair bit."

I said, "Do you remember what happened?" He said, "I remember stabbing the policeman."

I said, "Where did you stab him?" He said, "Up here," and indicated his upper chest area.

And indicated, what, on his own body? - On his own body, yes.

On his own body, the upper chest area. Yes? - I said, "Why did you stab him?" He said, "I was just angry and wanted to walk to the cells on my own."

I said, "What do you think might happen if you stab somebody in that area?" and I indicated a chest and throat area.

He said, "Kill them." I said, "Where did you have the knife?" He said, "Behind here," and indicated, on his own body, behind his back.

I said, "Why did you have it there?" He said, "I wanted to scare them to let them know to leave me alone."

I said, "Did you mean to stab the policeman?" He said, "Yeah, I wanted them to leave me alone."

I said, "When did you put the knife behind your back?" He said, "When we left the pub."

I said, "Why were you arrested?" He said, "I was playing up at the pub."

I said, "Why did you put the knife behind your back?" He said, "So I could scare them."

I said, "When did you open the knife up?" He said, "On the way here."

I said, "Where did you get the knife from?" He said, "My brother in Meeka." I said, "When was that?" He said, "Thursday night."

I said, "Why did you get the knife?" He said, "To cut up roos on the station and that."

I said, "On the way back here in the van you opened the knife and held it behind your back so you could stab the policemen when they took you out of the van. Is that right?" He said, "Yeah. I wanted to walk to the cells on my own." "I didn't want to be taken to the cells." "That's when I stabbed him." I said, "Why did you stab that policeman and not the other one?" He said, "He was closest."

I said, "Did you aim to stab him to the chest?" He said, "Anywhere up top," and again indicated with his hand, on his own body, his upper chest area.

Yes? - I said, "Did you think you could have killed him?" He said, "Maybe, yeah. They should have let me walk."

What, "They should let me walk?" - He said, "Maybe, yeah. They should have let me walk." He also said, "I thought later that I was sorry."

That he said, "I thought later that I was sorry?" - "And that I shouldn't have done it, but I did. That's it."

I said, "Do you dislike policemen?" He said, "Yes. They arrest me all the time, sometimes for nothing."

I said, "Did that have anything to do with why you stabbed him?" He said, "No."

Pidgeon J found that the appellant had drunk a considerable amount of intoxicating liquor and was affected to an extent by it. He concluded: "It made him more excitable and contributed to the behaviour I have outlined." The finding as to the consumption of alcoholic liquor is relevant to the existence of the specific intent that must be found before the offence of attempting unlawfully to kill is established. That is because s 28 of the Code provides, inter alia, that -

When an intention to cause a specific result is an element of an offence, intoxication whether complete or partial, may be regarded for the purpose of ascertaining whether such an intention in fact existed. Intoxication is relevant to the question whether an accused had the relevant specific intent in fact whether or not it establishes that he had lost the capacity to form an intent. [2] The common law is no different. [3] 1. Crump [1966] Qd R 340. 2. See Viro (1978) 141 CLR 88 at 112.

Pidgeon J was satisfied that the appellant had an intent to kill Kirwan when he stabbed him. Accordingly, he convicted the appellant of attempting to kill Constable Kirwan. On appeal, Ipp J with whom Kennedy J agreed in this respect, reviewed the evidence relating to intent and asked the question "whether [Pidgeon J] should have rejected, as a rational inference, the possibility that the applicant stabbed Constable Kirwan without an intent to kill him". His Honour cited Knight [4] as the authority for the proposition as he stated it. The test propounded by Mason CJ, Dawson and Toohey JJ in that case was whether the jury (the tribunal of fact), acting reasonably, could have rejected as a rational inference the possibility of the absence of an intent to kill. [5] In the same case, [6] Brennan and Gaudron JJ embraced the test which had been expressed by Gibbs, Stephen and Mason JJ in Barca [7] following Plomp : [8]

"To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be "the only rational inference that the circumstances would enable them to draw" ". Kennedy J accepted that test in the present case. Ipp J accepted the view, as Rowland J in dissent in the present case had pointed out, that the comments made by the [appellant] to the police concerning the possibility that his actions could have killed Constable Kirwan are capable of being construed as an acceptance by the [appellant], after the event, that the consequences of his conduct could have led to the death of the constable. We respectfully agree with this assessment. We also respectfully assent to the proposition which Ipp J expressed that the appellant intended to stab Constable Kirwan. The critical part of his Honour's judgment, however, is in these terms: The applicant lunged at a part of the officer's body that was obviously potentially fatally vulnerable. Although he did so while a struggle was going on, his hands and arms were entirely free at the time. He admittedly aimed to stab the officer in the upper chest area. That is indeed where the knife penetrated, namely on the bottom of the throat where it meets the middle of the top of the chest. On the evidence it could not be said that there was any accident in the knife penetrating at the particular place that it did. The fact that the knife was not used (or even held so that it was noticed by the officers) until the very moment that the constable leaned into the van and came within stabbing distance, reinforces the deliberateness of the applicant's conduct. It would be obvious to any person that the inflicting of a wound in that vicinity was likely to be fatal. In this case the wound was not life-threatening although it had the potential to endanger life. According to the medical evidence, the carotid artery was less than a half centimetre away from the wound and had that been lacerated it would have been very difficult to save the constable's life. I accept that the applicant may not have intended the knife to penetrate at the very place that it did, but he intended it to penetrate in that general area where it would be common knowledge that any stab wound was likely to be fatal.

