Herbert, N. & Ors v. The Queen [1982] FCA 159

Federal Court of Australia|1982-07-01|Before: Sheppard JJ, Sheppvard JJ

Criminal law - convictions for murder ~ directions on the effect of antoxication on the formation of relevant

intent - course of trial - requests by jury for re-

'directions - adeauacy of such redirections - provoeation -

mot a case where sufficient evadence of provocation to gustify that issue being left to gury - statement of one accused to police officer that she was "paralytac drunk" - that statement some evidence of intoxicated condition of

NGAIRE HSRBERT, PAMELA SAMPSON and RHODA WURRAWILYA v. THE QUEEN

{N THE VEDERAL COURS OF AUSTRALIA NORTHERN TEURITORY DISTRICT REGISTRY) Nos. NT G 34, 35 and

ON APPEAL FROM THE SUPREME COURT OF THE NORTHERN TERRITORY

NGAIRE HERBERT, PAMELA SAMPSON and RHODA WURRAWILYA

JUDGES MAXING ORDER: Toohey, McGregor and Sheppvard JJ. DATE OF ORDER: 30 July, 1982

The convictions of the appellants for murder be set aside.

There be a new trial of the appellants on the charges of murder, such new trial to take place at such time

It is common ground tnat tne deceased died as the result of blows inflicted by each appellant upon his head with a length of water pive. The attack upon him occurred at night in the grounds of the Parap Hotel, Darwin. Medical evidence called in the case for the Crown tends to establish that the deceased was struck 11 times. Each appellant admitted inflicting some of the blows. These admissions were made in statement to police officers and in statements made by the appellants to the gury at their trial. The terms of their admissions, the evidence of an eye witness to the attack and the medical evidence earlier referred to establish thet the attack was a most violent and brutal one.

Each of the appellants had had a substantial quantity of liquor prior to the incident. This 1s established not only in statements made to volice officers and in statements made by the appellants at tneir trial but also by other evidence. It was not a matter which was in contest either at the trial or during the proceedings before us. When sentencing the appellants the learned trial judge proceeded upon the basis that

eacn of the appellants had nad a substantial quantity of

NT G 34, 35 and ) = = a Nos. NORTHERN TERRITORY DISTRICT REGISTRY ' 36 of 1981 )

NGATRE HERBERT, PAMELA SAMPSON an we _ and RHODA WURKAWILYA

Appellants AND THE QUEEN Respondent CORAM: TOOHEY, McGREGOR and SHEPPARD JJ. TOOH=Y AND SHEPPARD JJ. 30 July, 1982

The appellants in this matter appeal against their convictions for murder anc sentences of life imprisonment imposed as a result thereof, Each appellant was charged with the murder of one Jan Draskoveic on 29 May, 1981. The trial commenced on 13 October, 1981, and was concluded on 30 October, 1981, when the gury returned verdicts of guilty. The sentences of life imprisonment were imposed on 10 Nov- ember, 1981.

Each of the appellants is an aboriginal and, by reason of s.6(1C) of the Criminal Law Consolidation Act, a life sentence was not mandatory. It was open to tne gudge to 'impose such penalty as, having regard to all the circumstances of the case,

drink in the period leading up to the attack on the deceased. In that view he was plainly correct. The appellants were represented by counsel at

"intoxicated condition at the time of the assault. It

was put to the gury that by reason of their drunken state the jury could not be satisfied beyond reasonable doubt:- (1) that their actions in striking the deceased with the length of water pipe were voluntary; or (2) that they had, at the time the blows were inflicted, an intention either to kill or

If the first submission were accepted, the second would not arise for consideration. Its acceptance would necessarily result in the acquittal of the appellants in respect of both the crimes of murder and manslaughter. The regection of the first submission but the acceptance of the second, although leadirg to acquittals on the charges of murder, would very probably have led to convictions for manslaughter. In the result the jury, in deciding to find the appellants guilty of murder, must be taken to

were abandoned. Shortly stated the only grounds ultim-

on matters connected with voluntariness, intention, intoxication and the onus of proof. His Honour's summing up and further directions given to the gury both as the result of sub- missions made by counsel and questions asked by the gury itself lacked balance and fairness,

over emphasised the strength of the Crown's case and failed adequately to put the appellants' cases. For those reasons the summing up and further directions were so unfair to the appellants that the trial had miscarried.

His Honour misdirected the jury by telling them that a statement made by the appellant Wurrawilya to the police officers that she was "paralytic

have regard for the purpose of determining whether that appellant was intoxicated at the relevant time.

