Criminal law - Conviction for attempted murder - Whether trial Judge erred in directing jury about the sequence in which it could consider alternative charges - Adequacy of directions on role alcohol consumption could play in the determination of accused's intent - Adequacy of directions on drawing inferences against the appellant

Beresi v The Queen [2004] WASCA 67

Chamberlain v The Queen (No 2) [1984] HCA 7; (1983) 153 CLR 521

Hellings v R [2003] WASCA 208

Shepherd v R [1990] HCA 56; (1990) 170 CLR 573

Stanton v R [2001] WASCA 189; (2001) 24 WAR 233

Stanton v R [2003] HCA 29; (2003) 198 ALR 41

Viro v The Queen [1978] HCA 9; (1976) 141 CLR 88

Wedd v The Queen [2000] WASCA 273

Cutter v The Queen [1997] HCA 7; (1997) 143 ALR 498

Hellings v The Queen [2003] WASCA 208

Leary v The Queen [1975] WAR 133

Stanton v The Queen [2001] WASCA 189

1 MURRAY J: I am much obliged to Jenkins J for the opportunity to read in draft her Honour's judgment, which relieves me of the need to do more than make some supplementary observations to explain why I too would dismiss the appeal against the conviction of attempted murder.

2 The grounds of appeal which were pursued in argument before us are set out by Jenkins J. I need not repeat them.

3 The indictment contained two counts and presented three alternative guilty verdicts for the jury's consideration. The most serious charge was, of course, that of attempted murder. In the alternative, the appellant was charged with doing grievous bodily harm with intent. Upon that count, pursuant to the Criminal Code (WA), s 594, the appellant was liable to be convicted of the alternative offence of doing grievous bodily harm. It will be seen that the different guilty verdicts turned upon the question whether the jury were satisfied beyond reasonable doubt that the appellant intended to kill his de facto wife, whether he intended to cause her serious bodily injury, or whether neither intention was established beyond reasonable doubt.

4 That was the way the matter was left by the trial Judge, who gave the jury proper directions in respect of the elements of the offence of attempted murder, subject only to consideration of his Honour's directions about the intoxication by alcohol of the appellant and the question whether, having regard to such intoxication, there may have been doubt as to the formation of an intention to kill. I note in passing that the defence was raised also with respect to the intention to do the serious injury which was an element of the alternative offence charged in the indictment as an "intent to main, disfigure, disable or do grievous bodily harm".

5 Ground (a) alleges that the Judge erred in directing the jury first to consider the appellant's guilt of the offence of attempted murder, that they were only to consider his guilt of doing grievous bodily harm with intent after they reached a verdict of not guilty of attempted murder and they were only to consider guilt of doing grievous bodily harm simpliciter after reaching a verdict of not guilty of doing grievous bodily harm with intent. I respectfully agree with Jenkins J that the trial Judge gave no such direction. His Honour's remarks were confined to the order in which the jury's final conclusions about the offences requiring their consideration would be reached and the order in which their verdicts might be taken.

6 I am also of the same mind as Jenkins J that in respect of the instruction given to the jury about the possible verdicts and the order in which they might be taken, whichever was the document which his Honour sent to the jury room as an aide memoire, the jury would not have been misled into approaching their deliberations in such a way as to involve any error. I need not repeat her Honour's discussion of the directions given. The view to which I have come about them is sufficient to dispose of this ground of appeal.

7 However, the ground clearly sought to raise the point of law which was involved in the decision of this Court in Stanton v R [2001] WASCA 189; (2001) 24 WAR 233, and on appeal to the High Court in Stanton v R [2003] HCA 29; (2003) 198 ALR 41. In view of the argument before us, it may be desirable to mention briefly what, in my view, emerges from those decisions, which I am satisfied may have general application to any case where the jury has to consider alternative verdicts, either as a result of the pleading of alternative charges in the indictment or because, in relation to the offence charged in the indictment, the jury has the power under the Code, s 594 to return a verdict of guilty of "any other indictable offence, which is established by the evidence, and which is an element or would be involved in the commission of the offence charge in the indictment." In noting that power, I would lay emphasis upon the phrase "which is established by the evidence", by which the power is conferred in terms consistent with the onus of proof of guilt beyond reasonable doubt and the presumption of law, until an accused person is convicted, that he or she is innocent of the commission of any offence.

