Court of Appeal (WA)|2000-06-09|Before: White J, Murray J, Kennedy J, Wallwork J

The applicant denied intending to kill Ms Vince or to threaten her life. He denied any intention to maim, disfigure or disable her, and he denied that he intended to cause her any injury which would or may have had permanent consequences to her life or health.

35 When cross-examined the applicant agreed that when he saw Ms Vince he "just tramped [his] foot and went straight at her". He agreed he wanted to hurt her and his intention was to "just give her a bump with the car", to "bruise her" by striking her with the left side of the front mudguard. I would not uphold ground 1.

37 In my opinion this is not a proper ground upon which an application for leave to appeal against the conviction may be based; nor, if it was the sole ground of appeal relied upon, would it support an appeal as of right. Under the Criminal Code (WA), s 688(1)(a), an appeal against conviction may be brought on any ground of appeal which involves a question of law alone and, under s 688(1)(b), an appeal against conviction may be brought by leave upon any ground of appeal which involves a question of fact alone or a question of mixed law and fact, or upon any ground which appears to the Court of Criminal Appeal to be a sufficient ground of appeal. But in each case it is the conviction against which the appeal may be brought and there is no provision in the Code for any form of interlocutory appeal against a ruling or decision of the trial Judge made during the course of the trial: Duke v The Queen [1999] WASCA 215; 13 October 1999, an application for leave to appeal against an interlocutory order refusing to the applicant a separate trial. The judgment was that of Malcolm CJ, with whom Kennedy and Pidgeon JJ agreed.

38 It follows, in my opinion, that in a competent application for leave to appeal against conviction, a proper and acceptable ground is one which in some way challenges the conviction and ground 2 patently is not directed to that end. A ground in this form was considered to be inappropriate by Malcolm CJ in Davis v The Queen (1990) 5 WAR 269, 271 and that view was followed by this Court in Naylor v The Queen, unreported; CCA SCt of WA; Library No 960147; 20 March 1996 in a joint judgment delivered by Pidgeon, Rowland and Owen JJ.

39 Indeed, that has long been the view of the Court and in my respectful opinion it is correct, although I note that in respect of the rather differently worded provisions of the Criminal Appeal Act 1968 (Eng), s 2(1), the English Court of Appeal considered that an appeal against conviction could be advanced on the ground that the trial Judge wrongly rejected a submission of no case to answer at the end of the prosecution case: R v Smith [2000] 1 All ER 263. It was held that the Court of Appeal would judge the position at the time when the submission was made and would not consider evidence admitted thereafter as part of the defence case. With the greatest of respect for that view I find it unpersuasive, particularly in the context of the Criminal Code.

40 It follows that what is to be considered is not the sufficiency of the case to go to the jury at the close of the prosecution evidence, but the sufficiency of the evidence in its entirety to sustain the conviction. Again, it has long been the view in this State that that is the appropriate inquiry. That is the view which has also been taken at least in Victoria: R v Wood [1974] VicRp 16; [1974] VR 117, 119 where the Full Court observed that if the verdict was supportable on the whole of the evidence, it could not be said that any substantial miscarriage of justice has occurred, even if there was an error on the part of the trial Judge in allowing the case to go on at the conclusion of the prosecution case.

41 However, it is convenient to observe that in my respectful opinion there is nothing to suggest that Malcolm CJ did err in ruling that the applicant had a case to answer. His Honour correctly directed himself as to the law, citing his judgment, with which Kennedy and Ipp JJ agreed, in Morrison v Kiwi Electrix Pty Ltd [1998] WASCA 203; (1998) 19 WAR 482. That case discussed the proper approach to a no case submission made by the accused in a circumstantial evidence case such as this. The Court followed the judgment of King CJ in R v Bilick (1984) 36 SASR 321 at 335 where the test was stated to be whether the evidence led by the Crown, taken at its highest, was capable of establishing the guilt of the accused beyond reasonable doubt. At 337, in respect of a circumstantial evidence case, King CJ said:

"Where the case is a circumstantial or partly circumstantial case and therefore depends upon inferences, the question may be expanded so that it becomes: On the assumption that all the evidence of primary fact considered at its strongest from the point of view of the case for the prosecution, is accurate, and on the further assumption that all inferences which are reasonably open, are drawn, is the evidence capable of producing in the mind of a reasonable person satisfaction beyond reasonable doubt, of the guilt of the accused?"

