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[2022] QCA 77
General information, not legal advice.
Court of Appeal (Qld)
2022-05-17
Morrison and McMurdo JJA and Kelly J
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: R v Beauchamp [2022] QCA 77
PARTIES: R / v / BEAUCHAMP, Craig Ross / (appellant/applicant)
FILE NO/S: CA No 124 of 2021 / DC No 112 of 2021
DIVISION: Court of Appeal
PROCEEDING: Appeal against Conviction & Sentence
ORIGINATING COURT: District Court at Toowoomba – Date of Conviction and Sentence: 1 June 2021 (Barlow QC DCJ)
DELIVERED ON: 17 May 2022
DELIVERED AT: Brisbane
HEARING DATE: 18 February 2022
JUDGES: Morrison and McMurdo JJA and Kelly J
ORDERS: Allow the appeal.Set aside the convictions.Order that the appellant be re-tried on counts 1 and 2.
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where the appellant was convicted of two counts of unlawful wounding – where the counts arose out of a struggle between the appellant and the complainant in which the complainant was injured by a knife that was held by the appellant – where the relevant act for which the appellant was alleged to be criminally responsible was the insertion of the knife in the complainant’s abdomen or arm – where it was necessary for the judge to direct the jury on the application of s 23(1)(a) of the Criminal Code (Qld) concerning unwilled acts – whether the directions given by the trial judge were likely to have misled the jury – whether there was a miscarriage of justice / CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where the appellant was convicted of two counts of unlawful wounding – where the prosecutor led evidence that the appellant was offered a formal interview, in which he declined to participate – where the jury was not permitted to use the appellant’s exercise of his right to silence in any way which was adverse to him – whether the trial judge should have given a direction about the appellant’s unwillingness to be formally interviewed by police – whether there was a miscarriage of justice / Criminal Code (Qld), s 23(1) / Gately v The Queen (2007) 232 CLR 208; [2007] HCA 55, cited / R v Falconer (1990) 171 CLR 30; [1990] HCA 49, cited / R v Reeves (1992) 29 NSWLR 109, cited / Ugle v The Queen (2002) 211 CLR 171; [2002] HCA 25, cited
COUNSEL: K Prskalo for the appellant/applicant / S Cupina for the respondent
SOLICITORS: Legal Aid Queensland for the appellant/applicant / Director of Public Prosecutions (Queensland) for the respondent
MORRISON JA: I have had the advantage of reading the draft reasons of McMurdo JA. Whilst I agree in the proposed orders my reasons for doing so differ in some respects, as I will explain.
I am able to adopt the synopsis of the case and the facts in McMurdo JA’s reasons. I agree with his Honour’s conclusions on the second to fourth grounds.
On the first ground, in my respectful view, there was no real risk that the jury would have been left thinking that the relevant act might be the holding of the knife as opposed to the insertion of the knife into the complainant’s body, or, as it was termed in the notes provided to the jury, the stabbing.
At its base level the competing versions were these: the complainant said that the appellant stabbed him in the stomach and in the arm; the appellant said he threatened to stab the complainant, but “didn’t actually stab him”, and the complainant “just got cut” because the appellant “had a knife”.
Before the directions relevant to this point commenced the jury were given the notes prepared by the trial judge. They identified the relevant question as “Did the defendant consciously choose to stab [the complainant] in the abdomen (or arm)?”1 Thus, the act was correctly identified as the stabbing.
In the directions set out by McMurdo JA, though the trial judge used several ways of explaining to the jury what the issue was, it was always about the stabbing.
In the first paragraph:2(a)the jury were told clearly that the Crown had to prove that the wounding was unlawful;(b)they were also told that the defence case was that the wounding was because of an unwilled act;(c)the explanation used the phrase “he ran onto my knife and I did not intend to wound him” synonymously with the phrase “he was cut but I did not stab him”.