(4) In the case of the appellant Wurrawilya his Honour erred in not leaving to the gury the question of provocation, It was submitted that 1n her case the jury should have been directed that the Crown was obliged to prove beyond reasonable doubt that the attack by her upon the deceased was unprovoked.

It is to be observed that grounds 3 and 4 concern only

the appellant Wurrawilya. The principal argument in the appeals concerned grounds 1 and 2. It 1s convenient to deal with them together. It 1s farst necessary to refer to the relevant parts of the summing up and the course the trial followed between the gury's first retirement at 10.48 a.m. on 30 October, 1981, and their return with verdicts of guilty at about 9 o'clock the same evening.

We refer firstly to his Honour's summing up. His Honour

gave the gury 2 clear direction that the onus of proof remained

throughout upon the Crown and that the standard of proof was proof beyond reasonable doubt. His Honour also gave the jury clear directions as to the elements of the crime of murder. He told them quite plainly that they had to be satisfied beyond reason-~ able doubt that at the time each of the apvellants inflicted blows upon the deceased, her acts in striking him were voluntary and that she intended eltner to kill him or cause him grievous bodily harm. His Honour also made it clear to the gury that, althougn drunkenness or intoxication was not a defence to the crime charged, it was a matter to be taken into consider-~- ation "in deciding whether the Crown has proved beyond reasonable doubt the voluntariness aspect and the intent of the accused", His Honour continued: "As experienced people of common sense you will know that intoxication can vary greatly 1n degree, and it affects different people in different ways. A person may be so intoxicated that his will is warped, his disposition altered, his self control weakened, so that whilst intoxicated he does an act voluntarily and intentionally, but 1t is an act that in a sober state he would never do, when a person is intoxicated to that extent his

explains his actions, has not destroyed his will or precluded the formation of the relevant

Yintent. Indeed, intoxication to this degree might well explain how an accused person, otherwise of good character and stable disposition came to commit the offence with which he is charged. Intoxi- cation might render an accused person less aware of what he is doing, or less aware

of the significance or the consequences of his actions, or more likely to be swayed by others, induced, influenced by others, but nevertheless his actions are voluntary, they are his actions, and if he intends to per- form them the drunkenness does avail him nothing. He may not even remember what he said or what he did, but that does not necessarily indicate either an absence of will or intent.

I repeat, it is very important that you understand this. Intoxication as such, does not provide an accused person with an excuse in law - no excuse for what he did but it is certainly a factor that you have to take into account in order to decide, as a matter of inference, whether his mind went with the act and whether the necessary intention to kill or inflict grievous bodily harm is proven,

You might think these accused seem to drink all day most days, but they still function all right, and they retain good recollection of what they have been doing."

There is no further material reference in the summing up to voluntariness, intention or intoxication. It is, accordingly, convenient to deal now with the only criticism which was made of this part of the summing up. The words upon which that criticism 1s based are, "ut nevertneless his sctions are voluntary, they are his actions, and if he intends to perform them the drunken- ness does avail him nothing". It was submitted that those words had the effect of running together and confus- ing the effect intoxication might have upon the two quite separate concepts of voluntariness and intent. The result was that the gury might not have had clearly in thear minds the need to be satisfied that the acts of striking were voluntary, that is the result of a conscious exercise of will on the part of each appellant, anda further, that at the time of those acts the appellants each intended to kill or inflict grievous bodily harm upon the deceased.

In our oplnion there was no misdirection. Earlier his Honour,as we have mentioned, had given the jury clear and correct directions on the matters of voluntariness and intent. His Honour had dealt with those matters quite separately and distinctly. He did not then mention the

effect which intoxication might have in relation to either.

When he came to deal with intoxication he did so for the purpose of explaining to the gury the place it should haye in their deliberations both as regards voluntariness and as regards intent.

A fair reading of all that he said on the topic does not,in our opinion, lead to the conclusion that he confused the two concepts. Desvite the use of the word "intends" in the passage complained of, he 1s there dealing, and only dealing,with voluntariness.

He 1s not dealing with intent. When he says thet 1f

a person intends to perform"the acts, he is referring to the infliction of the blows and is saying that if the person intended to perform such acts, his actions are voluntary. Drunkenness will then not avail a person claiming that the Crown has failed to establish that his will did not go with his actions.

That his Honour was not dealing with the relevant untent which the Crown had to establish 1s made perfectly clear in what later follows. He there drew a clear distinction between the two concepts and told the jury

that 1ntoxication was a factor which they had to take into

account in order to decide whether the necessary intention to k211 or inflict grievous bodily harm was proved.

