Criminal law and procedure - Matters connected with conduct of defence - Leading question asked of defence witness by defence counsel - Trial Judge wrong in refusing to allow question to be put to witness - No miscarriage of justice

Criminal law and procedure - Sentencing - Offences against the person - Unlawfully doing grievous bodily harm with intent to maim, disfigure or disable - Sentence of 12 years' imprisonment not outside the range of a sound discretionary judgment

Bockfuss v The Queen, unreported; CCA SCt of WA; Library No 950063; 22 February 1995

GPI Leisure Corporation Ltd v Herdsman Investments Pty Ltd [No 3] (1990) 20 NSWLR 15

Green v The King [1939] HCA 4; (1939) 61 CLR 167

R v Allen, unreported; CCA SCt of NSW; No 60038/1992; 1 December 1992

R v Ames [1964] NSWR 1489

R v Coventry [1997] TASSC 142; (1997) 7 Tas R 199

R v Lawless [1974] VicRp 49; [1974] VR 398

R v Lowrey [No 3] [1972] VicRp 109; [1972] VR 939

R v O'Leary [1946] SASR 175

1 KENNEDY J: I have had the benefit of reading in draft the reasons to be published by Steytler J. For the reasons which his Honour gives, I agree that the appeal against conviction should be dismissed and although leave to appeal against the sentence should be allowed, that appeal should also be dismissed.

2 STEYTLER J: This is an appeal against conviction and an application for leave to appeal against sentence.

3 The appellant was convicted by a jury on a charge of unlawfully doing grievous bodily harm to his wife, Roia Minhaj, with intent to maim, disfigure or disable her. He was acquitted on an alternative charge of attempted murder of his wife. He was sentenced to a period of 12 years imprisonment with eligibility for parole.

4 The appellant was found by the jury to have deliberately set his wife alight after throwing mineral turpentine over her.

5 The appellant and his wife had been married for some seven years. They lived at 12 Tenby Close, Merriwa with their four small children. On the night of 4 December 1997 they returned home at about 10.00 or 11.00 pm after visiting relatives. The complainant took her children to bed and then went to bed herself. During the course of the night she was woken up by her seven month old daughter and proceeded to breast feed her while the appellant lay beside her watching TV.

6 The complainant said that an argument developed and that the appellant struck her, causing her nose to bleed. At about that time her three year old son woke up and, while still breast feeding her daughter, the complainant took her young son to the toilet. The complainant said in evidence that, while she was in the toilet, the appellant said that he was going to kill her and get rid of her once and for all and she heard him go into the kitchen where she could hear drawers opening and shutting. She said that he returned to the toilet and looked at her and said, "You don't believe me, do you, that I will kill you?". He had with him a bottle of mineral turpentine. He opened the bottle and poured the liquid down her left side from the top of her shoulder. She was wearing a top and a skirt. Most of the liquid was absorbed by her clothes but some of it fell upon the toilet floor. She tried to get out of the toilet. However the applicant lit a match and threw it at her. Her left side caught alight as did the toilet floor.

7 The complainant said that she managed to get out of the toilet and put her infant daughter down on the bed. She yelled at the appellant to get her son out of the toilet and then ran out of the hallway. She said that the appellant asked her not to call the police and then poured the remaining turpentine down the sink and told her that there was nothing left and that even if she did call the police "they wouldn't find out". She said that she telephoned the appellant's brother and his wife and that she told her sister-in-law that the appellant had poured acetone on her and burnt her. She then stood beneath the shower to put cold water on her burns. She said that during this time the appellant kept asking her not to call the police because if she did so she would split the family and he was sorry for what he had done. However while she continued to shower she heard the appellant laughing out loud and when she asked him what was going on he said that he was crazy and that if they asked him why he did it he would tell them that he was crazy.

8 She said that not long thereafter her brother-in-law arrived and hit the appellant, telling him that he did not know why God had given him a wife and a son and that he was "not worth it". She said that the appellant replied by saying, "I went crazy. I killed her. I don't know what happened."

10 The appellant had helped the complainant to put out the flames and in so doing suffered some burns to his hands with the consequence that he required treatment as well.