Then, in the next quoted paragraph the jury were told:3(a)the willed act “has to be the act that caused the injury”; self-evidently that referred to the stabbing, not the holding of the knife by itself, and the jury would have understood it that way;(b)the next sentence gave an example: “holding the knife in the fight, or cutting or stabbing a person in a fight, with the knife held by the defendant”; the trial judge clearly corrected himself after the first six words, so that the focus remained where it was from the start, namely on the relevant act being the ;(c)the jury were then told to “Consider if there is a physical act separately from the consequences”; the “consequences” would have been plainly understood by the jury as being the stabbings;(d)the trial judge did not water that down when he said, “So, was holding the knife letting it go into the defendant’s stomach a willed act or not?”; the focus did not leave the stabbing, nor would the jury have been misled that they were separate; and(e)the last sentence focussed on intention to cause the .
“I said, “Come in and I’ll stab you,” and he ran at me. I didn’t actually stab him; he just got cut, I think. I don’t really know. I had a knife.”9
Defence counsel addressed the jury that they could hear this conversation with the officer:
“Who’s been injured? --- My brother. He’s left. He’s gone. Not sure where. He came in. I had a knife. I was hiding in the room. “Come near me, cunt, I’ll stab you.” He ran at me. I didn’t actually stab him. He just got cut. I don’t know – don’t really know. I had a knife.”10
The first ground: section 23
The prosecutor accepted that it was necessary for the trial judge to direct the jury on the application of s 23(1)(a) (unwilled acts) and s 23(1)(b) (events occurring by accident) of the Criminal Code. The complaint here is about the judge’s directions about unwilled acts.
The judge distributed to the jurors notes which were in the nature of a question trail for each count. Count 1 was described in these notes as the Abdominal Wound and count 2 was described as the Arm Wound. The notes were extensive because the jury was directed not only as to both limbs of s 23(1), but also self-defence under s 271(1) and (2) and the defence of a dwelling house under s 267. In his summing up, the judge referred to these notes as he gave further directions about each of those issues.
As to the unwilled acts limb of s 23, the trial judge directed the jury as follows:
“The second thing that the Crown has to prove – and this is at the bottom of the first page – is that the wounding was unlawful. Now, you have heard each counsel tell you, I think, that unlawful means it is not authorised, not justified or otherwise excused by law. Now, in this case, the defendant says there are really four possible defences that he has, and if he does satisfy you of any of those defences – or should I say, more accurately – if the Crown does not satisfy you that none of those defences is open to the defendant, then his wounding would be unlawful. But he says, “No, it was lawful because either, I wounded him by accident, I wounded him because of an unwilled act such as” – well, I will come to it, but “he ran onto my knife and I did not intend to wound him. He was cut but I did not stab him, I wounded him in an act of self-defence”, or “I wounded him in an act of defending the dwelling in which I was situated”, and I will go into more detail.
…
Now, the next page is about unwilled acts and, again, I have set out the relevant section. A person is not criminally responsible for something that the Crown does not prove was a willed act, and that was an act he deliberately did. The willed act has to be the act that caused the injury. For example, holding the knife in the fight, or cutting or stabbing a person in a fight, with a knife held by the defendant. Consider if there is a physical act separately from the consequences. So, was holding the knife and letting it go into the defendant’s stomach a willed act or not? It does not actually need proof of any intention to cause a particular result. So, he holding the knife out in front of him does not necessarily mean he intended to cause a large stomach wound.
…
What has to be proved is that an act was a choice consciously made that the defendant made – so the Crown has to prove, really, that the act was a choice consciously made by the defendant, the act of holding his knife in a position that it would – might have that consequence, or would have the consequence. An example, I think, that Mr Kelso gave you, if you were sleepwalking and you stabbed someone when you were sleepwalking, it would not be a willed act and you would not be criminally liable for it. There are other possible things, including, for example, a reflex action. If you got kicked in the knee and you have – it is not a very good example – but you happen to have a knife on your boot and therefore stab someone with your boot, that might not be a willed act even though you had the knife, and you knew that you had the knife and you deliberately had the knife there.
So the prosecution has got to exclude beyond reasonable doubt the possibility that the defendant’s act of cutting Mr Kahler with the knife, or stabbing him, occurred independently of his will, and that is for you to decide. It might help to ask if the prosecution has proved that he made a conscious choice to do that act. Has the prosecution proved that each act of inserting the knife in Mr Kahler’s body was an act that he intended, that it was a willed act. You need to consider whether, in the fight between the two of them in the ensuite in the bedroom, each time the knife entered Mr Kahler’s body that was a voluntary act or not a voluntary act on the defendant’s part.”11
(Emphasis added.)