His comment in the final part of the summing up which we have quoted was amply warranted upon the basis of what the appellants had said to the police officers and in their statements made at the trial. His Honour had earlier told the jury in plain terms that the facts were for them and thet if they disagreed with any observation upon the facts made by him, trey should disregard it.

It follows that if there were no more, we would con- clude that there had been no misdirection concerning voluntariness, intent, intoxicution or onus of proof.

We return to the course of the trial after the jury's first retirement at 10.48 a.m. In the absence of the gury counsel made submissions in which they asked for a number of further directions. Counsel for the appellant Herbert submitted that, although his Honour had put the prosecution case "very forcefully", his Honour had not, as we, understand the submission, put the defence case adequately.

There followed a lengthy discussion between his Honour and

counsel. Counsel's submissions were supported by counsel for the appellant Wurrawilya. In the upshot his Honour decided that he would give further directions.

These concerned the matters of intent and 1untoxication

and some other matters as well. The material part of

what he said to the gury on their return is as follows:

"Mr, Foreman, ladies and gentlemen, I have been asked by counsel - some counsel - to give you

some further directions in this case, and I propose to accede to their request. I am not going to delay you very long, but I have been asked by Mr. Abbott, for the accused, Herbert, to remind you of the defence of his client, Ngaire Herbert. Shortly, it is this, that although she did the act alleged against her - I withdraw that. Although she did an act, namely of wielding the pipe and hitting the man on the head, by reason of the ingestion of alcohol, she was too drunk to form the necessary intent to kill or inflict grievous bodily harm,

and therefore, so the argument runs, and so her case runs, she is not guilty of murder.

Now, I do not propose to say any more about it except just to remind you that the onus of proof is on the Crown and the standard is proof beyond reason- able doubt, Mr, Abbott's argument is that you cannot be satisfied beyond reasonable doubt that she had the necessary intent.

Mr. Avery has asked me to remind you that his client too says that by reason of her ingestion of alcohol and although she did an act, the necessary intention was missing 1n her case also, and tnat the Crown has not proved beyond reasonable doubt that she had the necessary intent to kill or inflict grievous bodily harm, So really he says that she was too drunk to inform (sic) the intent too.

Now would you please return to your jury room to consider your verdict."

There is no reasonable ground for complaint about anything that his Honour there said. Before putting his further directions to the gury his Honour discussed with counsel the substance of what he would Say. Counsel accepted his formulation of it. What he said was in accordance with that formulation. Before retiring his Honour asked counsel if there was "anything else", There was no response to his question. The time of the gury's second retirement 1s uncertain but was before 11.30 a.m.

In our opinion his Honour's further directions put paid to any suggestion that he did not adequately put the appellants! cases to the gury. Their cases were clearly and adequately put. It is convenient here to mention that complaint was made of language used by his Honour when putting the Crown case to the jury in his summing up. He said:

"Shortly put, the Crown case 1s this, and it is stark in these terms, because he would not give them his money, a drunken old cripple with 1 leg, was beaten to death in the beer garden of the Parap Hotel by means of repeated blows to the head with an iron bar and it was these 3 accused that did it",

Particular complaint was made about the words "a drunken

old cripple with 1 leg". It was said that these were emotive.

Perhaps they were, but factually tney were correct. We do not take the view that their use 1s something which should lead to the conclusion that the summing up was so lacking in balance or so unfair as to warrant a new trial.

We return to the course of the trial. Some time after their second retirement the gury returned with a request that certain evidence be read to them. That was done. It is not material to refer to the detail of the evidence of which they wished to be reminded. Nothing that his Honour then said or did was relied upon for the purpose of demons- trating imbalance or unfairness in the way that he ultimately left the case to the gury. After the evidence had been read the jury retired for the third time.

a note to nis Honour which was in the following terms:

a criminal act", The word "(some)" would seem to indicate that some only of the gury wished for further directions.

Before sending for the jury his Honour showed the note

to counsel, None wished to say anything except counsel for

the Crown whose submissions are not relevant for present purposes. When the gury returned his Honour read out the jury's note. He asked the foreman if that was the question and the foreman said it was.

"All right, well that might take me a little while, Mr. Foreman. I will not dilate upon

before tnat the intent has to be an antent to kill, or an intent to inflict grievous bodily harm, and that the onus is on the Crown to prove that fact as being the intent of the accused - the Same as any other fact 1n the case - it is an element of the crime of murder.

