Fazlilar v R

HEADNOTE [This headnote is not to be read as part of the judgment] The applicant was found guilty by a jury of the murder of Donovan Mileham on 14 November 2015. He sought leave to appeal his conviction on the sole ground that the verdict was unreasonable. During the day on which the deceased was killed he and the applicant and one Dimarelis occupied a serviced suite located in the Sydney CBD and there consumed alcohol, cocaine and methamphetamine for several hours. Late in the afternoon the applicant obtained access to the deceased's mobile phone, where he saw a number saved under the description "police crime". The applicant confronted the deceased aggressively about that and called him a "dog". The deceased was seated on a lounge with his knees drawn up to his chest. The applicant used his left hand to seize the deceased by the collar, slapped him across the face with his right hand and repeated the accusation that he was a "dog". The applicant then drew a hand gun from his waistband and tapped the muzzle of it against the deceased's left temple two or three times before lowering the gun and firing it into the posterior aspect of the deceased's left upper thigh. The projectile entered the deceased pelvic cavity and severed a major blood vessel. The consequent internal blood loss was the direct cause of death, within minutes The applicant conceded that it was open to the jury to have accepted Dimarelis' account of what occurred in the suite, to the above effect. The applicant's only contentions were that the jury ought to have had a reasonable doubt as to (1) whether he acted deliberately in firing the single gunshot into the deceased's leg and (2) whether the act of firing the gunshot was accompanied by an intent to cause grievous bodily harm. No question of principle arose. The Court held (Beech-Jones CJ at CL, Fagan J and R A Hulme AJ) granting leave to appeal but dismissing the appeal against conviction: 1. (1) The circumstances that the applicant evinced anger towards the deceased, that he exhibited control over the gun by first tapping it on the deceased's temple, that he lowered it to the leg and discharged it whilst within arm's-length of the deceased and that he did not immediately or subsequently express regret or assert that the shot had been an accident, all supported an inference of deliberateness that was overwhelming: [29]-[35]. 2. (2) As a matter of common sense and the understanding of any person of moderate intelligence, the firing of a handgun into the lower limb of another person at close range would be expected to cause grievous bodily harm and the inference that this consequence was intended by the applicant's deliberate discharge the weapon in those circumstances was, again, overwhelming. The likelihood that the applicant was intoxicated was a factor to be taken into account but was relatively insignificant against the inference of specific intent arising from the applicant's deliberate act of shooting, that by its nature was calculated to cause grievous bodily harm: [36]-[40].