Within those passages, the judge correctly instructed the jury that the issue was whether the insertion of the knife in the complainant’s body was a voluntary act in the sense that it was an act willed by the appellant. The factual question in this case was like that which arose under s 23 of the Criminal Code (WA) in Ugle v The Queen.12 The judge had to identify the relevant act, which was that for which the appellant was alleged to be criminally responsible. That act was the insertion of the knife in the complainant’s abdomen or arm.
The appellant said to the police officer “he ran at me. I didn’t actually stab him. He just got cut.”13 On that version, the insertion of the knife for each count was not a willed act by the appellant.
In parts of the summing up, the jury was directed to consider whether the knife was inserted by a choice consciously made by the appellant.14 Unfortunately, in other places within the passages which I have quoted, the jury was misdirected.
The judge gave examples of what he said would constitute a willed act,15 precluding the operation of s 23(1)(a) in this case, of the appellant “holding the knife in the fight or cutting or stabbing a person in a fight, with a knife held by the defendant”. His Honour said “So, was holding the knife and letting it go into the defendant’s stomach a willed act or not?” He said, correctly, that a willed act did not require an intention to cause a particular result. But then his Honour said “So, he holding the knife out in front of him does not necessarily mean he intended to cause a large stomach wound.”
By those statements the jury could have understood that the act of merely holding the knife was the relevant act for this issue. That was incorrect, because the prosecution case was that the act for which the appellant was criminally responsible was the alleged insertion of the knife into the complainant’s person, and the question for the jury was whether the knife might have entered the body of the complainant independently of the exercise of the appellant’s will.16
The problem was compounded by the next passage of the summing up, in which the jury was told that what had to be proved was that there was a conscious choice made by the appellant . Again, it was not the act of merely holding the knife which had to be considered.
“Did the defendant consciously choose to stab [the complainant] in the abdomen (or arm)? Or was it an unwilled reflex or automatic motor action on the part of the defendant?”17
That second question was not relevant to the appellant’s case, and the jury may have thought that if it was answered in the negative, the first question had to be answered in the positive.
The respondent submits that the summing up did not fall short of what was required.18 In oral submissions, counsel for the respondent further submits that the directions which the appellant says should have been given would not have been apt, because of the circumstance that there was more than one wound, so that it could not have made sense for the jury to be considering an alternative that the complainant twice impaled himself on the knife. As to that submission, however, each count was to be considered separately, and in each case, as the prosecutor agreed at the trial, the jury had to be instructed about the potential operation of s 23(1)(a). The fact that there were two wounds to the complainant was relevant in a factual sense, but it did not negate the requirement for an appropriate direction on this issue.
For these reasons the jury was misdirected on s 23(1)(a), and there was a miscarriage of justice. Counsel for the respondent disavowed any reliance upon the proviso. At least for this reason, the convictions should be set aside and a re-trial ordered.
The second ground: evidence of bad character
During cross-examination, the complainant gave a number of responses which went beyond the question and which alleged that the appellant was a “junkie”, a “needle user” and a “violent person” who had taken advantage of S and was supplying her with drugs.19 He asserted that the appellant was a “violent junkie” from whom S and their child needed protection.20
The appellant’s argument is that this evidence was inadmissible because it was irrelevant to any fact in issue at the trial. Alternatively, if it was admissible, it required the judge to direct the jury in terms of a warning against the misuse of the evidence by reasoning that if the appellant was a person of that kind, he was not to be believed in what he had said to police and he was the type of person who was more likely to commit the offences which were charged.
As to the first submission, I would accept that the evidence was inadmissible, for the reason that it went beyond a responsive answer to the question which was asked by the cross-examiner. However, the practical difficulty was that the jury had heard the evidence and any prospect of their giving some weight to it might not have been removed by a ruling by the judge that it was inadmissible.
Had defence counsel sought the direction which, it is now said, should have been given to the jury, it would have been prudent for that direction to have been given. However counsel did not seek that direction, for which, in my view, there is an apparent explanation. It may well have been to the appellant’s disadvantage for the jury to have been reminded of the evidence, by the judge directing the jury that if the appellant was a person of this description, it did not follow that he was more likely to have committed these offences. In that way, the direction might have contributed to the credibility of the evidence, in the minds of the jurors.