That fact cannot be proved by any method except by deduction from the known facts or the facts that you find to be established by inference or by conclusion and in drawing tne inference, or coming to a conclusion you take account of all the circumstances and 1f you think of the circum- stances 1n relation to any particular accused is that she was affected by alcohol, then you put that into the conundrum as to whether she was affected by alcohol to the point - or as to whether she had the necessary intention.

Now, in doing that, the observations I made to you were these. Drunkenness or intoxication is not of itself a defence to any crime. Self induced intoxication or drunkenness 1s never a defence to a crime. It is merely something that has to be put into the scales in determining whether you are satisfied beyond reasonable doubt about that particular element of the crime - in this case, the intent. And I said to you before and I repeat, that as experienced pecple you will know that intoxication varies greatly in degree and it also affects different people in different ways.

will is warped - his disposition altered - his self control weakened. So that whilst intoxi- cated he does an act voluntarily and intentionally, but it is an act that in a sober state he would never do. When a person is intoxicated to that extent his condition - although it contributes to the commission of the crime, and although it may explain his actions has not destroyed his will,

Indeed intoxication to that extent may well explain how an accused person, otherwise of good character and stable disposition came to commit the offence witn which he is charged. I guess we have all done things when we have been intoxicated, or affected by liauor to some greater or lesser degree which we might think about the next day and think, 'Well, I shouldn't have done that.' But nevertheless we did it and we had the intention of doing it at the time when we did it.

Intoxication might render an accused person less aware of what he 1s doing - or less aware of the significance or the consequences of what he 1s doing, or more likely to be swayed or influenced by others, but nevertheless his actions are his actions and if he intends to perform them then drunkenness is not a defence - it avails him nothing. And as I said to you earlier, you might not even remember the next day - you have all heard of alcoholic amnesia. A person may not even remember the next day what he did - how he got home - who drove the car - that sort of thing, but nevertheless tne fact that he does not remember does not necessarily indicate that he did not antend to do what he did.

So I gust repeat to you intoxication does not provide an accused person with an excuse in law. It 1s no excuse in law what the person did. It is simply something that you take into account in draw~ ing the inference or not drawing the inference that the person - in this case, these respective accused - in wielding the iron bar, had an intention to kill, or to inflict grievous bodily harm, and as I said to you earlier you might think that these accused seemed to function very well, whether intoxicated

"or whenever they are intoxicated - they seem to remember what they do and they seem to be able to give a good recollection of the events.

Now, unless I can help you further that is the way you put alcohol in the scale and you put drunkenness in the scale. I suppose tne first question for you is if you think they were - or in relation to each accused, do you think that they were so affected that they were incapable of forming an intent? Do you think they were so drunk that they did not know what they were doing? But you see, even in saying that, I think that is a too bland a description. As I say people do all sorts of things with the necessary intention, even though they might be pretty drunk.

Now, I think that 1s about as much as I should say to you, Mr. Foreman, ladies and gentlemen. Would you please retire now again and consider your verdict", The gury retired for the fourth time at 5.09 p.m. No relevant request for any alteration to what his Honour had said was made by counsel for any of the appellants.

A number of submissions were made about what his Honour then said. We prefer to leave dealing with these until we have completed the account of the course of the proceedings down to the time the gury returned witn verdicts of guilty of murder.

At 6.14 p.m. the gury returned to Court at his Honour's

request. He observed that the gury had retired some six

hours beforehand after making allowance for their return to

Court for further directions and for lunch. He told them that he was empowered to discharge them after a period of six hours if they had not reached agreement. He said that he was reluctant to discharge them and that he thought they should continue to endeavour to reach agreement. He asked the foreman whetner he thought there was a prospect of agreement. The foreman told him that the jury could not reach "consensus" on at least one point but expressed the view tnat agreement might be reached after more deliberation. His Honour then said: "Well, I only repeat to you that if you do not reach a verdict in tne matter because you are not unanimous it is a tremendous waste of time and funds and energy, and as I say the result is probably that the whole process will have to be gone through again and for the life of me I do not know why that should be necessary. All I can say 1s that individually you should be listening to the views of others and not gust being intract- able. As I said it is not the proper exercise of the duty cast upon an individual juror to simply be impervious to the view of the magority."

It should be mentioned that towards the end of his summing up his Honour had told the gury that during their deliberations they should discuss the matter fully amongst themselves and be prepared to listen to the views of other

gurors. He cautioned them against being stubborn and

said that he was encouraging them to "strive to reach unanimity". He had added, "Of course, if you do not reach agreement 1n an unanimous way in all probability these three accused will be tried again, so we go through tne whole process again",

After saying what he had in the passage earlier quoted his Honour told the gury that if they had not reached a verdict by 6.30 p.m. he would not take one before 8 p.m. He told them that arrangements would be made for them to be provided with a meal. At 6.20 p.m, the gury retired for the fifth time.