11 The appellant denied, at the trial, that he had set his wife alight. He said that she had been working in the kitchen and that she had somehow managed to set her veil alight and that it was this which caused her ensuing injuries. He denied having harmed his wife and said that he had never threatened to kill her. He relied upon the fact that the complainant herself told others at the hospital and, indeed, some of her relatives, that she had caught fire while warming the baby's milk on the stove.

12 It is plain that the jury accepted the complainant's evidence and rejected that of the appellant.

13 There are, so far as the appeal against conviction is concerned, five grounds of appeal.

14 The first two grounds of appeal relate to photographs of the injuries suffered by the complainant which were tendered in evidence.

15 Counsel for the appellant objected to their tender upon the basis that their content was so shocking as to give to them a prejudicial value which exceeded their probative value. That objection was overruled by the learned trial Judge and it is this which has given rise to the first ground of appeal. The second ground of appeal relates to the direction which the learned trial Judge gave as regards the use to which the photographs might be put by the jury. His Honour said, in this respect, that:

"Those photographs I think are 12 in number. You have seen them from a distance; a bit closer yesterday when some of them were referred to by Mr Mactaggart. In the jury room you will be able to look at them individually close up. Those photographs are unpleasant. They are probably distressing. They show injuries of the sort that fortunately most of us, perhaps all of us, have not seen before. They are tendered not to horrify you or to alarm you or cause you concern. The purpose of their tender is part of the evidence; as part of the evidence to assist you in deciding some aspect of the case. They were admitted because you may find them helpful to show the extent of the burns, the pattern of the burns, the location of the burns.

You may find that the photographs will help you in deciding whether the burns were caused by the setting alight of liquid that had been poured over the complainant, as opposed to catching fire of clothing at a gas stove. That is the sole purpose of the photographs, members of the jury, to assist you in deciding some objective fact or facts that might assist you in arriving at your conclusion. It is important that you approach the photographs in that way. If you adopt this clinical approach, if I might call it that, it will help you. Think about where the burning is. Look at the nature of the burning; whether in the light of the evidence that you have heard it is consistent with the Crown case or the explanation that is suggested to you on behalf of the accused. It is important that you should not allow it [sic] otherwise to influence you."

16 The appellant contends that the photographs could not have been used by the jury to assist them in deciding the issue referred to by the learned trial Judge and that his Honour's directions served only unnecessarily to draw the attention of the jury to the photographs.

17 Expert evidence in respect of the burns had been given by Mr David Tranthim-Fryer, an experienced forensic chemist. He said that upon ignition the flame from mineral turpentine would spread very quickly with flames appearing wherever the liquid happened to be.

18 There was no contest as to the fact of the burns, nor as to their extent and location. However the expert evidence to which I have referred was necessary, inter alia, because of the dispute as to the cause of the burns. That evidence assisted the jury in answering the question whether the extent and location of the burns were more consistent with the ignition of mineral turpentine poured down the applicant's left side from the top of her shoulder or the catching alight of her clothing while she was heating milk. The best evidence of the nature and location of the burns was, of course, the photographs. They assisted the jury in understanding and evaluating the expert evidence and in answering the question of fact which was posed for them. That being so, they were plainly of probative value.

19 I am not persuaded that this probative value was overridden by any prejudicial value attaching to the photographs (as to which see, for example, R v Murdoch (1987) 37 A Crim R 118 at 126 - 127 and R v Telford (1996) A Crim R 427). There is no doubt that they are graphic and distressing. They show the full extent of the complainant's burns at a time when they had been freshly made. However they are, in my opinion, no more distressing than might have been anticipated. Where photographs are of material assistance to a jury in determining an important question or important questions left for their decision it will ordinarily be difficult for a defendant successfully to contend that the jury should not be allowed to see them merely because of their graphic or distressing nature. It will be most unlikely, in such a case, that their prejudicial content would be sufficient to outweigh their probative value. This was, in my opinion, such a case. The photographs were, as I have said, of material assistance to the jury in deciding what had caused the burns and that question was, in turn, central to the innocence or guilt of the appellant.