In my conclusion there was no miscarriage of justice from this evidence being given and the absence of a direction about it.
The third ground: right to silence
In re-examining a police officer, the prosecutor led evidence that the appellant was offered a formal interview, in which he declined to participate.
It is submitted for the respondent that this evidence was relevant, because the cross-examination of the witness had extensively questioned the adequacy of the police investigation, including whether the appellant had been given opportunities to describe his version of events of the earlier altercation between the two men. That submission should be accepted, as the appellant’s counsel concedes.21 However it is submitted by the appellant that the jury should have been directed that they were not permitted to use the appellant’s exercise of his right to silence in any way which was adverse to him.
The trial judge gave the usual directions about a defendant who has not given evidence.22 However he did not give a similar direction about the appellant’s unwillingness to be formally interviewed by police. In my respectful view, such direction should have been given.
The fourth ground: the repetition of the complainant’s evidence
After the summing up, the jury requested to see the transcript of the complainant’s evidence about his entering the bedroom or bathroom at the beginning of the fight. They asked for his evidence on that subject in both examination in chief and cross-examination. That evidence was then read to the jury by the judge’s associate.23
It is suggested here that this required a warning to be given against the risk of giving that evidence undue weight and for the jury to be reminded of the competing evidence.24 At the same time, it is conceded that such a warning and direction is not required in every case where some of the prosecution evidence is in some way repeated at the end of the trial.
In my opinion, they were not required in this case. The trial had occupied only three days. This evidence was read to the jury on the morning of the fourth day, after they had heard the addresses and the summing up on the previous day. There was no real prospect that having this part of the complainant’s evidence read to them would have made them more inclined to accept it, either because by then they might have forgotten the defence case or for some other reason. I would reject this ground of appeal.
Conclusions and orders
Allow the appeal.
Set aside the convictions.
Order that the appellant be re-tried on counts 1 and 2.
It would follow that the application for leave to appeal against sentence should be refused.
KELLY J: I agree with the reasons of McMurdo JA and with the orders proposed by his Honour.
R
Beauchamp [2022] QCA 77
(2007) 232 CLR 208
(1990) 171 CLR 30
(1992) 29 NSWLR 109
(2002) 211 CLR 171
The third quoted paragraph gave some examples, but they were examples only, as the jury would plainly have understood. As to that paragraph:(a)the reference to the holding the knife was not distinct from the “consequence”, i.e. the stabbing;(b)each of the examples were of stabbing.
Then in the last quoted paragraph the trial judge stated clearly that the Crown had to exclude the possibility that “the defendant’s act of cutting … with the knife or stabbing him, occurred independently of his will”. That the jury would have understood that the relevant act was the stabbing could not be clearer, in my view. That was then reinforced by the trial judge directing that the jury might ask whether there was “a conscious choice to do that act”, plainly a reference to the stabbing. And, then the jury were told they had to consider whether “each time the knife entered [the complainant’s] body” that was a voluntary act.
At the end, the jury were left with the trial judge’s note, which clearly identified the relevant act as the stabbing.
In my respectful view, there was no real risk that the jury might have thought that the act of merely holding the knife was the relevant act, or that s 23(1)(a) would not apply if the knife was simply in the appellant’s hand by the exercise of his own will.
The first was, as I have said above, not the way the jury would have understood what was being said to them. That conclusion credits the jury with little comprehension.
The second is also unrealistic as there was no suggestion at any time the appellant accidentally or involuntarily picked up the knife. The only accidental or involuntary aspect, on his own account, was the stabbing.
I do not consider that the directions referred to on the first ground resulted in a miscarriage of justice.
That said, as stated above I agree with the proposed orders because of the outcome on the third ground.
McMURDO JA: The appellant was convicted of two counts of unlawful wounding, inflicted in a struggle with his half-brother in a house in Toowoomba. He appeals against his convictions upon four grounds, each involving a suggested defect in the judge’s directions to the jury. He was sentenced to concurrent terms of imprisonment, the longer of which was a term of three years and three months, and he also applies for leave to appeal against those sentences. For the reasons that follow, his appeal against his convictions should be allowed and a re-trial ordered, making it unnecessary to consider the sentences.