At 8.25 p.m. they returned, They had sent a state- ment to his Honour which was in the following terms, "The gury has reached a stalemate, as some members cannot reach consensus on the finer technicalities of alcohol warping judgment and therefore affecting the intent to cause or inflict grievous bodily harm", Prior to bringing the jury back the gury's note was shown to counsel. Counsel for the appellant Wurrawilya made some submissions but it is not material to refer to them.

"Well, Mr. Foreman, we are making something of a marathon out of this, but nevertheless it is important that you have further instructions if

that 1s what you want, I have received a note from you which says this:"

"I gather from that that you would like some more direction about that, Mr, Foreman?"

"Al] right. I think it 1s about time you started calling upon your personal experience. That is,your knowledge of yourselves and the knowledge of people generally. It would not avail an accused person anything to say, 'My judgment was warped! - talcohol warped my judg- ment' - using the words of the document you have gust given me - that is not what the criminal law 1s about.

Very frequently crimes are committed because a person succumbs to a temptation because of alcohol tnat they would not otherwise succumb to. It 1s not a question of whether the Judgment was merely warped - as I put to you earlier - 1t is a matter of whether the mind was so affected that you cannot be satisfied beyond reasonable doubt tnat the intention that you would otherwise infer from all the circumstances was gust never formed.

Do you remember the example I put to you about the man beating another man over the head with a piece of stick and saying, 'Hand it over.' Would it really make any difference to your conclusion aif you found out that the man who was wielding the stick was pretty intoxicated? You know, what I have told you earlier is that even though a person's judgment, balance, common sense, recognition of right and wrong, is affected by alcohol - where the person is less inhibited, that does not mean that the person cannot nevertheless have the intention to inflict the harm and in this case to kill or to inflict grievous bodily harm.

You might ask yourselves this - 1f you are satis- fied beyond reasonable doubt that the i1ndividual accused in this case wielded the iron bar, hitting Jan Drascoveic on the head - what other intention could they have had but to kill or to inflict grievous bodily harm? Would alconol induce some

"other sort of intention? Or would alcohol merely release them from the restraints that they might otherwise impose upon themselves

or might otherwise recognise as constraints as to whether they ought to wield the iron bar or not?

I do not think I can tell you anything more than that, ladies and gentlemen. It is nota question of having your judgment warped - I repeat to you what I said to you earlier. The fact that a person has some sort of diminished control of his action, or diminished sense of responsibility towards the deceased is enough (sic). That does not exclude the intent. The fact that a person's gudgment is affected - warped, in the terms of the document set out to me is not enough. That does not remove the intent. I do not want to read to you everything that I nave said to you before, but as I say 1f a person can say, 'I was drunk and therefore I didn't have the intent,' well you might as well give up prosecuting people in these courts, because guns, and weapons and alcohol are a lethal

combination and they are a very frequent combdination in case after case in the criminal area.

I do not think I can help you further - would you please retire, ladies and gentlemen".

We have placed the notation (sic) after the words "1s enough", but the plain sense of what his Honour was saying requires the word "not" to be supplied between the word "1s" and the word "enough",

The gury retired for the sixth time at 8.30 p.m. After they had done so his Honour asked counsel if there was anything

At 8.51 p.m. the gury returned with verdicts of guilty against each appellant. The jury had thus been out for a little over 10 hours but anclud- ing periods during which they were given lunch and dinner and were furtner directed either because of submissions by counsel or their own questions or requests.

If there has been a miscarriage of gustice in this case it occurred, in our opinion, when his Honour said wnat he did to the gury in response to their requests for further directions at 4,57 p.m. and 8.a5 p.m. Tne first of the requests which they made asked his Honour to explain to them "in explicit terms the guide- lines pertaining to alconol in relation to intent to commit a criminal act", Thus the request was for a further redirection on the question of how they should view the intoxicated condition of the appellants when determining wnether they were satisfied that the Crown had established the requisite intent. His Honour

proceeded to comply with the jury's request. In our

opinion there are tnree possible criticisms of what

seems to have left the question of intent and returned

to voluntariness about which the gury were apparently

not concerned, He speaks of the intoxicated condition

of a person not destroying his will. We do not, however, regard that, 1n the context of the entirety of what his Honour said, as significant. More important is what immediately follows wnen he speaks of alcohol not having "precluded his ability to form the intention". Ultimately the guestion 1s not one of ability or capacity to form

