DPP v Byrne No. 3 [2016] VSC 346

2 At the conclusion of the Crown case, the accused submitted, pursuant to s 226(a) of the Criminal Procedure Act 2009 (Vic), that there was no case to answer on the charge of attempted murder.

3 I refused the application, for reasons that would follow in due course. These are my reasons.

4 The issue is whether the prosecution can establish an intent to kill. In assessing a 'no case' submission, the prosecution case is taken at its highest, and all inferences that are most favourable to the prosecution case, and are reasonably open, are drawn.[1] The test is whether, as a question of law, a jury could find an intent to kill and, assuming that all other elements of the offence were proved, find the accused guilty of attempted murder.[2]

5 The accused submitted that, firstly, the evidence taken at its highest was incapable of providing proof, beyond reasonable doubt, of an intention to kill. Secondly, even if the evidence was capable on one view of supporting an inference of intent to kill, the evidence was incapable of excluding other rational hypotheses that fall short of that intention.

6 In a circumstantial case, which this is, a jury can only draw the inference of intention that is sought - that the accused intended to kill Steen Locke - if it is the only reasonable inference available on the evidence. They must be able to exclude all other reasonable hypotheses consistent with the accused's innocence.[3] The accused submitted that, as a matter of law, it was not open to the jury to do so.

7 In Doney v R,[4] the High Court set out the principles in relation to a no case submission at the conclusion of the Crown case.

It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.

Circumstantial evidence can prove a fact beyond reasonable doubt only if all other reasonable hypotheses are excluded.

9 In R v Cengiz,[6] Ormiston JA observed:

If it can be shown that it is open to the jury to hold that all other hypotheses should be excluded as irrational or unreasonable, then it is important to allow the jury to apply their collective minds to the issue, because, as was said later in Doney, '... the purpose and the genius of the jury system is that it allows for the ordinary experiences of ordinary people to be brought to bear in the determination of factual matters'.

Harper AJA stated the relevant test as follows:[7]

It sometimes happens in a circumstantial case that the evidence is not in dispute, but the parties disagree about the inference or inferences which should be drawn from the facts. In such cases, the judge must take the case away from the jury if, and only if, an inference consistent with innocence is not only open on the undisputed evidence but is also an inference which cannot be rationally excluded.

10 In the South Australian Court of Criminal Appeal in Case Stated by Director of Public Prosecutions (No 2 of 1993),[8] King CJ said of the trial judge's role: [9]

He is concerned only with whether a reasonable mind could reach a conclusion of guilty beyond reasonable doubt and therefore exclude any competing hypothesis as not reasonably open on the evidence.

I would re-state the principles, in summary form, as follows. If there is direct evidence which is capable of proving the charge, there is a case to answer no matter how weak or tenuous the judge might consider such evidence to be. If the case depends upon circumstantial evidence, and that evidence, if accepted, is capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt and thus is capable of causing a reasonable mind to exclude any competing hypotheses as unreasonable, there is a case to answer. There is no case to answer only if the evidence is not capable in law of supporting a conviction. In a circumstantial case that implies that even if all the evidence for the prosecution were accepted and all inferences most favourable to the prosecution which are reasonably open were drawn, a reasonable mind could not reach a conclusion of guilt beyond reasonable doubt, or to put it another way, could not exclude all hypotheses consistent with innocence, as not reasonably open on the evidence.

11 A 'no case' submission will succeed in a circumstantial case if a reasonable inference consistent with innocence is open, and that inference cannot be rationally excluded.[11]

12 The Crown case is circumstantial. There is no direct evidence of the intention of the assailant. That is not uncommon. The accused does not contest that the assailant intended to cause Steen Locke serious injury.

13 Steen Locke and his friend Ms Jerard, who witnessed the attack, described the assault. The assailant was unknown to them. The assault was sudden and unexpected, after a small exchange of words, on a seated and vulnerable Mr Locke. He had his back turned to the assailant, sitting on a jetty with his arms on the lower pipe railing and his legs dangling over the side. Steen Locke recalled feeling that he was being punched, feeling blows to his upper body and the back of his head, as he turned and struggled to his feet before seeing the attacker run off, and finding a knife lodged in his side. Steen Locke was transferred by ambulance to the Alfred Hospital where he remained for some days receiving treatment, including surgery, for a total of six penetrating stab wounds.