42 Malcolm CJ reminded himself that at that stage the position of the trial Judge is different from that of an appellate Court which may later be asked to examine the sufficiency of the evidence to sustain the conviction. His Honour referred to the passage in the judgment of the High Court in Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207 at 214 - 215 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."

43 The applicant is perfectly correct to argue that in a circumstantial case, the proper application of the rule that the burden of proof beyond reasonable doubt rests upon the prosecution in respect of every element of the offence charged means that the jury may not infer guilt from the facts as they find them to be unless that is the only inference reasonably open on the evidence. A convenient citation of authority for that proposition is Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, 578 - 579 per Dawson J, with whom Mason CJ, Toohey and Gaudron JJ agreed. But the question for the trial Judge upon a no case submission is not whether the jury should draw an inference of guilt (in this case with respect to the intention of the applicant) upon the basis that it was the only inference reasonably open. The question for the trial Judge is the different question whether, taken at its highest, the evidence led by the Crown establishes facts capable of supporting the inference of intention if the jury should choose to draw it.

44 Malcolm CJ remarked upon the evidence which was capable of sustaining the conclusion that the applicant was the driver of the motor vehicle which, at a speed of perhaps as high as 50 kph, was deliberately driven directly at Ms Vince with the intention that it would strike her. There was the motive arising out of the acrimonious breakdown of their relationship, the evidence of the applicant's anger and his determined efforts to get into the pit area so that he might "get" the person who later proved to be Ms Vince. There was evidence of purpose and intention despite the level of the applicant's intoxication, and in those circumstances it was clearly open to the jury to infer at least the intention to do Ms Vince grievous bodily harm. As I have said, it did not need to be the case that the jury would or should on the evidence led thus far draw that inference, but simply that the jury could do so on the basis that in their view the inference was the only one reasonably open so as thereby to establish the applicant's guilt beyond reasonable doubt. Even if ground 2 were open to be considered, it has in my opinion no merit.

45 Turning then to ground 3 and the question of the directions given to the jury by Malcolm CJ in respect of the question of intent relevant to all the counts on the indictment affecting the applicant, it is convenient to start with a review of those directions. His Honour simply spoke throughout of the necessity for the jury to find it established beyond reasonable doubt that at the time the applicant did the acts relevant to the various counts, he intended to kill Ms Vince, to maim, disfigure or disable her, or to do her grievous bodily harm. His Honour did not seek to define the term "intention", but he told the jury that as intention was a state of mind, it had to be proved in this case by inference from what the jury found the applicant did or said and the surrounding circumstances as the jury found them to be. His Honour correctly directed the jury in the terms approved in Shepherd as to when the jury would be justified in drawing such an inference. His Honour then reviewed the evidence, to most of which I have referred above. He went on to speak of the relevance of intoxication in respect of the formation of a specific intention and he discussed the evidence in that regard.

46 His Honour then distinguished intention from motive or desire and he pointed out that to establish a motive for the particular attack upon Ms Vince by the use of the motor car might assist in coming to a conclusion about the applicant's specific intention. His Honour then summarised his directions on this aspect of the case specifically in relation to each of the first three counts on the indictment. In the course of doing so with respect to count 3, his Honour explained the type of injury which would constitute grievous bodily harm, concluding his directions in the following way:

"The offence does not involve proof that he actually caused grievous bodily harm. It is sufficient if you are satisfied beyond reasonable doubt that he intended to hit her with the car and by doing so intended to cause her bodily injury of such a nature as to endanger or to be likely to endanger her life or to cause or be likely to cause permanent injury to her health.

So it would be enough if he intended to cause permanent injury to health, and if you are satisfied that that was his intention, and you were satisfied that he deliberately drove the car at her with the intention of hitting her, it would be open to you to find him guilty as charged in respect of count 3."

47 At the conclusion of his Honour's charge to the jury counsel raised various matters upon which they sought redirection. Counsel for the applicant submitted that it was necessary for his Honour to explain what intention was so as to distinguish it from foreseeability of the consequences of the applicant's conduct. The submission was that the Judge should direct the jury "that for intention to be proved, not only must Mr Draper have foreseen the consequence, but he must also have desired it." It will be noted that ground 3 adds the rather different complaint that his Honour erred in not directing the jury that a finding of recklessness would be insufficient to support the conviction.