20 I am consequently not persuaded that the learned trial Judge made any error in admitting them into evidence.

21 Nor am I persuaded that there is any substance to the second ground of appeal. The learned trial Judge made it plain that the photographs were tendered only to show the extent, pattern and location of the burns for the purpose of assisting the jury in deciding what had caused them. His Honour said that if the members of the jury approached the photographs in that way that "clinical approach" might help them (as to which cf R v Harbach (1973) 6 SASR 427 at 435). He said that it was important that they should not allow the photographs otherwise to influence them.

22 There is, in my respectful opinion, no error in these directions. I am unable to accept the submission, advanced on behalf of the appellant, that his Honour invited the members of the jury themselves to form expert conclusions which they were not qualified to form. Rather, he invited them merely to consider the nature and extent of the burns in deciding the factual issues left for them in the light of the expert evidence. That was, in my opinion, an entirely appropriate direction. It follows, of course, from what I have said in this respect that I do not accept that his Honour's direction served only unnecessarily to draw the attention of the jury to the photographs.

23 I would consequently not uphold either of grounds 1 and 2 of the grounds of appeal.

24 Grounds 3 and 4 each challenge rulings made by the learned trial Judge in declining to allow defence counsel to put a particular question to a defence witness.

25 I have earlier mentioned that the complainant, in the course of her evidence, said that when the appellant's brother arrived on the scene the appellant said to him, "I went crazy. I killed her. I don't know what happened". The appellant's brother, when he gave evidence on behalf of the defence, was asked whether the appellant had said anything to him when he first arrived. He responded by saying:

"I didn't remember too much but when I ask him what happen he said, 'I don't know what happen. I was asleep and she came with her clothes on fire. I try to distinguish [sic] it' or something like this, but he didn't tell me anything what happen and also she didn't say anything."

26 The appellant's brother was asked whether the appellant had said to him that he had gone crazy and "killed" the complainant. The Crown prosecutor objected to that question as being one of a leading nature. After some discussion the learned trial Judge said that his impression "at the moment" was that although the question was one which might be appropriate for cross-examination it was not appropriate for examination-in-chief and that, if the appellant's then counsel wished to argue that his Honour's impression was wrong, the matter would have to be further discussed. The appellant's then counsel responded by saying that he did not wish to argue the matter further but would "leave it at that".

27 While it was conceded, at the appeal, that the question was one which should have been allowed (see Courteen v Touse [1807] EngR 54; (1807) 1 Camp 43; 170 ER 869 and "Cross on Evidence" 5th Aust ed par 1755) I am not persuaded that his Honour's ruling (and it was only a provisional ruling in respect of which the then counsel for the appellant declined to make any further submissions) led to any miscarriage of justice.

28 While the then counsel for the appellant wished, no doubt, to obtain from the witness a direct contradiction of the evidence of the complainant in the respect referred to, that objective had, in my opinion, already been achieved. The evidence of the appellant's brother was directly inconsistent with that of the complainant. If he was, as he said, told by the appellant that the appellant did not know what had happened, that he had been asleep and that he saw his wife come in with her clothes on fire he could hardly have said, as the complainant said he did, that he had gone crazy and killed his wife. There was consequently no need for any further contradiction.

29 That, in my opinion, disposes of ground 3 of the grounds of appeal.

30 Next, as regards ground 4, the complainant said during the course of her evidence (and no objection was taken to this evidence at the trial and nor was any point raised in respect of it on the appeal) that when she spoke to her sister-in-law on the telephone to ask her and her husband to take her to the hospital she told her sister-in-law that her husband had "poured acetone on me and ... burnt me".

31 Her sister-in-law, when she gave evidence, said that when she answered the phone she heard crying "like a female and man crying". She said that she recognised the voices of the appellant and the complainant. She was asked what was said to her and she responded by saying: "They were asking for help and they wanted ... from us help. They were saying, 'we burnt'."

Can you remember the words they used?--They were saying, like, 'We burnt.' They didn't say anything else, just they wanted help from us and they said, 'We burn.' I was thinking that their house is burn and then for this reason I call fire brigade.