According to Constable Kirwan the applicant lunged towards him with his knife and the applicant's head and arms came towards the officer as the applicant was delivering a blow which, according to the constable, was struck with "considerable force". The description of the applicant's body motion while the blow was struck underlines the effort made to get close enough to stab the officer successfully.

Accordingly, the evidence was that the applicant, by a forceful movement of his own body, executed a stabbing lunge, with a knife having a blade over 9 cms long, deliberately aimed at the upper chest and throat (penetrating the base of the throat) and which was felt by the recipient to have been received with considerable force. With what intention would such a calculated blow be struck? Plainly the inference is open that its purpose was to kill. Further, in my view, it could not reasonably be inferred that the intention was merely to wound; the forceful lunging at the police officer with the large knife while aiming at the area at the upper chest and base of the throat was in my view not consistent with an intention to wound, or even a state of mind which may be described as not caring whether death or mere wounding would result. The prospect of death resulting from such conduct was so obviously probable that once the conduct was proved to have been deliberate, it precluded any reasonably possible inference other than an intent to kill. (Italics added.)

1. (1992) 175 CLR 495. 2. Knight at 503, 505; 172, 173. 3. Knight at 509; 177. 4. (1975) 133 CLR 82 at 104. 5. (1963) 110 CLR 234 at 252.

With great respect, although the deliberation of the stabbing motion with the knife towards the upper portion of Kirwan's body is a fact which can and does support an inference of an intent to kill, and although the likelihood of inflicting a fatal wound or the probability of death resulting from such a deliberate stabbing might be obvious to a reasonable person taking an objective view of what happened, the surrounding circumstances must be considered before excluding the possibility that the appellant inflicted the wound without an actual intent to kill Kirwan. A result of the stabbing that would be "obvious to any person" or "common knowledge" or "obviously probable" might not have been appreciated by the appellant, much less desired, having regard to his state of mind at the time.

The appellant's anger, his partial intoxication and the highly tense circumstances of his arrest certainly bear testimony to a state of mind that was passionately antipathetic to the police. His outrage at being forcibly manhandled into the van followed by the attempt to extract him from the van suggest an intention to resist the force being applied to him with whatever means he had at his disposal and to surprise his captors by the production and wielding of the knife. But the emotion of the occasion, heightened by the consumption of alcohol, the physical force that was being used both by the appellant and the police in and before the attempt to remove the appellant from the van and the manner in which he struck at Constable Kirwan as soon as he leant in the door of the van raise the possibility that the appellant, in resisting his removal from the van, stabbed Constable Kirwan blindly in the portion of his body closest to him intending to resist the police and to wound Constable Kirwan but not necessarily intending to kill him. It is one thing to fight and wound and to resist the application of physical force that is resented; it is another to intend to take the life of one of those who is seen as applying the resented force.

The circumstances in the present case cannot, in our respectful opinion, exclude the possibility that Kirwan was stabbed in anger and with aggression but not with an intent to take his life.

For that reason, though the question is essentially one of fact, we were of the opinion that the appeal should be allowed and consequential orders made substituting a conviction for unlawful wounding. The maximum sentence prescribed for that offence was three years imprisonment. Having regard to the three months which the appellant had spent in custody prior to the sentence being imposed by Pidgeon J and the other circumstances of the case, the court thought it right to impose a sentence of imprisonment for a period of two years and nine months, the appellant being eligible for parole. The appellant and respondent agreed in this course so as to avoid the need to remit the matter of sentence to the Court of Criminal Appeal.

I was of the opinion that this appeal should have been dismissed. My reasons were in general agreement with those of Kirby J.

Those comprising the majority of the Court of Criminal Appeal (Kennedy and Ipp JJ) applied the reasoning in Knight, [9] as they were bound to do. Ipp J stated the issue in the following terms:

The question, on these facts, is whether the learned trial Judge should have rejected, as a rational inference, the possibility that the applicant stabbed Constable Kirwan without an intent to kill. [10] However, contrary to the majority decision, it followed from the application of that reasoning that the trial judge was incorrect in his conclusion that the "only inference open on [the] facts is that the accused person at the time of the stabbing intended to kill the constable". In particular, the circumstances were such as not to exclude the possibility that the appellant stabbed Constable Kirwan in anger but without an intent to take his life. 1. (1992) 175 CLR 495; 63 A Crim R 166. 2. Knight at 503; 172.

