(2019) 373 ALR 433
Libke v The Queen (2007) 230 CLR 559
[2007] HCA 30
M v The Queen (1994) 181 CLR 487
Source
Original judgment source is linked above.
Catchwords
[2020] HCA 15
Dansie v R (2022) 96 ALJR 728[2022] HCA 25
Fennell v The Queen [2019] HCA 37(2019) 373 ALR 433
Libke v The Queen (2007) 230 CLR 559[2007] HCA 30
M v The Queen (1994) 181 CLR 487[1994] HCA 63
Pell v The Queen (2020) 268 CLR 123[2020] HCA 12
R v Delaney [2022] NSWSC 492
R v Hillier (2007) 228 CLR 618[2007] HCA 13
SKA v The Queen (2011) 243 CLR 400[2011] HCA 13
The Queen v Baden-Clay (2016) 258 CLR 308[2016] HCA 35
Category: Principal judgment
Parties: Alan Delaney (applicant)
Rex (respondent)
Representation: Counsel:
Judgment (3 paragraphs)
[1]
The applicant's intention to kill or cause grievous bodily harm
There is another aspect of this case. To succeed on the murder charge the Crown had to prove that the applicant intended to kill Mr Baxter, or that he intended to inflict on Mr Baxter grievous bodily harm. Although this was the subject matter of the notice of appeal, no submission on this subject was advanced in writing.
The applicant's sole submission on intention was made orally. The submission was that this Court, in considering the whole of the evidence, should conclude that by reason of the applicant's answers in the record of interview, the applicant did not intend to cause the deceased grievous bodily harm. As to intention to kill, the applicant submitted that "he certainly had no intention to kill because if he was going to kill, he wouldn't have walked away and left the deceased under the bridge".
Having read all of the evidence I have no doubt that the jury were entitled to conclude that the applicant intended to cause the deceased grievous bodily harm. On all of the evidence I conclude that:
1. The applicant became extremely angry at the deceased prior to the incident on 26 December 2019. This is demonstrated by numerous texts, calls and Facebook messages made by the applicant leading up to and after what on any view was a very serious assault. One text message sent by the applicant to the applicant's partner at 5:31 am on 26 December 2019 included the following:
…tell yr mate ruby [Ruby Clarke, a friend of the applicant's partner] who's been fucking you he is dead. Aaron [the deceased's first name] is to and my mate Paul and myself are in a cab now and on the war path.
1. Prior to the assault, the applicant yelled at the deceased "I'm going to fucking kill you. You're a dead cunt".
2. During the assault, the applicant shouted various threats and profanities, including:
"I'm going to cut your fucking head off", "I'm going to kill you", "I'm going to rip your head off", "I'm going to fucking kill you".
1. The assault was a vicious attack on Mr Baxter and involved punching the deceased to the face and chin, punching his head into a concreate pylon and kneeing him (more than once) in the abdomen.
As I have said, the jury were entitled to reject the applicant's explanation of his state of mind in his record of interview. The jury were obviously entitled to conclude that the applicant intended, at least, to cause the deceased grievous bodily harm.
The verdict of the jury was not unreasonable. I would reject this aspect of the applicant's claim.
[2]
Conclusion and proposed orders
For the foregoing reasons I propose the following orders:
1. Leave to appeal out of time granted;
2. Leave to appeal granted;
3. Appeal dismissed.
STERN JA: I agree with the orders proposed by Payne JA and with his Honour's reasons.
YEHIA J: Having independently reviewed the whole of the evidence, I agree with Payne JA that the sole ground of appeal, namely that the verdict was unreasonable, has not been made out. I agree with the orders proposed by Payne JA.
[3]
Amendments
24 July 2023 - Name included in paragraph [1]
24 July 2023 - Quotation marks
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Decision last updated: 24 July 2023
HEADNOTE
[This headnote is not to be read as part of the judgment]
On Boxing Day 2019, Mr Alan Delaney (the applicant) violently assaulted Mr Aaron Baxter beneath a bridge in Queanbeyan. Soon after the assault, Mr Baxter collapsed, and later died in hospital. An autopsy showed the cause of death was a ruptured spleen, leading to internal bleeding and heart failure.
The applicant was indicted on a charge of murder and was tried before a Supreme Court jury in February 2022. An alternative verdict of manslaughter by unlawful and dangerous act was left to the jury.
The main issue was causation. The Crown's case was that a blow or blows inflicted by the applicant during the assault - in particular a series of knee-blows - were a significant cause of the spleen rupture and therefore Mr Baxter's death. Mr Joseph Wipiiti, the sole eyewitness to the fight, gave evidence at trial and was cross-examined extensively. He recalled between two and four knee-blows to the deceased's ribs or abdomen. A police video of Mr Wipiiti demonstrating the knee-blows was played to the jury. A forensic pathologist gave evidence that a knee-blow could rupture the spleen, and that it was possible, though not likely, that a fall from standing height onto a flat surface could do the same.
A second issue was the applicant's intention to kill or inflict grievous bodily harm on Mr Baxter. To prove intention, the Crown relied on messages and Facebook posts made by the applicant expressing violent intentions towards the deceased, his graphic threats during the assault, his sheer anger and the force of his blows.
On 22 February 2022, the jury found the applicant guilty of murder. He was sentenced to 16 years' imprisonment, with a non-parole period of 12 years.
The applicant appealed his conviction. Although he originally sought to substitute the murder verdict with a verdict of manslaughter, after a late amendment, the final relief sought was to quash the conviction entirely.
The sole ground of appeal was:
(1) The jury's verdict was unreasonable and unsafe.