Alright. Just wait for a moment. Who was saying, 'We burn,' and 'We want help'?--Both of them.

Were there any other words used besides, 'We burn' and 'We need help' or whatever?---No, they just wanted help and they said, 'We burnt' - nothing else.

33 At that point counsel for the appellant wished to put to the witness the words which the complainant had said had been spoken by her to her sister-in-law. The Crown Prosecutor objected upon the basis that the question was leading and that objection was upheld by the learned trial Judge.

34 Once again it has been conceded that the question should have been allowed. However I am not persuaded that the failure to allow it led to any injustice. The purpose of putting the question was, according to counsel for the appellant, that of hoping to secure a direct contradiction of what had earlier been said by the complainant in the respect to which he referred. However it seems to me, once again, that that objective had already been achieved. The appellant's sister-in-law had said that nothing else had been said to her than that the complainant and the appellant had said that they were burning or had burned and needed help. That was directly inconsistent with the evidence of the complainant to the effect that she had said that her husband had poured acetone on her and burnt her.

35 I would consequently not uphold this ground of appeal either.

36 The remaining ground of appeal against conviction is one to the effect that the learned trial Judge erred in law in failing to point out to the jury that the complainant, in a statement made by her to the police, had not said that the appellant had threatened to kill her in those words, being words which she attributed to the appellant during her evidence-in-chief.

37 What was said by the learned trial Judge to the jury in this respect was as follows:

"You will recall that under cross-examination it was pointed out to the complainant that in the written statement which she made to the police on 16 December, which was dated I think 17 December, she does not speak of her husband's threatening to kill her on the night in question. You will recall that ... [the then counsel for the appellant] referred to this aspect of the matter in the course of his address yesterday afternoon. You will recall, however, that when the matter was pointed out to her while she was in the witness box and under cross-examination the complainant referred to a passage in the statement in which she alleges that the accused told her that he would slash her throat. She went on to say to you that it was just the same as killing, his saying that he would kill her.

It's a matter for you, members of the jury. Does someone saying, 'I will slash your throat' mean much the same as attempting to kill? You may think it is a more dramatic way of saying much the same thing. That's a matter entirely for you."

38 Counsel for the appellant contends that the effect of what was said by the learned trial Judge to the jury was to direct the jury's attention away from the challenge by defence counsel to the complainant's credibility.

39 I am unable to accept that submission. There is no attack on the accuracy of what was said by his Honour as regards the fact of the alleged contradiction. His Honour, in my respectful submission, was entirely correct in drawing the alleged contradiction to the attention of the jury and inviting it to consider whether or not there was a material distinction between an allegation, on the one hand, that the appellant had threatened to kill the complainant and one, on the other hand, to the effect that he had said that he would slash her throat.

40 Moreover, the learned trial Judge went on to say, immediately after the passage which I have quoted above, the following:

"It is appropriate that you bear these matters in mind when considering the credibility of the complainant. She gave, according to her, a false story in the beginning and changed the story about a week later. The statement which was taken from her by police officers is a little different in some respects from what she said to you in the witness box. Does that cause you to doubt her credibility or is that consistent with her telling the truth while she was in the witness box for you? That's a matter entirely for you, members of the jury."

41 It seems to me to be quite plain from this that, far from directing the jury's attention away from the defence challenge to the complainant's credibility, the learned trial Judge directly invited the jury to consider whether the alleged contradiction was a matter which affected her credibility.

42 I would consequently dismiss this ground of appeal also.

43 That leaves only the application for leave to appeal against sentence.

44 There is only one proposed ground of appeal in this respect. That is to the effect that the learned sentencing Judge imposed a sentence that was excessive in the circumstances of the case as a consequence of his failure properly to consider:

(b) the standards of sentencing customarily observed for offences of this nature;

(c) the place which the criminal conduct in question occupies in the scale of seriousness of crimes of this nature, and

(b) ... [the appellant's] personal circumstances."