For these reasons, I concluded that the appeal should be allowed and that orders be made as detailed by Brennan CJ and Dawson J.

This appeal from the Court of Criminal Appeal of Western Australia [11] involved a challenge to the conviction of Mr Clifton Cutter (the appellant) upon a charge under s 283(1) of the Criminal Code WA (the Code) [12] of attempting to kill a named person. The challenge suggested that the conviction was unsafe and unsatisfactory. It was argued that the primary judge [13] and the majority in the Court of Criminal Appeal [14] had effectively adopted an objective test when deriving from the evidence an inference that the appellant had intended to kill his victim. [15] It was submitted that the primary judge and the majority had erred in failing to find that an inference or hypothesis consistent with the appellant's innocence of the charge was open on the evidence.

1. Cutter (unreported, Court of Criminal Appeal, WA, CCA 116/95, 17 January 1996). 2. The appellant was alternatively charged under s 294(1) of the Code with intent to do grievous bodily harm. 3. Pidgeon J. 4. Kennedy and Ipp JJ; Rowland J dissenting. 5. See Alister (1984) 154 CLR 404 at 421-423; Knight (1992) 175 CLR 495 at 501; 63 A Crim R 166 at 170-171; McGhee (1995) 183 CLR 82 at 85-86. Cf Haas [1964] Tas SR 1 at 27-29.

Special leave to appeal to this Court having been granted, the court, after the hearing of the appeal, [16] ordered that the appeal be upheld and that the orders of the Court of Criminal Appeal be set aside. In lieu of those orders, the court decided that the conviction entered should be set aside and a conviction for unlawful wounding substituted. [17] The appellant was then resentenced appropriately, with the consequence that he was entitled to immediate release to parole.

Although a majority of the court favoured the making of the foregoing orders, my own opinion was that the appeal should have been dismissed. I now state my reasons for that opinion.

The relevant facts were undisputed. The appellant was arrested on the evening of 5 August 1994 at a hotel in Wiluna in Western Australia. His arrest followed his action in undoing a latch on the back of a police van into which four people had earlier been placed following a disturbance. When approached by police the appellant demanded to be left alone. However, he was forcibly placed in the police van with the four other persons and driven to the police station at Wiluna.

On arrival at the station, the other occupants of the police van voluntarily alighted. The appellant refused to do so. He attempted to wedge himself against a wire grill in the enclosed back section of the van: his back being against the grill near the driver's compartment and one foot against the panel at the rear of the van. It was dark inside the compartment. It can be inferred that the appellant knew that he would be required by police to proceed from the van into the police station, there to be charged. However, he declined to move and evidenced great agitation. He was abusive, repeating his demand to be left alone. The police gained the impression that the appellant was affected by the consumption of alcohol, although not drunk. They were not aware that the appellant had on his person a folding pocket-knife. It was accepted that he had the knife on him for cutting up kangaroos. He did not show the blade to the police before he struck. However, during the journey to the police station the appellant had opened the knife, thus revealing the blade.

When the appellant would not get out of the police van, two officers began pulling his legs. The appellant was eventually removed from the van in this way and held in position on the ground to which he had fallen. One of the officers, Constable A D Kirwan, noticed for the first time that blood was coming from near his throat. He realised that he had been stabbed. He saw the knife in the appellant's right hand. It was not contested that the appellant inflicted a stab wound upon Constable Kirwan. Nor was it disputed that this had occurred as the constable was leaning into the darkened interior of the police van, endeavouring to remove the appellant from it. The appellant had made no threats nor given any warning to Constable Kirwan before effecting the stab wound. He simply lunged forward from his position at the rear of the van. In doing so he inflicted a 1.5 cm deep vertical wound which was described as running up and down rather than horizontally.

The blade entered Constable Kirwan's upper chest. A medical practitioner described the resulting wound as on "predominantly the left side of the neck". It was stated, in the event, to have been non life-threatening. However, in his evidence, the medical witness went on to say that "the nature of the wounding was such that it had the potential to endanger life". This was explained by reference to the fact that less than half a centimetre from the point of entry was the carotid artery which is the main artery from the heart supplying blood to the brain. Had this been punctured by the stabbing it could have caused Constable Kirwan's death or at least exposed him to a serious risk of death.

Although Constable Kirwan did not at first realise that he had been stabbed, he certainly felt a blow inflicted upon him. He described it as being one occasioned with "considerable force".