48 I have reviewed the evidence, including that of the applicant whose case was, of course, that although he deliberately drove the car at Ms Vince with the intention of striking her with it, he gave no thought to the consequence that Ms Vince might be killed or seriously hurt. Because he was angry and intoxicated he said he actually intended to hurt her, but not to seriously hurt her; to cause her a few bruises. His evidence was that he did not actually foresee that any such serious consequence might occur; he just did not turn his mind to the issue at all.

49 That being the case, it seems to me that to attempt to explain intention in terms of foresight of consequences would have been calculated to mislead the jury. Nor I think was it necessary to expressly address the distinction between intention and recklessness. The direction given by Malcolm CJ was perfectly apt to require the establishment of intention in the sense that the word conveys as an ordinary expression of the language. The jury could not, I think, have considered that the requirement of intention was satisfied if they concluded that, although they were not satisfied beyond reasonable doubt that the applicant intended to cause Ms Vince grievous bodily harm, they were satisfied that his behaviour was so grossly negligent as to be properly described, as a matter of law, as recklessness.

50 It is unnecessary for the purpose of deciding this application, to discuss the way in which the courts have considered the matter of intention and the statements of authority which have been made in relation thereto. A number of the relevant authorities were reviewed by Kirby J in Cutter v The Queen [1997] HCA 7; (1997) 143 ALR 498 at 509 - 511. His Honour there made the points that it is the subjective intention of the accused person with which the Court is concerned, "mere recklessness towards or foresight of the likelihood of, such harm occurring without such a specific intent is not sufficient." (510). At 511 his Honour said:

"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. Attempts have been made to define the meaning of 'intent' or its derivatives. 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. 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."

51 As has been seen, in this case Malcolm CJ did draw the distinction between intention and motive or desire. Beyond that, in my respectful opinion, no more was required than that his Honour should clearly speak of the necessity to establish the relevant intention beyond reasonable doubt and this clearly his Honour did. I would not uphold ground 3.

52 As to ground 4, it is, of course, in an unsatisfactory form as it entirely lacks any particularity. The written case simply says in respect of this ground that reliance is placed upon the arguments presented in support of grounds 2 and 3. It follows that in my opinion ground 4 also is without merit and it need only be said that in my opinion the evidence amply supported the conclusion of guilt to which the jury came, beyond reasonable doubt. I would refuse the application for leave.

Draper v The Queen [2000] WASCA 160 (9 June 2000)

He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523

Knight v The Queen [1992] HCA 56; (1992) 175 CLR 495

Parker v The Queen [1963] HCA 14; (1963) 111 CLR 610

Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365

Woolmington v DPP [1935] UKHL 1; [1935] AC 462

30 However it should be said that by reason of the above considerations, evidence of identification of a suspect by means of a photograph should only be led where it is unavoidable and where another more preferable form of identification is not practicable. In Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395 at 402, Gibbs CJ referred to the discretion to exclude evidence if the strict rules of admissibility would operate unfairly against the accused. His Honour said:

32 There is no suggestion that the decision to make the admission was that of counsel uninstructed by the applicant. What he says is that the admission would not have been made had Malcolm CJ not ruled the evidence to be admissible and, if the evidence was excluded there was no prospect that the applicant could have been convicted. So much may be true, but in my opinion the applicant is now bound by the way he conducted his defence and by the way he instructed counsel as to how the trial was to be conducted on his behalf. There was simply no issue as to identity and in those circumstances it cannot be said that the trial process in any way miscarried so as to occasion a miscarriage of justice: R v Birks (1990) 19 NSWLR 677, 685; Jukov v The Queen (1994) 76 A Crim R 353, 361; Suresh v The Queen [1998] HCA 23; (1998) 153 ALR 145 per McHugh J at 151, Kirby J at 159 - 160 and Payne J at 162; and Moore v The Queen, unreported; CCA SCt of WA; Library No 980536; 18 September 1998 per Malcolm CJ, with whom Wallwork and Murray JJ agreed at 12 - 14.

Draper v The Queen [2000] WASCA 160

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Draper v The Queen [2000] WASCA 160 (9 June 2000)