At the time of the incident in which the offences were said to have been committed, the complainant was not long out of jail, having been there, it seems, for about four months. Prior to his incarceration, he had been in a long-term relationship with a woman whom I will call S and with whom he had a young child. He was released from jail on 16 June 2020 and he spent that night at S’s house. On the following evening she asked him to leave. He then did so and went to stay at his parents’ house where the appellant lived.
When he arrived there, he immediately argued with the appellant. The complainant’s evidence was that he had just told the appellant that he had broken up with S, when the appellant jumped at him aggressively and pushed him. There was a struggle between the two which was broken up by their mother who drove the complainant back to S’s house.
S asked the complainant again to leave the house, which he did, but not before he had grabbed S’s phone from her back pocket, read text messages on it and refused to return it to her. He went back to his parents’ house taking the phone with him. In his evidence, he said that S had told him that she was not in a relationship with the appellant, but that the complainant “knew it”.4
Over the next few days, the complainant sent 11 text messages to the appellant, threatening an assault or even death. A threatening text from him on 23 June brought an exchange of threats between the two men.
On 26 June, the complainant sent a text to S in which he threatened to kill the appellant, a threat which she passed on to him. On that afternoon, the appellant texted the complainant asking to be left alone and telling him to “go away”.5
On the following day, there was an arrangement between the complainant and S for the complainant to have access to their child, by collecting the child at a certain place away from S’s house. He did not keep that appointment and instead arrived at her house. She was surprised to see him there and asked him why he had not called. When she opened the front security door to him, he pushed her out of his path and immediately walked to the back of the house where he found the appellant in the ensuite bathroom. The complainant said “I knew it. I knew it. You’d be here.”6
The two men were standing about half a metre from each other. The complainant’s evidence was that the appellant then stabbed him in the stomach. The complainant said that he didn’t see a weapon and at the time thought he had been slapped or punched. He said that as he put his hand over the top of the appellant’s head, trying to push him down, he felt a slapping against his side, at first to his lower stomach, then to his ribs and his shoulder, and then to his hand and the side of his face. He realised that he had been stabbed when he saw his own blood on the bathroom floor. He said he then stepped back, and the appellant jumped at and pushed him. There was then a fight involving some punching, culminating with the complainant ending up on top of the appellant and “choking him out”.7 The complainant denied that he had attacked the appellant, and maintained that the fight was started by the appellant jumping at him and slamming a knife into his stomach.8
S testified that she witnessed the end of this fight, when she walked into the adjoining bedroom and saw the complainant on top of the appellant, with his hands around the appellant’s throat.
The complainant sustained a three to four centimetre cutting wound to his abdomen, on which surgery was performed. There was a superficial injury to the bowel. There was a laceration to the left upper arm which entered the skin, fat and muscle, fortunately not resulting in a serious vascular injury.
The appellant did not give evidence at the trial. His version of events was that which he briefly gave to a police officer and was recorded by the officer’s body worn camera. The prosecutor’s version of what could be heard in that recording was, relevantly:
Further, the judge then gave unhelpful examples of sleep walking and reflex actions, neither of which was relevant in this case, and which were likely to have been prejudicial to the appellant’s case. (Contrary to what his Honour there said, it was the prosecutor and not defence counsel who had addressed the jury with those examples.)
In my respectful opinion, these directions were likely to have misled the jury, by suggesting that s 23(1)(a) would not apply if the knife was simply in the appellant’s hand by the exercise of his own will.
The notes which were distributed to the jury could not have remedied the directions which were given orally. In the notes, the jury was asked to consider:
cf Ugle v The Queen [2002] HCA 25; (2002) 211 CLR 171 at 179. ↩
AR 325, 333. ↩
Respondent’s outline, paragraph 26. ↩
AR 125, 145, 148. ↩
AR 156, 159, and 161. ↩
See R v Reeves (1992) 29 NSWLR 109 at 115. ↩
AR 48. ↩
AR 76-81. ↩
Gately v The Queen [2007] HCA 55; (2007) 232 CLR 208. ↩