The appellant gave no evidence at his trial. However, three days after the foregoing incident he had been interviewed by police. His record of interview was admitted into evidence. No challenge was made to its admissibility. Deleting the descriptive words used as the interview was read onto the record at the trial, it was in the following terms:

Detective: When did you start and finish [school]? Appellant: From Grade 1 to Year 8. Detective: Do you know why you're here? Appellant: Yeah, the other night. Detective: That's right. We would like to talk to you about what happened on Friday night. Can you tell us about it? Appellant: I only remember some. Detective: Were you drunk? Appellant: Yeah, a bit. Detective: How much had you had to drink? Appellant: Don't know how much - a fair bit. Detective: Do you remember what happened? Appellant: I remember stabbing the policeman. Detective: Where did you stab him? Appellant: Up here (indicating his upper chest area). Detective: Why did you stab him? Appellant: I was just angry and wanted to walk to the cells on my own. Detective: What do you think might happen if you stab somebody in that area? (Indicating chest and throat area.) Appellant: Kill them. Detective: Where did you have the knife? Appellant: Behind here (indicating behind his back). Detective: Why did you have it there? Appellant: I wanted to scare them - to let them know to leave me alone. Detective: Did you mean to stab the policeman? Appellant: Yeah I wanted them to leave me alone. Detective: When did you put the knife behind your back? Appellant: When we left the pub. Detective: Why were you arrested? Appellant: I was playing up at the pub. Detective: Why did you put the knife behind your back? Appellant: So I could scare them. Detective: When did you open up the knife? Appellant: On the way here. Detective: Where did you get the knife from? Appellant: My brother in Meeka. Detective: When was that? Appellant: Thursday night. Detective: Why did you get the knife? Appellant: To cut up roos on the station and that. Detective: On the way back here in the van you opened the knife and held it behind your back so you could stab the policemen when they took you out of the van. Is that right? Appellant: Yeah, I wanted to walk to the cells on my own. I didn't want to be taken to the cells, that's when I stabbed him. Detective: Why did you stab that policeman and not the other one? Appellant: He was closest. Detective: Did you aim to stab him in the chest? Appellant: Anywhere up top (indicating his upper chest area). Detective: Did you think you could have killed him? Appellant: Maybe, yeah. They should have let me walk. I thought later that I was sorry and that I shouldn't have done it, but I did. That's it.

Submissions were put to the Court of Criminal Appeal, and repeated before this Court, to the effect that care should be taken in the use of such a record of interview. The appellant is an Aboriginal Australian. Linguistic and cultural difficulties of conducting interviews with Aboriginals are well documented. [18] They have been recognised by the courts. [19] On the other hand, as appears from the evidence, the appellant had adequate school education. His command of the English language as recorded in the interview appears sufficient. If his answers are laconic, they do not appear to be more so than most records of interview recorded by handwritten notes - a procedure which tends to encourage brevity of recorded expression.

1. D Mildren, "Redressing the Imbalance Against Aboriginals in the Criminal Justice System" (1997) 21 Criminal Law Journal 7 . 2. Anunga (1976) 11 ALR 412; Gudabi (1984) 1 FCR 187 at 194-195; 12 A Crim R 70 at 76-77; Weetra (1993) 93 NTR 8 at 11.

More significant was the criticism of the two passages in the record which are emphasised. Upon the basis of the tense used in the question in the first passage ("What do you think might happen?") it was submitted, and accepted below, that this could have called forth a reconstruction after the event of what the appellant thought at the time of the interview rather than a statement of what he had intended at the time of the stabbing. The second passage is more equivocal because the question is expressed in the past tense. The primary judge did not reject this evidence. He simply indicated that he would have to weigh the answers given against the possibility that they represented rationalisation ex post.

There might be some merit in the suggestion that the subtle distinction in the use of the past tense could have escaped the appellant's notice. However that may be, the particular admissions, if that they were, stated little more than the obvious. They do not appear to have carried much weight either at trial or in the Court of Criminal Appeal.

The appellant elected to be tried by judge alone. [20] It was in this way that Pidgeon J became the trier of fact as well as of law. The trial (which was brief) involved virtually nothing more than the oral evidence of Constable Kirwan, three other police officers and the medical practitioner who attended to the constable's wound. Pidgeon J made the findings of fact set out in the majority reasons. He recognised that, before convicting the appellant of the charge under s 283(1) of the Code, he had to be satisfied beyond reasonable doubt that at the time he had stabbed Constable Kirwan the appellant had the intention to kill him. [21] He recorded that the defence "saw the essential question as being one of intent" and had submitted that "the inference open is that the accused was acting in an uncontrolled manner without any regard to the consequences". [22]

1. The Code, s 615A. 2. Cutter (unreported, Supreme Court, WA, 15 June 1995), pp 3-4. 3. Cutter (1995), p 3.

Although he did not cite the applicable authority of this Court, [23] Pidgeon J's statement of the issues, of the manner in which the trial had to be conducted and the findings that were required as to the appellant's intention, all demonstrate that he addressed himself to the appropriate questions. He took the state of the appellant's intoxication into account, recognising that this was required by the terms of the Code. [24] He expressed himself to be satisfied beyond reasonable doubt that, while in the van travelling to the police station, the appellant had opened the knife and "at that stage, he formed an intention to stab one of the police officers when the opportunity arose". [25] The formation of that intention could scarcely be contested in light of the objective facts.