the recuisite intent; it is a question of the actual formation of that intent. It is true to say that ifa person is incapable of forming an intent, he will not

have the intent. But, if on the other hand, he is found to have capacity to form the intent, it does not necessarily follow that he in fact formed it. If the question of capacity to form an intent is to be put to a gury, they must also be left with the further question of whether,

notwithstanding capacity, if tney find it, they are

satisfied that the intent was in fact present; we refer to R. v. Garlick (1980) 70 Cr. App. Rep. 291 ana R. v. Kamipeli (1975) 2 .N.Z.L.R. 610. These remarks of his Honour must be read in the context of the entirety of what he said to tne gury at this time. In other passages his Honour has made the correct position quite clear,

But one needs also to consider what he has said in the second last paragraph (p.16 hereof). He there returned to the question of capacity - "do you think that they were so affected that they were incapable of forming an intent", This question was followed by anotner - "do you tnink they were so drunk that they did not know what they were doing". His Honour then left the gury with his remark about wnat he nad gust said being "too bland a description". He added, "as I say people do all sorts of things with tne necessary intention, even though they might be pretty crunk",

The gury were asked to continue their deliberations. They would have returned to the jury room with his directions about capacity to form the intent and whether tne appellants were so drunk that tney did not know whet they were doing as the last things of significance said

to them. Nevertheless those directions were sala to be

be said that neither of his Honour's questions would

have been of ultimate assistance to the gury in resolv- ing the critical question of whether the Crown had established that at the time the blows were inflicted

bodily harm to the deceased, Furthermore, both guestions are themselves so framed as to appear to throw the onus on to the appellants to prove positively that they did not have the capacity to form the intention or were so drunk that they did not know whet they were doing. In the light of what his Honour had earlier said so clearly about the onus being always upon the Crown that may not have been wnat the gury took from it.

What needs to be done is to look at the entirety of what his Honour said and to weigh up the impact it may have had upon the gury. Wedo not find it useful to come to any separate conclusion about what his Honour said at 4,57 p.m We prefer to rest our conclusion upon the con- sideration of all that occurred between 4.57 p.m. and the

time when the gury returned with verdicts of guilty of

murder. However, we do say, with great respect to his Honour, that his reference to capacity to form an intention and his last two questions, couched

as they were in language which seemed to thrust some onus on to the appellants, may have been the source of the jury's uncertainty expressed in their next request for directions which was dealt with over three hours later at 8.288 p.m. In between times there had been his Honour's exhortation for

At the outset two things need to be said about the terms of the gury's last request, The gury's note includes the phrase "alcohol warping gudgment". His Honour picked up the word "warping" and seems to have referred to it as if 1t were the gury's word, as in a sense it was. But the word had been used by his Honour in his original directions to the gury. He had said (p.6 hereof), "A person may be so intoxicated that his will is warped", He used the same words when he came to give the gury further directions at 4.57 p.m. (p.15 hereof). The express- 1ons he used come in turn from a passage in the

judgment of Barwick C.J. in O'Connor v. The Queen (1980)

Chief Justice has plainly been drswn upon by his Honour for the purpose of his summing up, and, of course, there could be no complaint about his Honour having followed such a course. But we think it important to take into account the fact that the word "warped" was first used by his Honour when one comes to consider what he further said to the jury at 8.25 p.m.

In what his Honour then said he has picked up the jury's reference to the word "warping" as an indication that their only concern was about the state of the law if all they found was some warping of the aopellants' judgments due to intoxication. We think there is a question as to whether this was a safe course to adopt. Because of his Honour's earlier use of the word, it may have been that it was the gury's way of directing his Honour's mind to the whole question of the effect intoxi- cation might have upon the formation of the relevant intent.

Secondly, the gury's note opened with the words, "The jury has reached a stalemate .....". That statement

was made after a retirement of almost 10 hours (including

breaks and interruptions) and after the foreman had informed his Honour some two hours earlier that the

gury were unable to reach "consensus on at least one point", In the light of their earlier request for an explanation "in explicit terms" of "the guidelines per- taining to alcohol in relation to intent ...."(p.13 hereof), it seems likely that the point whicn was troubling the jury at 6.15 p.m. was alcohol as it affected the formation of the relevant intent. Thus for a period of at least three and a half hours the gury were ina state of disagreement about the law on this matter and, for that reason, divided about wnat the outcome of the case should be. The matter which was troubling them was the very matter upon which the defence of the appellants was based. The two matters we have mentioned show that the situation was one which called for extreme care. Indeed, so it seems to us, his Honour ought at 8.25 p.m. have given serious thought to discharging the gury, especially bearing in mind the period for which they had been retired, If, as was the case, the decision was made to go ahead, the jury were entitled to a clear