14 Photographs have been exhibited of the crime scene that show significant spilt blood, particularly at the point of the assault and on the footpath adjacent to Marine Parade where he waited for emergency services. Other photographs in evidence demonstrate for the jury how Steen Locke presented in the emergency department at the Alfred Hospital prior to treatment and show the wounds inflicted in graphic detail. The prosecution also tendered photographs of Steen Locke after he had been treated and prior to his discharge from hospital.

15 Dr Sungaila, a forensic physician at the Victorian Institute of Forensic Medicine summarised the treatment that Steen Locke received from the reports and hospital records made available to her and expressed her conclusions about his injuries. The material she assessed included a report from trauma surgeon, Ms Katherine Martin, Alfred Hospital medical records from 10 February-12 February 2015, the photographs I have referred to, and ambulance records in relation to Steen Locke's transfer to hospital.

16 The jury has also heard from Mr Harman, the MICA paramedic, who attended on Steen Locke at the scene and who described his condition when he arrived a short time after the assault had occurred.

17 Dr Sungalia described six penetrating wounds, two of which were life-threatening injuries if untreated:

(a) the penetrating chest injury. She stated that the distance between the skin and the body varies depending on the body mass of the individual. In a stabbing, the tissues compress so that there may only be the need for penetration of a few centimetres. In Steen Locke's case this injury alone had the potential to cause death if not treated. This risk would have increased in the presence of untreated Von Willebrand's disease, a condition that detrimentally affects the patient's capacity to form blood clots to stem and terminate blood loss. Mr Locke also suffered from hypertension.

(b) the injury to the head. She stated that the injury to the back of Steen Locke's head was significant because of its potential if untreated. Scalp wounds bleed vigorously and can cause major blood loss. Again this risk was increased by the presence of the Von Willebrand's disease and hypertension.

18 However, both Dr Sungaila and Mr Harman agreed that the injuries, once properly treated following his admission to hospital shortly after the attack, ceased to be life-threatening.

19 The accused submitted that the relevant evidence in this case, even when taken at its highest, fell short of proof of the requisite intent to kill. He submitted that even if I were of the view that the evidence of the actions of the offender in all the circumstances was capable of supporting an inference of an intention to kill, the evidence was incapable of excluding other rational hypotheses that the offender committed the acts with a state of mind falling short of an intention to kill. Although the accused did not contest that the assailant intended to cause serious injury, meaning that the live issue on the second charge was the identity of the assailant, it would not matter what state of mind was postulated. The evidence might rationally permit an inference of an intention to cause really serious injury or a reckless disregard for Steen Locke's welfare. The jury could not rationally exclude, as not reasonably open on the evidence, all hypotheses consistent with innocence on the charge of attempted murder, that is any intention other than a murderous intention.

20 The accused submitted that the prosecution relied on the same evidence in support of an inference of murderous intent to draw an inference of intention to cause serious injury. Once the jury inferred on that evidence, to the requisite standard, that the offender possessed an intent to cause serious injury the evidence could not rationally admit an intention to kill at the time of the attack. Nothing in the evidence provided a basis to distinguish between the alternate states of mind alleged in each charge. If the inference of an intention to cause serious injury could not rationally be excluded, the jury could not reason beyond reasonable doubt inferentially that the accused intended to kill.

21 The accused relied on three authorities. First, the following passages from the majority judgment in Knight v The Queen:[12]

The question which arose in the Full Court and which arises in this appeal is whether the verdict of the jury on the second count was unsafe and unsatisfactory. That question 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 Salvo. In considering that question, the Full Court were required to make their own assessment of the evidence, within the limits imposed by the fact that they neither saw nor heard the witnesses. They were required to act upon that view of the facts which the jury were entitled to take having seen and heard the witnesses.

...

Nevertheless, even assuming that the jury decided all of these matters against the appellant, it does not appear to us to be possible to exclude, as not being reasonably open on the evidence, the hypothesis or inference that the appellant did not fire the shot which hit Salvo with intent to kill. The prosecution concedes that the evidence does not disclose that the first shot fired during the struggle between the appellant and Salvo was fired with intent to kill. Yet the second shot was fired during the continuation of the same struggle within a short time of the first shot.

...

