Ground 2: failure by the trial judge to explain the legal consequences of an accidental wounding
94The appellant argued that there had been a miscarriage of justice because of the failure on the part of trial counsel to ask for directions that the complainant suffered an accidental wounding at the scene of the accident. The appellant submitted that an hypothesis was available that accident was a reasonable explanation for the injury and that her Honour should have so directed the jury that they would need to be satisfied, in those circumstances, that the wound was occasioned as a result of the appellant's intentional act before they could convict the appellant. Leave to argue this point on appeal is also required as it was not raised in the court below: Criminal Appeal Rules, r 4.
95The appellant submitted that the following matters supported a case of accidental wounding: on the appellant's evidence she had no animus towards the complainant and by intervening in the fight she was simply trying to break it up, an account which, she contended, was consistent with the eyewitness evidence; the fight was "fast moving, uncontrolled and uncontrollable"; she exhibited no violence towards the complainant by way of touching or kicking him; on the expert evidence it was not established that the injury was necessarily caused by a knife that was deliberately utilised; Dr Ashour was unable to comment on the force required to inflict the wound that the complainant suffered; and the CCTV footage was equally consistent with the injury being the result of a deliberate act as it was with an unintentional act, for example, of the complainant being pushed in the altercation onto the knife or other implement that the appellant was holding.
96The appellant also contended that, on a viewing of the CCTV footage, the Crown could not negative accidental wounding. The appellant at times also advanced arguments that the complainant could have fallen onto a piece of glass or a broken bottle. In this regard, the appellant relied upon the complainant's acceptance in cross-examination that he had told the woman in the brothel that he thought he had tripped over. However, this does not fully reflect the complainant's evidence which is set out at [30], and Ms Laming denied he had said that he had fallen over. This argument was not confined to the possibility that he might have tripped over after he moved away from the altercation. A submission was made that he could haven fallen on glass during the course of the altercation, although it should be noted that the complainant was not questioned as to whether he had been accidentally stabbed or had fallen onto a sharp object at the scene. However, the appellant's primary position was that the possibility of the injury having occurred accidentally was demonstrated on the CCTV footage. As we understand her final submissions, the appellant accepted that the possibility of the complainant having been wounded by falling onto glass was somewhat speculative.
97The appellant relied upon the following evidence of Dr Ashour, who she contended, could not discount the possibility of accidental penetration by some implement or object other than a knife. In particular, she submitted that Dr Ashour's evidence did not establish that the wound was the result of a deliberate stabbing. Dr Ashour's evidence was as follows:
"Q. On the statement or the report that you have prepared do you agree that you've got a question mark, can you see where you've got provisional diagnosis?
A. Yes.
Q. You've got there question mark stab wound?
A. Yes.
Q. With right side of pneumothorax?
A. Yes.
Q. Is there any particular significance about the question mark, or why did you put it there?
A. It is more likely possibility of stab, I didn't see a knife or something, I was - you just rely on information given. It is more likely given the information given and the clinical - the wound inspection expiration that looked clean cut, sort of small like a short object, just reason to make you think it is more likely a stab wound.
Q. A knife is certainly a sharp sort of implement that could have caused the wound that you observed, that's accurate to say, a sharp knife?
A. Yes knife or any other sharp object.
Q. Would that include a piece of broken glass or would that generate some sort of jagged edge?
A. I can't really know, but it's a possibility, I'm unable to tell you exactly, it is not my area of expertise."
98The appellant also relied on the CCTV footage. Counsel for the appellant contended that if the Court considered that she was depicted holding something in her hand, then it was also possible, from a viewing of frames 10 and 11, that at that point the complainant was in the arms of her brother, who, she contended, was at that point pushing the complainant forward. The import of the submission was that in the course of those movements, the complainant fell (or might have fallen) onto or moved into the appellant's outstretched arm and came into contact with the knife in her hand. The appellant also relied upon the evidence of Ms Becker that she was not behaving aggressively but rather seemed to be trying to place herself between the two men. The appellant submitted that this was analogous to the fourth factor considered to be relevant by McHugh J in Stevens.
99In Stevens, the appellant's appeal from his conviction for murder was allowed because the trial judge had refused to give a direction to the jury as to accidental death. The deceased had been the friend and business partner of the appellant. The appellant gave evidence that as he was trying to take a rifle away from the deceased who was about to shoot himself, the shot that killed him was discharged. In a recorded telephone call to an ambulance service shortly after the shooting, the appellant said that he was "going to call it an accident for the moment": see [21].
100McHugh J, at [24], stated that if the jury rejected the appellant's account, it was open to the jury to conclude that the appellant had killed the deceased. However, that did not mean that the appellant had to be convicted of murder. His Honour considered that there were four other pieces of independent evidence that entitled them to return a verdict of not guilty. Those four matters would have enabled the jury to conclude that accident was a reasonable explanation of the whole of the evidence. The fourth of those matters was the friendly relationship between the two men, the factor upon which the appellant relied in this case as being analogous to her case that she had no animus towards the appellant.
101McHugh J after identifying those matters, observed, at [25] :
"As I have indicated, the prosecution case was a circumstantial evidence case. Such a case requires a direction to 'the jury that, if there is any reasonable hypothesis consistent with the innocence of the [accused], it is their duty to acquit.' In determining whether a reasonable hypothesis exists, the accused is not required to establish by inference that he or she is innocent. In Barca v The Queen, Gibbs, Stephen and Mason JJ said:
'However, although a jury cannot be asked to engage in groundless speculation it is not incumbent on the defence either to establish that some inference other than that of guilt should reasonably be drawn from the evidence or to prove particular facts that would tend to support such an inference. If the jury think that the evidence as a whole is susceptible of a reasonable explanation other than that the accused committed evidence that entitled the jury to return a verdict of not guilty of the crime charged the accused is entitled to be acquitted.'" (citations omitted)
102His Honour continued, at [30]:
"... Juries cannot take into account fantastic or far-fetched possibilities. But they 'themselves set the standard of what is reasonable in the circumstances.' ... In the present case, the jury might reasonably conclude that the Crown had not proved to the requisite standard that the death was not caused by accident. That conclusion may have been based on no more than a judgment that, given the relationship of the two men, the expert evidence concerning the rifle and the telephone call, they were not satisfied that it was not death by accident" (citations omitted).