45 Counsel for the appellant contended that the sentence of 12 years imprisonment imposed by the learned sentencing Judge was more akin to a sentence imposed for an offence of attempted murder than that of which the appellant was convicted. He also contended that it is not possible to say, from the learned sentencing Judge's sentencing remarks, what mitigating factors were taken into account. Those which should have been taken into account and which, on the appellant's contention, should have resulted in a lesser sentence, were that the crime was unplanned and unpremeditated, that the appellant assisted the complainant shortly after the commission of the crime by way of the rendering of assistance with the extinguishment of the flames and telephoning for assistance and the fact that there was nothing in the appellant's antecedents which told against him or which demonstrated any predisposition to reoffend.

46 As to this last contention, it is plain from the learned sentencing Judge's comments that he took into account the antecedents of the appellant. He referred to the appellant's background and to various difficulties which he had encountered in the course of his youth, encompassing imprisonment for political reasons, torture and the fact that he was subjected to physical and emotional abuse.

47 It is also obvious that his Honour took into account the fact that the crime was unplanned and unpremeditated (although, it must be said, the appellant did not act entirely on the spur of the moment, having had time to open and close a few drawers while apparently looking for the means by which to harm the complainant). His Honour said in that respect that the appellant had attacked his wife "in a blind rage".

48 His Honour also took into account the fact that the appellant had assisted the complainant immediately after he had set her alight. He specifically mentioned, in that respect, that the appellant had helped the complainant to put out the flames and that, in doing so, he had suffered burns to his hands which required him to be treated in hospital for about 11 days.

49 I am consequently not persuaded that there was any mitigating factor which should have been taken into account by the learned trial Judge but which was overlooked by him.

50 That leaves only the question whether the sentence imposed by the learned sentencing Judge was manifestly excessive to the point where it exceeded a sound discretionary range, that being the proposition raised by grounds 1(a), (b) and (c).

51 Counsel for the appellant referred, in support of his proposition that the sentence was excessive when compared to those ordinarily imposed in cases of this kind, to the cases of Wicks v The Queen (1989) 3 WAR 372, Bell v The Queen (1992) 62 A Crim R 66, R v Kerr, unreported; CCA SCt of WA; Library No 970402; 15 August 1997 and King v The Queen [1999] WASCA 9.

52 The first of those cases, that of Wicks, involved an appeal against the sentence imposed in respect of a conviction for manslaughter. The appellant had been involved in a brutal killing whilst intoxicated. He bashed his victim with a piece of concrete and then, after obtaining a knife from a nearby vehicle, went back to the deceased, stabbed him twice in the chest and cut his throat. The learned sentencing Judge had sentenced him upon the basis that he killed the deceased "in a drunken frenzy ... without any intent". He also took into account that the appellant had returned to the scene of the crime in circumstances which suggested that he was going to give himself up. The appellant was then aged 23 and had one previous conviction for drunken driving. His antecedents were excellent. He was found to be vulnerable to a condition known as hypomanic excitability which is a state of excitability so intense as to be considered outside the range of normal behaviour in situations of provocation (although there had in fact been little provocation), especially if his self control was reduced by the ingestion of alcohol. The sentencing Judge took the view that a proper sentence was one of 15 years imprisonment but, as the appellant had been in custody for 10 months, he reduced this to a term of imprisonment of 13 years and 6 months. This sentence was upheld by the Court of Criminal Appeal which considered that the circumstances of the offence were such as to justify a penalty at the upper end of the range. The maximum penalty then provided for the offence was one of 20 years.

53 The case of Bell involved an appeal against the sentence imposed on a conviction on a charge of attempted murder. The appellant had discovered that his wife had been having an affair with another man. This led to a dramatic deterioration in the relationship between himself and his wife to the point where the two separated and his wife obtained a restraining order against him. Obsessed by his marital situation the appellant decided to kill her. With that in mind he broke into the home in which she lived with her three children. She was, at the time, asleep in bed. She awoke when the appellant was about to stab her in the chest. She struggled with him and was aided in this by her children. After a short struggle the appellant desisted and threw the knife at the wall. When asked to leave he walked out of the bedroom and telephoned the police. He was remorseful and concerned at the cuts which had been inflicted upon his wife's hands in the course of the struggle. However, were it not for the courage of one of his children he would very probably have succeeded in killing his wife. Moreover the attempt to kill her was planned. He was sentenced to a total period of 10 years imprisonment.