The issues on appeal were:
(i) Whether, on the evidence, the jury must have entertained a doubt that one or more blows inflicted by the applicant caused Mr Baxter's death;
(ii) Whether, on the evidence, the jury must have entertained a doubt that the applicant intended either to kill Mr Baxter or to cause him grievous bodily harm.
The Court held (Payne JA, Stern JA and Yehia J agreeing), granting leave to appeal but dismissing the appeal:
(1) When a jury verdict is challenged as unreasonable, a court of criminal appeal must independently assess the evidence to determine whether the verdict is unsafe. The question is whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt: [25]-[29].
M v The Queen (1994) 181 CLR 487; [1994] HCA 63; Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13; Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12; Dansie v R (2022) 96 ALJR 728; [2022] HCA 25 cited.
(2) A court of criminal appeal must not disregard the jury's advantage in seeing and hearing witnesses give evidence: [31]
M v The Queen (1994) 181 CLR 487; [1994] HCA 63; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13; The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65]-[66] cited.
(3) Where a case is circumstantial, the Court is required to weigh all the circumstances as a whole, rather than in a piecemeal fashion, in deciding whether the jury was entitled to be satisfied of guilt on the criminal standard: [32]-[33]
Coughlan v The Queen (2020) 267 CLR 654; [2020] HCA 15 at [55]; R v Hillier (2007) 228 CLR 618; [2007] HCA 13 at [48]; Fennell v The Queen [2019] HCA 37; (2019) 373 ALR 433 at [82] cited.
The trial
On 31 August 2021, the applicant was indicted on a charge of murder. His trial took place before Fagan J and a jury between 14 and 22 February 2022. An alternative verdict of manslaughter by unlawful and dangerous act was left to the jury. The Crown's primary submission on causation, for both the murder and manslaughter charge, was that the knee-blows to the deceased's abdomen ruptured his spleen and caused death. The Crown also submitted that even if the jury was not satisfied that knee-blows to the deceased's abdomen ruptured his spleen and caused death, the assault by the applicant was a substantial or significant cause of death by causing the deceased to fall, rupturing his spleen.
On 22 February 2022, the jury found the applicant guilty of Mr Baxter's murder. On 26 April 2022, the applicant was sentenced to imprisonment of 16 years comprising a non-parole period of 12 years commencing on 27 December 2019 and expiring on 26 December 2031, with the balance of term of four years to expire on 26 December 2035. The applicant is first eligible for release on parole on 26 December 2031: R v Delaney [2022] NSWSC 492.
Legal principles to be applied
The principles that are applicable to an appeal on the ground that a verdict is unreasonable or cannot be supported having regard to the evidence were set out by the High Court in M where Mason CJ, Deane, Dawson and Toohey JJ, in their joint judgment, stated at 492-3:
[6] Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory. Other terms may be used such as 'unjust or unsafe', or 'dangerous or unsafe'. In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'.
…
[7] Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations. (footnotes omitted.)
Subsequently, in Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30, Hayne J (with whom Gleeson CJ and Heydon J agreed) expressed the test for whether the convictions sustained below were unreasonable in the following terms:
[113] [T]he question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt. (Footnote omitted; emphasis in original.)
The principles in M were reiterated by the High Court in SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13. French CJ, Gummow and Kiefel JJ, in their joint judgment, stated at [13]-[14]:
[13] The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say:
'In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.'
…
[14] In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA [v The Queen (2002) 213 CLR 606; [2002] HCA 53], the Court is to make 'an independent assessment of the evidence, both as to its sufficiency and its quality'. In M, Mason CJ, Deane, Dawson and Toohey JJ stated:
'In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, "none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand".' (footnotes omitted.)
The High Court in Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 made clear that there is no inconsistency in the formulation of the test in Libke on the one hand and in M on the other:
[45] As their Honours observed, to say that a jury 'must have had a doubt' is another way of saying that it was 'not reasonably open' to the jury to be satisfied beyond reasonable doubt of the commission of the offence. Libke did not depart from M. (Footnote omitted.)
In Dansie v R (2022) 96 ALJR 728; [2022] HCA 25 at [12], the High Court confirmed the continuing authority of M as the test for unreasonableness.
In performing the task entrusted to it when reviewing a conviction, a court of criminal appeal must not disregard the benefit the jury enjoys in seeing and hearing the witnesses before it: Pell at [37]. The jury's advantage includes, but is not limited to, its capacity to see and hear the witnesses give their evidence. As the High Court explained in The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65]-[66]:
[65] It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is 'the constitutional tribunal for deciding issues of fact'. Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is 'unreasonable' … is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial.
…
[66] With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court 'must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.' (footnotes omitted)
Where, as here, the case is largely circumstantial, the Court is required "to weigh all the circumstances in deciding whether it was open to the jury to draw the ultimate inference that guilt has been proved to the criminal standard" and in so doing, to form its own judgment as to whether "the prosecution has failed to exclude an inference consistent with innocence that was reasonably open": Coughlan v The Queen (2020) 267 CLR 654; [2020] HCA 15 at [55].
Other principles when the case is circumstantial include:
1. A circumstantial case cannot be considered in a piecemeal fashion: R v Hillier (2007) 228 CLR 618; [2007] HCA 13 at [48]; Fennell v The Queen [2019] HCA 37; (2019) 373 ALR 433 at [82];
2. For an inference to be reasonable, it must rest upon something more than mere conjecture and the bare possibility of innocence should not prevent a jury from finding an accused guilty, if the inference of guilt is the only inference open on the evidence: The Queen v Baden-Clay at [47].