103Callinan J, at [158], noted that "accident" (as used in the Criminal Code (Qld)) bore its "natural, sometimes graphic connotations of an unhappy, unintended, and unexpected adverse event".
104The Crown submitted that this case was distinguishable from Stevens in three respects. First, it was factually dissimilar from Stevens. In Stevens, a question had arisen on the evidence as to whether the gun had accidentally discharged. Secondly, in order for a jury direction to be required in respect of accidental wounding, some other event has to be identified as the cause, or a possible cause, of the wounding. In this case, no clear alternative event was identified. Thirdly, in this case, r 4 applied, whereas in Stevens, a request for a direction had been made.
105The Crown also submitted that the trial judge had appropriately dealt with any alternative possibility, in that she had clearly directed the jury that the Crown had to prove beyond reasonable doubt that the appellant had a knife and that she stabbed the complainant in the chest with it. The direction to which the Crown referred was as follows:
"The Crown, with respect to count one, must first of all prove that [the appellant] wounded [the complainant] ...
You then would consider whether there was an intention on the part of [the appellant] to cause grievous bodily harm ...
... Intent and intention are familiar words. They carry their ordinary meaning in the law. How do you prove someone's intention unless they tell you what it is? Well here the Crown seeks to prove the intention of [the appellant], being inferred or deduced from the circumstances in which the injury or the wounding occurred ... The Crown, quite rightly, is entitled to rely on the actions of [the appellant], if you find those to be the actions of [the appellant], in the circumstances, to suggest that you could only infer that the person intended to cause very serious injury ...
... Perhaps I could illustrate it in another way. If one person clobbers another person on the head with a hammer, you might think that the obvious and inevitable outcome is that the person being clobbered is going to receive a very serious bodily injury. If the hitting of the other person on the head with the hammer was deliberate, as opposed to an accidental act, then the ready conclusion is the person intentionally inflicted serious bodily injury on the other person. You might think that there is no real difficulty at all, about coming to that conclusion." (emphasis added)
106Her Honour also clearly directed the jury that the Crown had to prove that the appellant's brother did not stab the complainant.
107Her Honour correctly directed the jury in respect of a circumstantial case that:
"If there is some other conclusion which is reasonably open, that there is another reasonable explanation which is inconsistent with guilt, it is your duty to find the accused not guilty."
108The Crown submitted that it was clear on this direction that the jury was told of the need for them to be satisfied that the appellant's state of mind accompanying the act was one of intent, as distinct from the injury being caused accidentally. Although the trial judge did not refer to either of the accidental mechanisms postulated by the appellant on the appeal she was not asked to since neither were raised by trial counsel.
109In our opinion, the submission advanced on the appeal that the injury could have been sustained accidentally involves the type of speculation in which juries are not permitted to engage. The possibility of the complainant having been pushed on to a knife or sharp implement that the appellant was holding, which would have required the jury to reject her sworn evidence that she did not have a knife or sharp implement, is, on the facts, merely speculative. This case is not like Stevens where there was independent evidence that allowed for the possibility of accident. The possibility of such an accident as was argued here bears no relationship to the evidence. It is not consistent with the CCTV footage. Rather, the CCTV footage shows the appellant lunging forward with an outstretched arm. It is not consistent with the appellant's evidence or that of her brother. If the wounding happened in the vicinity of 621 Hunter Street at police marker D, the only two persons who could have been holding the knife were the appellant or her brother. Each denied having a knife. Accidental wounding is not supported by Ms Becker's evidence who says nothing on this topic. The only evidence which is neutrally available is that of Dr Ashour. That is not evidence of accidental wounding. Some other reasonable explanation for the wound would have to be postulated.
110The possibility of falling on glass was not an hypothesis that arose on the evidence. Notwithstanding that a crime scene was established within a relatively proximate time to the wounding, there was no evidence of any glass having been found. The police officers were not questioned about the presence of glass. The appellant herself recognised that the wounding by broken glass was perhaps "speculative".
111But in any event, the Court is of the opinion that the trial judge's directions to the jury were sufficient to instruct the jury of the requirement that they had to be satisfied beyond reasonable doubt that it was appellant who had stabbed the complainant and that she had done so with the intent to cause him grievous bodily harm. This, as the directions made clear, required the jury to be satisfied that the wounding was not accidental. The hypotheses upon which the appellant relied were not advanced at trial. It was not appropriate for her Honour to suggest alternate hypotheses as to how the wounding occurred.
112The fact that no issue of accidental wounding was raised at trial, may itself have been a matter of a considered forensic decision. It was not suggested that trial counsel had been incompetent. The appellant submitted, however, that regardless of whether a forensic decision had been made not to raise the point, having regard to the evidence and, in particular, what was shown on the CCTV footage, it was incumbent upon the trial judge to give a direction: see Carney at [64]. For the above reasons we reject that submission.
113The Court would not grant leave to raise ground 2. This ground, like ground 1, has involved an attempt by the appellant to place postulations before the Court that were not issues in the trial, do not have a basis in the evidence and amount to no more than an attempt to run a different case on appeal.