1. Such as Peacock (1911) 13 CLR 619 at 634; Plomp (1963) 110 CLR 234 at 252; Barca (1975) 133 CLR 82 at 104; Shepherd (1990) 170 CLR 573 at 578; 51 A Crim R 181 at 183-184; Knight at 502; 171. 2. The Code, s 28. 3. Cutter (1995), p 6.

Pidgeon J then noted the argument that the dark interior of the van and the struggle with police officers holding his legs, combined with intoxication, would have made it difficult for the appellant to aim a blow with precision. In response to the suggestion that in the circumstances it was a "coincidence that the penetration was in the region of a vital area" [26] his Honour concluded: [27]

The position of the wound, as shown in exhibit 2, being immediately above the notch of the sternum and being in the vertical plane is a very strong indication of a well aimed blow. The area must be regarded as a vital area and I consider the accused was aware of this. I have considered the position of the wound in conjunction with the answers given by the accused which I have set out. I find it compelling that the accused person aimed at the place where the knife penetrated. He aimed a large knife at a vital area. The only inference I find open on those facts is that the accused person at the time of the stabbing intended to kill the constable. 1. Cutter (1995), p 6. 2. Cutter (1995), pp 6-7.

Following his conviction, the appellant was sentenced to a term of imprisonment of nine years nine months. This sentence took into account the three months which he had spent in custody awaiting trial. The maximum punishment provided by law upon conviction of the offence is life imprisonment. [28]

In the Court of Criminal Appeal, [29] Kennedy J could find no error in the trial judge's approach. He agreed with Ipp J that it was open to the trial judge to find beyond reasonable doubt that the appellant intended to kill the constable. Ipp J posed the question whether "it was reasonably open to infer that the applicant stabbed Constable Kirwan without an intent to kill him". [30] For his part, he was prepared to disregard the appellant's statement to police. He confined himself to the "essential question", namely "what inferences are to be drawn from the fact that the applicant intended to stab the officer, and did so at the time, in the manner and in the place in question". [31]

1. Cutter (1996). 2. Cutter (1996), p 4. 3. Cutter (1996), p 4.

Ipp J pointed to the evidence which showed that the appellant had "lunged at a part of the officer's body that was obviously potentially fatally vulnerable". [32] By his admission the appellant certainly aimed to stab his victim in the upper chest area. During the struggle his hands and arms were entirely free (unlike those of the constables). The site of the penetration of the wound at the base of the throat was such as to be "obvious to any person that the inflicting of a wound in that vicinity was likely to be fatal". [33] The blow was struck with "considerable force". This fact and the depth of the wound contradicted a suggestion that the appellant was attempting to threaten the constable or to "nick or prick" his body. The description of the appellant's body motion given in evidence underlined "the effort made to get close enough to stab the officer successfully". Constable Kirwan had given evidence that he felt that he had been struck with something with considerable force in "a downward action from quite high". The medical expert found that the knife had entered the body more or less at a right angle, being horizontal to the body with the blade in a vertical plane at an angle of some 30 degrees to the horizontal. This tended to confirm the constable's impression of how the blow had been inflicted.

With what intention would such a calculated blow be struck? Plainly the inference is open that its purpose was to kill. Further, in my view, it could not reasonably be inferred that the intention was merely to wound; the forceful lunging at the police officer with the large knife while aiming at the area at the upper chest and base of the throat was in my view not consistent with an intention to wound, or even a state of mind which may be described as not caring whether death or mere wounding would result. The prospect of death resulting from such conduct was so obviously probable that once the conduct was proved to have been deliberate, it precluded any reasonably possible inference other than an intent to kill. 1. Cutter (1996), pp 5-6.

Rowland J accepted that the appellant had intended to stab the constable. On the other hand, he concluded that the inference could quite properly and reasonably be drawn that the appellant intended no more than to wound him. Because that was an inference open on the evidence, the conviction of an attempt to kill was unsafe and unsatisfactory. A verdict of unlawful wounding was appropriate and should be substituted.

The Court of Criminal Appeal therefore granted the appellant leave to appeal but, by majority, dismissed his appeal. It is from that decision, and by special leave, that the appeal was brought to this Court.

As with the evidence, there was no real dispute either in this Court, or in the courts below, about the governing principles. They fall into two categories. The first category concerns those principles which govern the trier of fact in drawing inferences as to the intention of an accused person. The second concerns the principles governing an appellate court (including this Court) in deciding an appeal such as the present.