54 The Court of Criminal Appeal upheld that sentence on the appeal. Ipp J, with whom Malcolm CJ and Owen J were in agreement, referred to a series of English cases. His Honour said (at 71) that it was difficult to discern a definite range from these cases but that it could perhaps be said that, in England, a term of imprisonment of not more than 10 years will usually be imposed for serious cases of attempted murder arising out of domestic relationships. However his Honour pointed out that this was not an inflexible rule and that "the limitation on the term of imprisonment has not been brought about by any application of principle but simply because of a pattern of sentencing that has developed". His Honour also noted (ibid) that "In those cases where a lesser sentence has been imposed, the offender has generally acted in the heat of the moment or under a degree of diminished responsibility".

55 The case of Kerr was one of attempted murder. The accused, while intoxicated, had attempted to kill his de facto wife by shooting her in the head through the eye with a bullet fired from a .22 calibre rifle. The Court of Criminal Appeal, on a Crown appeal, substituted for a sentence of 8 years imprisonment one of 10 years imprisonment.

56 The case of King involved a Crown appeal against a sentence of 4½ years imprisonment imposed on a conviction on a charge of having done grievous bodily harm with intent to maim, disfigure, disable or do some grievous bodily harm. The appellant had severely beaten his victim in an unprovoked attack outside a nightclub. The victim's face was so badly bashed that he ultimately lost an eye. He was also required to undergo plastic surgery. The appeal was upheld. The Court of Criminal Appeal considered that an appropriate starting point in sentencing the appellant, having regard for the fact that it was a Crown appeal, was one of 7 years. It reduced this figure to 6 years after taking into account matters in mitigation.

57 While the sentence imposed in this case was undoubtedly severe and while it was higher than that imposed, for example, in the cases of Bell, Kerr and King I am not persuaded that there is anything in any of the cases to which we were referred which should lead to the conclusion that it was outside a permissible range.

58 The sentence imposed was significantly less than that imposed in Wicks (albeit it must be acknowledged that that case involved a particularly brutal killing). While the sentence was more severe than that imposed in Bell the court there pointed out, as I have said, that there is no inflexible rule in cases of the kind there referred to and, in effect, that each case will turn upon its own circumstances (see 71). As to Kerr and King, the sentences there imposed were, as I have said, imposed by the Court of Criminal Appeal in the context of Crown appeals.

59 In the end each case must, of course, turn upon its own facts and circumstances. The sentence imposed in this case must be seen in a context in which the offence of which the appellant was convicted, while not as serious as one of attempted murder, was nonetheless particularly serious, involving an intention to maim, disfigure or disable. Moreover the offence carries a maximum sentence of 20 years imprisonment.

60 This was a cruel act involving some, albeit very brief, premeditation. The complainant was very seriously injured. She has suffered a gross and permanent scarring of her body and face. Not surprisingly, evidence presented during the trial indicates that she will suffer possible psychological damage. Moreover, the appellant threw the mineral turpentine over the complainant at a time when she was carrying her seven month old child and in circumstances in which her three year old son was standing next to her.

61 The appellant, notwithstanding his abhorrent conduct, has shown no real remorse. While he was, of course, entitled to put the Crown to proof of its case, he challenged, in the course of the trial, the complainant's credibility and suggested that incriminating and inculpatory evidence had been fabricated against him.

62 Also, while the appellant did assist the complainant after setting her alight he also urged her not to report him to the police and told her that she would not be believed.

63 In all of these circumstances I am not persuaded that the sentence of 12 years, while undoubtedly severe and at the upper end of the scale, was outside the range of a sound discretionary judgment or that his Honour made any error of a kind warranting appellate interference with his discretionary judgment (as to which see Lowndes v The Queen [1999] HCA 29; (1999) 73 ALJR 1007 at 1014).

64 I would consequently allow the application for leave to appeal against sentence but dismiss the appeal.

65 WHEELER J: I have had the advantage of reading in draft the reasons for decision of Steytler J. I agree and have nothing to add.