redirection on the law which applied. It was contended

in argument that no more was required than a clear statement that the mere fact that a person's gudgment was warped by alcohol provided the appellants with no excuse or defence for what they had done, Taking the jury's statement literally, that may be true, although the use by the gury of the expression "finer technical- ities" militates against such a narrow view. Be that as it may,it is our opinion that the whole of the cir- cumstances of the case must be taken into account, To adopt such a confined view of the gury's request was, in our opinion quite unsafe.

His Honour's further charge to the gury should be read witn the matters we have mentioned in mind. With respect to him,we do not find in wnat he said the careful direction which was so obviously called for. Read as a whole his further remarks are an exhortation to convict the appellants. Their climax is the last statement (p.20 hereof):

"but as I say if a person can say, 'I was drunk and therefore I didn't have the intent,' well you might as well give up prosecuting people in these courts, because guns, and weapons and alcohol are a lethal combination and they are a very frequent combination in case after case in the criminal area."

Earlier his Honour had asked rhetorically (pp.19~20

" You might ask yourselves this - if you are satisfied beyond reasonable doubt that the individual accused in this case wielded the iron bar, hitting Jan Drascoveic on the head - what other intention could they have had but to kill or to inflict grievous bodily harm? Would alcohol induce some other sort of intention?" Tne last question 1s quite inapt. The relevant effect which alcohol may have had, may have been such that the appellants may not have formed the requisite intention at all. If that were tne gury's view, they were bound, by reason of the doubt that in that event they must have had, to acquit tne aopellants of murder, There are other matters to which reference could be made to show that his Honour's further directions were in all the circumstances inadequate and inappropriate for what was then required. We do not go to the detail of them because it is tne 1mpact of what the jury were told taken as a whole which ought to be considered,

We do, however, mention one passege which was the subject of severe criticism in the submissions of senior counsel for tne appellant Sampson. We mention the matter because we do not accept the criticism which was made.

The passage 1s that in which his Honour said (p.19 hereof): "it is a matter of whether the mind was so affected that you cannot be satisfied beyond reasonable doubt

that the intention that you would otherwise infer from all the circumstances was just never formed."

We do not think that the criticism made by counsel 1s warranted because all that his Honour 1s saying is that the intention which might well be inferred 1n a case where there was no evidence of intoxication, might not be inferred where there was evidence of it.

However, for the reasons earlier given we are satisfied that the matter was left to the gury, particularly by reason of what his Honour finally said to them at 8.25 p.m., in a way which exhorted tnem to convict and did not give them that assist- ance and balance which was so plainly required. No more tnan 20 minutes later the gury had reached their decisions to convict each of tne appellants. We

the first, ground of appeal should be upheld. Although his Honour's earlier directions about intent and the effect of alcohol upon the formation thereof contained no error, the same cannot be said in relation to

his Honour's directions given at 4.57 p.m. and 8.25

have already been stated (pp.23-24). What he said at 8.25 p.m. exacerbated the position.

Once one takes the view, as we have done, that the gury were entitled, at 8.25 p.m., to be fully directed in relation to alcohol ane intent, it must follow that what his Honour then said was in all the circumstances inadequate. If, as we think should be done, what his Honour saié at 4.57 p.m. is read together with what he said at 8.25 p.m., one 1S reinforced in the conclusion that the directions given the jury in response to their

Foreseeing that this might be the view which the Court would adopt, counsel for the respondent nevertheless submitted that we ought not to be satisfied that there had been any

principle which should be applied was that a new trial should be granted if the appellants may, by what his Honour has done, have lost a chance which

was fairly open to them of being acquitted; see Mraz

v. The Queen (1955) 93 C.L.R. 493, per Fullagar J. at p.515; Driscoll v. The Queen (1977) 137 C.L.R. 517, per Barwick C.J. at p.524; and Duff v. The Gueen (1979) 28 A.L.R. 663 at p.674, Counsel for the respondent supported his submission by an extensive review of the evidence in the case. He demonstrated, in our opinion, that the Crown case was a very strong one. In relation to the issue of intention he referred us to statements made by the appellants to the police officers who investigated the crime, to the records of interview of two of the appellants and to the statements made by the appellants at the trial. These all tend to indicate, as the learned trial gudge emphasised repeatedly to the gury, that the appellants each had a clear recollection of the events of the night in question and of what their own parts in those events were.