As to the rules governing the determination of the intention of an accused person, it was not contested that the Crown bore the onus of establishing beyond reasonable doubt that the appellant intended to kill the constable when he stabbed him. Although the English courts, for a time, pursued a flirtation with a doctrine of presumed intention - such that an accused person was taken to intend the natural and probable consequences of his or her acts [35] - that approach was rejected by this Court. [36] It insisted that the inquiry must be addressed to the so-called "subjective" state of mind of the accused rather than the "objective" state of intention which the law attributed to the accused upon the basis of the objective facts. [37] The foundation for the rule upheld by this Court is the fundamental principle that, statutory exceptions apart, intention must go with the act in order to constitute the crime.

1. DPP v Smith [1961] AC 290 at 327; (1960) 44 Cr App R 261 at 282-283. See later Criminal Justice Act 1967 UK, s 8; Hyam v DPP [1975] AC 55 at 65, 75, 77, 82, 96-97; (1974) 59 Cr App R 91 at 94, 102, 103-104, 107, 117-118; Moloney [1985] AC 905 at 927-929; (1985) 81 Cr App R 93 at 107-109. 2. Parker (1963) 111 CLR 610 at 632-633. This principle is accepted by the courts in Western Australia. See, eg, I (A Child) (1992) 15 MVR 185 at 190, per White J. 3. Parker (1963) 111 CLR 610 at 648, per Windeyer J.

Where, as in the case of s 283(1) of the Code, intention is an element of the offence, there must be proof of a specific intent of the kind charged. Mere recklessness towards, or foresight of the likelihood of, such harm occurring without such a specific intent is not sufficient. [38] The Crown accepted that the law on offences of specific intent in Western Australia was settled. The trier of fact had to be satisfied, to the requisite standard, as to the subjective intent of the accused.

1. Hoskin (1974) 9 SASR 531 at 536-538; Belfon [1976] 1 WLR 741 at 747-748; [1976] 3 All ER 46 at 52-53; (1976) 63 Cr App R 59 at 64.

However, because the accused is ordinarily entitled to remain silent, putting the prosecution to the proof of the crime alleged, a practical problem is commonly presented in the proof of intention where the accused gives no direct evidence, or believable evidence, as to the intention at the relevant time. Intention cannot be proved as a fact. [39] The only course open to the trier of fact (judge or jury) is to draw inferences as to the accused's intention at the relevant time from the facts proved in the evidence. As Kennedy J observed in this case: [40]

The intention with which the applicant acted resided in the mind of the applicant himself, and any finding of an intention to kill was necessarily a matter of inference from the facts. The same thought appears, but with emphasis upon the criminal standard of proof, in what Dixon J said in Martin v Osborne : [41] If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference. In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. 1. Selvanayagam [1951] AC 83 at 87. 2. Cutter (1996), p 4. 3. (1936) 55 CLR 367 at 375.

It has been repeatedly pointed out, by reference to this dictum, that the task of the trier of fact is not to evaluate competing hypotheses and to consider whether they are equally open to acceptance [42] or whether one is " "more consistent" as if there could be degrees of consistency". [43] In Plomp, [44] Dixon CJ explained, citing his own earlier words in Martin v Osborne : [45]

This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed. 1. See, eg, Knight (1992) 175 CLR 495 at 502-503; 171-172. 2. Plomp at 243, per Dixon CJ. 3. (1963) 110 CLR 234 at 243. 4. (1936) 55 CLR 367 at 375; cited in Knight at 503; 172.

In Shepherd, [46] Dawson J (with the concurrence of Mason CJ, Toohey and Gaudron JJ) remarked:

[Intention] is something which, apart from admissions, must be proved by inference. But the jury may quite properly draw the necessary inference having regard to the whole of the evidence, whether or not each individual piece of evidence relied upon is proved beyond reasonable doubt, provided they reach their conclusion upon the criminal standard of proof. Indeed, the probative force of a mass of evidence may be cumulative, making it pointless to consider the degree of probability of each item of evidence separately. 1. (1990) 170 CLR 573 at 580; 51 A Crim R 181 at 185.