The verdict of the jury obviously entails a finding that the rifle was not discharged accidentally, but the evidence, in our view, leaves it entirely open that the second shot was fired recklessly by the appellant without the intent necessary to sustain a charge of attempted murder. That possibility could not reasonably have been excluded by the jury, even if they were of the view that the evidence was also consistent with an intent to kill on the part of the appellant.

22 The accused submitted that these passages demonstrate that the question is whether the other rational hypothesis, raised by the very evidence on the facts of this particular case, of an intention to cause serious injury, can be rationally excluded. The accused submitted that where no words were uttered to demonstrate intent, there was no pre-existing relationship and therefore no animosity between the assailant and the victim or evident motive to kill, and the attack was not sustained in the sense that the attacker fled the scene as the victim got to his feet, inferring a state of mind short of intent to kill was patently reasonable.

23 The accused also cited R v Cengiz,[13] referred to above, and the ruling of T Forrest J in R v Barnes.[14]

24 The accused submitted that on the evidence taken at its highest, the jury could not be satisfied as to the requisite intent without engaging in impermissible speculation. Only by a 'flip of a coin' could a jury prefer intent to kill to the exclusion of any degree of intention falling short of that state of mind. Those inferences of a state of mind other than a murderous intent could not be rationally excluded by the jury when deliberating on the charge of attempted murder.

25 I do not accept the accused's submission. The intention of the assailant in this case, established by reasonable inference from all of the evidence is properly a matter for the jury. I was not persuaded otherwise by comparison of the outcomes in the cases of Knight and Cengi that appear distinguishable on the facts and involved more complicated circumstances than the present case. In Knight, for example, the appellant had said in his record of interview that he did not realise he had shot anyone at all when firing a second bullet, and the Crown had not been able to disprove the theory that it may have been an accidental shot. The circumstances in Cengiz were also substantially more complex, involving uncertainty as to the actual acts which led to the victim's death and an attempt to cover up the origin of the injuries by making the victim's death look like a hit and run accident.

26 The evidence in this case, from which the assailant's intention can be drawn, is described above. That evidence, when taken at its highest, is capable of rationally supporting a finding that the assailant intended to kill Mr Locke. That the jury might conclude on the same evidence that the assailant's intention was to cause serious injury demonstrates that the issue is a matter for the jury to decide. If the jury find that the intention was to kill, then that conclusion provides a rational basis for rejecting the hypothesis that there was a lesser intention, for example to cause serious injury or really serious injury. Equally, the converse conclusion is open to the jury and that converse conclusion provides a rational basis for rejecting an alternative hypothesis that the accused did not have an intent to cause serious injury, but an intent to kill. The assailant did not have multiple intentions when stabbing Steen Locke. The conclusion that his intention was a murderous intention excludes as a rational possibility the inference that the assailant's intention was a 'lesser' intention.

27 Because the evidence referred to above, if accepted, permits a conclusion of an intention to kill to actually be drawn and to be the only conclusion open if the jury accepts the Crown's evidence viewed in its totality, the jury's determination must preclude as a reasonable explanation inconsistent with the guilt of the accused, an alternative inconsistent state of mind. The issue must be entrusted to the jury and accordingly the application that I direct an acquittal on the first count of attempted murder is refused.

[1] Attorney-General's Reference (No. 1 of 1983) [1983] VicRp 101; [1983] 2 VR 410, 417-418; Case Stated by Director of Public Prosecutions (No 2 of 1993) [1993] SASC 4152; (1993) 70 A Crim R 323, 327.

[2] May v O'Sullivan [1955] HCA 38; (1955) 92 CLR 654.

[3] [1983] VicRp 101; [1983] 2 VR 410, 415-416.

[4] [1990] HCA 51; (1990) 171 CLR 207, 214-215. See also Attorney-General's Reference (No 1 of 1983) [1983] VicRp 101; [1983] 2 VR 410, 417.

[6] [1998] 3 VR 720, 721.

[8] [1993] SASC 4152; (1993) 70 A Crim R 323.

[10] [1993] SASC 4152; (1993) 70 A Crim R 323, 327.

[11] R v Cengiz [1998] 3 VR 720; R v Barnes [2008] VSC 66.

[12] [1992] HCA 56; (1992) 175 CLR 495, 503-504 (Mason CJ, Dawson and Toohey JJ) (citations omitted).

[13] [1998] 3 VR 720, 721-722 (Ormiston, Charles JJA and Harper AJA delivered separate reasons dismissing the applications).

[14] [2008] VSC 66.