We have taken all these matters into account. But there 1s substantial evidence and other material which,

if accepted by the gury, would have established intoxication

having been in the earlier stages of the summing up

safely reach the conclusion that the appellants were

convictions cannot, therefore, in our opinion stand. Counsel for the appellants Herbert and Wurrawilya

convictions of manslaughter in respect of each appellant.

Senior counsel for the appellant Sampson did not join

in that submission, although he did not opvose that

course being taken. Counsel for the respondent strongly

opposed substituting convictions of manslaughter for

were of opinion that the convictions of murder ought

not to stand, there should be a new trial. His sub-

mission was based on the strength of the Crown case,

particularly upon the various statements made by the

triul which do suggest that the appellants each had

a Clear recollection of the events leading up to the Killing and a clear awareness at that time of what they were doing. From this evidence it was well open to a jury to conclude that the Crown had proved beyond reasonable doubt that they intended to kill or inflict grievous bodily harm upon the deceased,

Having given the matter due consideration, we have reached the conclusion that the submission made on behalf of tne Crown should be accepted and that there should be a new trial.

Our conclusion in this regard makes it unnecessary to deal with the remaining grounds of appeal. However, we are of the clear ovinion that his Honour did not err when he failed to leave tne issue of provocation to the gury. There is no special statutory provision in force in the Northern Territory so that the common law applies. It is stated conveniently 1n Parker v. The Queen (1964) A.C. 1369 at p.1392. Before the 1ssue is left to a jury the case must contain some reasonable evidence of provocation,

that is some evidence fit for the consideration of the

jury. In our opinion this was not such a case. We are of cpinion that his Honour's statement

that what the appellant Wurrawilya said to the police

-concerning her intoxicated condition not being any

evidence of that condition was erroneous. It runs counter,in our respectful opinion,to what was said by Gibbs J. (as he was) in Lopes v. Taylor (1970) 44 A.L.J.R. 412 at pp.421-422, and to the decision of the Court of Criminal Appeal in England in Reg. v. Duncan (1981) 73 Cr. App. R. 359. We refer also to Herbert v. Benson (1942) 44 S.R. (N.S.W.) 382 per Jordan C.J. at p.383. We would prefer to leave open the question of whether, if this had been the only misdirection, the trial would have miscarried,

allowed, the convictions for murder set aside and a new

trial ordered to take place at such time and place as the

I certify that this and the 34 preceeding pages are a true copy of the reasons for decision of their HOnours Justice Toohey and Justice Sheppard.

NORTHERN TERRITORY DISTRICT REGISTRY No. NTG 34,35 & 36 of 1981

Coram: Toohey, McGregor, Sheppard JJ. Date : 30 July 1982 McGREGOR J REASONS FOR JUDGMENT

These are appeals by NGAIRE HERBERT, PAMELA SAMPSON and

RHODA WURRAWILYA (appellants) against their conviction for murder in the Supreme Court of the Northern lerratcry on 30 October 1981 and sentences of life imprisonment on 10 November 1981.

The Crown case was that on 29 May 1981 the appellants were drinking at the Parap Hotel in Parwin with Jan Draskoveic. They decided to rob him. Each of them struck him about the head several times with an iron bar causing his death within a short time. The Crown also relicd upon the actions of the appellants as having been a joint enterprise which they carried out with a

common purpose. The evidence against the appellants consisted of

an eye witness, admissions made verbally and, in the case of the

appellant, Sampson and Warrawilya, in signed Records of

Interview. The appellants in admissions made verbally and

Records of Interview, claimed they were drunk at the time they struck Jan Draskoveic. The eye witness' account supported this. It us not disputed that all appellants were affected by intoxicating liquor at all relevant times.

Each of the appellants made a statement from the dock in

which they gave account of events at the Hotel on the relevant

night, that, in effect, they were drunk, and though the expression varied, that they hit the deceased with an iron pipe, that they did not mean to hurt him. The appellants Herbert and Sampson said that the appellant Wurrawilya made them do it, 1.e. hit the deceased; but this was denied by the appellant Wurrawllya. The last named appellant also gave a version of events whereby she referred to the deceased having called her a "black bitch" and a "slut" and swearing at her whereafter she got

The appellants, without objection, were given leave to rely on grounds of appeal other than or in addition to those originally taken. These have been set out in what amount to

amended Notices of Appeal and are before us. Grounds as filed

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (563 paragraphs)

Cited By (1)