It is important to draw a distinction between the intention of the accused and his or her motives, desires, wishes or hopes in doing the act alleged to constitute the crime charged. [47] Attempts have been made to define the meaning of "intent" or its derivatives. [48] However, the better view is that the word, being one of ordinary acceptation, should not be defined but should be left to the trier of fact without elaboration as to its meaning. [49] The only exception is a case where some element in the evidence suggests the need for elucidation, so as to draw the distinction between intention, on the one hand, and the accused's motives, desires, wishes, hopes, reasons or expectations, on the other. Clearly enough, where there is no direct evidence to which the trier of fact can safely resort, so as to draw an inference as to the "subjective" intention of the accused, the principal focus of attention will ordinarily be the facts surrounding the alleged offence. Windeyer J explained why this was so in his reasons in Parker : [50]

In every case where intent is in question the question is what did the accused intend. Of that, the acts he did may well provide the most cogent evidence. In some cases the evidence that the acts provide may be so strong as to compel an inference of what his intent was, no matter what he may say about it afterwards. If the immediate consequence of an act is obvious and inevitable, the intentional doing of the act imports an intention to produce the consequence. Thus to suppose that a sane man who wilfully cuts another man's throat does not intend to do him harm would be absurd. A sane man who intentionally belabours another with a knuckle-duster while he is lying helpless on the ground and then stabs him with a knife, cutting his throat, cannot rationally be said not to have meant to do him grievous bodily harm at the least. Moreover, it might well be thought that such deeds must have been done with a reckless indifference to human life. 1. Hyam v DPP at 73; 100-101. 2. See, eg, Steane [1947] KB 997 at 1004-1005; (1947) 32 Cr App R 61 at 65-66; Willmot (No 2) [1985] 2 Qd R 413 at 418-419. 3. Moloney at 926; 106. 4. (1963) 111 CLR 610 at 648-649.

The first applicable appellate principle is that the appellate court must conduct its own independent assessment of the evidence, both as to its sufficiency and its quality. The court must do so within the limits imposed by the fact that it neither sees nor hears the witnesses. [51] This Court did not hear extensive argument about the differences (if any) which might arise in the appellate consideration of a claim that a verdict is unsafe and unsatisfactory where that verdict is entered by a judge sitting alone, as distinct from by a verdict of a jury. It was assumed that the same principles would apply, save for the modification that, in a trial by judge alone, the appellate court will have the reasons of the judge, absent when the trial is by jury.

1. Morris (1987) 163 CLR 454 at 473; 28 A Crim R 48 at 62; Chidiac (1991) 171 CLR 432 at 443; 52 A Crim R 119 at 125; Knight at 503; 172.

Secondly, the appellate court, considering whether the verdict is unsafe and unsatisfactory, must inquire whether a reasonable trier of fact could have found that an inference or hypothesis consistent with innocence of the offence charged was open on the evidence. If it could, the accused is entitled to the benefit of the doubt created by that fact. This rule was stated by this Court in Knight [52] in terms which were not challenged in this case:

The question is whether the jury, acting reasonably, must have entertained a reasonable doubt about the guilt of the appellant.

The question whether the verdict of the jury was unsafe and unsatisfactory can, in the circumstances of this case, be rephrased to ask whether the jury, acting reasonably, could have rejected as a rational inference the possibility that the appellant fired, without an intent to kill, the shot which hit [the victim].

In Shepherd, [53] Dawson J had earlier said: [T]he guilt of the accused must be established beyond reasonable doubt and [the trier of fact] must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence. 1. (1992) 175 CLR 495 at 502-503; 63 A Crim R 166 at 171-172. 2. (1990) 170 CLR 573 at 579; 51 A Crim R 181 at 184-185.

Applying this established principle to the facts of this case, the question for the Court of Criminal Appeal was therefore whether Pidgeon J, acting reasonably, must have entertained a reasonable doubt about the guilt of the appellant on the primary charge alleged against him. Put another way, it was whether, acting reasonably, he could have rejected, as a rational inference, the possibility that the appellant had stabbed Constable Kirwan without an intent to kill him.

A third appellate principle of great importance must not be overlooked. The appellate court does not retry the accused on the papers. This is no more its function in a case where the trial has been had before a judge alone than in the case where the trial was conducted with judge and jury. The principle of restraint which this rule reflects derives, in part, from the respect due to the trier of fact primarily appointed by law to find the facts. It also derives from a recognition of the disadvantages which an appellate court ordinarily faces when compared to the trial court. [54] The conclusion, on the elusive matter of intention, may emerge more forcefully from the impressions derived during the trial than from reading "the printed transcript of the evidence". [55] For example, in the present case, Pidgeon J referred specifically to the site and appearance of the wound. His impression in that regard rested, in part, upon photographs and medical evidence also available to the appellate court but, in part, upon the appearance of and indications by the victim. In Whitehorn , [56] Dawson J, writing with the concurrence of Gibbs CJ and Brennan J, expressed this point thus:

It is far from inconceivable that a court of appeal may, upon the material before it and without regard to the verdict of the jury, entertain the possibility of a doubt itself but may properly conclude that the jury might reasonably have reached a verdict of guilty upon the evidence given at the trial. Where a result may have turned wholly or largely upon questions of credibility or upon competing inferences such may well be the case. It is, I think, for this reason that the observation has been made that the power to set aside verdicts which are against the weight of the evidence is to be exercised with caution and discrimination. [57] Such an observation would be largely meaningless if the question were merely whether the appellate court itself experienced a doubt. 1. Knight at 511; 178-179. 2. Knight at 511; 179. 3. (1983) 152 CLR 657 at 688; 9 A Crim R 107 at 129. 4. See Raspor (1958) 99 CLR 346 at 352.

The same general approach applies where the trial was had before a judge alone.

The point of distinction between the approach favoured by the majority and that which I favour is now reached. In part, it depends upon a different assessment of the inferences which were reasonably available. In part, it depends upon the approach which I consider proper to an appellate review of the primary judge's conclusions.

As to the former point, picking up the remark of Dawson J in Whitehorn , [58] in the ascertainment of the intention of the appellant, depending as it did upon inferences, it is neither necessary nor appropriate to ignore the objective facts of the site and force of the appellant's knife wound upon Constable Kirwan. The appellant complained that the approach, both of Pidgeon J and of the majority in the Court of Criminal Appeal, represented a "move towards" the so-called "objective" approach to the ascertainment of intention originally favoured by the House of Lords but not followed by this Court. [59] However, I see no indication either in the trial or the appellate court that this rudimentary mistake was made. It is not the law that objective facts of commonsense relevance must be ignored for fear of turning the inquiry into one of presumed intention. It would have been absurd in this case to ignore the site of the wound and the manifest peril of a severe blow to the upper chest of a human being. Such conduct is so obviously and seriously life-threatening that it is highly relevant to the considerations of what, if anything, the assailant intended when he struck. To this consideration had to be added, in this case, the undoubted facts that the appellant's hands were free and that he had (unknown to the police) a knife which he had unfolded with an intention to stab one of the police officers if the opportunity arose.

1. (1983) 152 CLR 657 at 688; 9 A Crim R 107 at 129. 2. Parker at 632-633.

It is true that there were some considerations in the evidence which would have been available for speculation about the appellant's intention when he stabbed his victim. These included the lack of any prior personal relationship with Constable Kirwan, the fact that the constable presented himself as an easy target in the close and darkened confines of the police van, the reported anger and general aggression on the part of the appellant and the effects of intoxication accepted at trial.

However, these considerations, said to permit an alternative hypothesis consistent with innocence, take me directly to the proper approach of an appellate court in a case such as the present. Because the mind can readily conceive a multitude of possibilities, a check must be imposed to exclude those which are unreasonable or which defy commonsense as applied to the objective facts. Whilst, in this case, it is true that the appellant had no past relationship with Constable Kirwan to explain the formulation of the serious intention to end the constable's life, in the facts found he did have a past history of passionate antipathy to the police. Whilst it is true that Constable Kirwan presented himself as a ready target, in the facts found he had no warning that the appellant had a knife. The appellant had deliberately and clandestinely opened the knife. He had it in that position for a time before he effected the deliberate stabbing of a person whose hands, as he could see, were fully engaged. Whilst it is true that proof of an intention to take a life represents a very serious burden for the Crown to assume, [60] to adapt the words of Windeyer J in Parker [61] if the "immediate consequence" of the appellant's act of stabbing the constable in the upper chest was "obvious and inevitable", the doing of that act ordinarily "imports an intention to produce the consequence". This is not imputed intention in disguise. It is actual intention inferred from objective facts.

1. Cf Knight at 501; 170-171. 2. (1963) 111 CLR 610 at 649.

It was thus open to Pidgeon J, as the trier of facts, to find the requisite intention as he did. For this Court to substitute a different conclusion represents, in reality, a re-determination of a factual question. Such a function would not ordinarily be the province of this Court in a criminal appeal limited to one by special leave. More importantly, it would represent a substitution by this Court of its assessment of the significance and weight of evidence for that of the trier of fact rather than a consideration of whether it was open to the trier of fact properly to convict on the evidence accepted by him. [62]

1. Carr (1988) 165 CLR 314 at 331; 35 A Crim R 387 at 400.

Adopting the approach proper to appellate review, the Court of Criminal Appeal of Western Australia rightly rejected the argument that the trial judge was bound to have a reasonable doubt and that he could not be satisfied beyond reasonable doubt that the inference of intent to kill was the only one reasonably open on the evidence. Adopting the same approach of appellate restraint, this Court should have declined the factual reassessment urged upon it. The right of appeal to the Court of Criminal Appeal in Western Australia is confined to an appeal involving a question of law. [63] Otherwise, the prisoner must seek the leave of the Court of Criminal Appeal or a certificate of the judge who conducted the trial where any ground of appeal involves a question of fact alone or a question of mixed law and fact. Although speculative hypotheses may be conceived, the conclusion of the trial judge was analogous to that of a jury. It was founded in the commonsense assessment which he made, armed with the advantages which he enjoyed.

It was for these reasons that I would have dismissed the appellant's appeal. However, as my opinion was a minority one, the court made the orders previously stated.