8 This Court revisited the point in Hellings v R [2003] WASCA 208, where, at [20], the Court [Murray, Wheeler and McLure JJ) expressed its view of the way in which the two decisions of Stanton, that of this Court and the High Court, sat together:

"Our reading of the judgments in the High Court does not reveal disagreement as to the law or the terms in which a jury may be directed in relation to the manner in which they may go about their task or the manner in which verdicts are to be returned. At par [41] the majority, Gleeson CJ, McHugh and Hayne JJ, expressed the view that the interpretation of the crucial direction by the trial Judge in that case which had been placed upon it by this Court was incorrect and on that basis upheld a notice of contention. The minority, Gummow and Callinan JJ, on the other hand, identified error in the same terms as members of this Court, but disagreed with the majority of this Court, Malcolm CJ and Murray J, in respect of the application of the proviso. Like Owen J in this Court, the minority would in that case have ordered a new trial."

9 A number of matters emerge clearly. In the first place, in a case of the kind under discussion where the jury are required to consider alternative guilty verdicts, they may deliberate upon the issues in the case and organise their individual processes of reasoning about the issues requiring their decision in whatever manner appears to them, individually and collectively, to be convenient. The directions which will be required of the trial Judge will depend on the nature of the alternatives and the issues of fact in contention at the trial. But the directions should not foreclose to the jury any sensible way of deciding the case.

10 They should not be told that they may not consider an alternative charge until they have reached a concluded view about a more serious charge upon which a verdict is open on the indictment. Care should be taken to ensure that any directions given do not water down or have the tendency to reverse the directions of the trial Judge about the onus and burden of proof. The jury may, of course, be told, as they were in this case, in what order and in what terms their verdicts will be taken, to the extent that it becomes necessary to receive their verdicts upon any of the alternative offences open on the indictment.

11 The substantive point of the decision of this Court in Stanton, upon which all members of the Court were agreed, and which was not detracted from by the decision of the majority in the High Court, was that in giving directions about the jury's processes of deliberation or the manner in which the verdicts might be taken, the trial Judge should not, as it was put in Hellings at [19], instruct the jury "that the only basis upon which the verdict of guilty of the lesser alternative might be returned was that the jury were unanimously persuaded that the accused was not guilty of the more serious offence." A direction of that kind carries with it the danger of reversal of the onus of proof, whereas no error is involved if the jury are told, as we put it in Hellings at [19]:

" ... that it would be open to return a verdict of guilty of the lesser offence if they were not unanimously persuaded beyond reasonable doubt to convict of the offence charged in the indictment. There is a wealth of difference between being unanimously persuaded that the accused is not guilty and failing to be unanimously persuaded that the accused is guilty."

12 In Hellings we concluded the discussion by returning to the nature of a general verdict by the jury and the proper way in which such a verdict must be reached according to law. At [21] - [22] we said:

"It remains clear, in our view, that in a case where the law provides alternative verdicts to the offence charged in the indictment the jury may consider the various alternatives in the manner of their choosing. When they reach a verdict, whether guilty or not guilty of any offence open on the indictment, their verdict must have the degree of unanimity prescribed by law: Juries Act 1957 (WA), s 41. If the jury, when asked for their verdict, convict of the most serious offence open on the indictment, that is a general verdict into which merge all alternatives open on the indictment and the jury will not be questioned further, unless in respect of a circumstance of aggravation or in relation to some other material specific fact: Code, s 642.

If the jury return a verdict of a lesser offence open on the indictment that, necessarily, is also a general verdict which disposes of any more serious offence open on the indictment so that the accused may not again be placed in jeopardy of conviction of any such offence. Such a verdict necessarily implies the necessary degree of agreement that the jury were not persuaded of guilt of the more serious offence beyond reasonable doubt. The directions given by the trial Judge must ensure that that is the case."

13 In my opinion, in this case the error identified in the decisions of this Court and the High Court in Stanton was not committed and there is nothing to disturb the integrity, as a matter of law, of the verdict of attempted murder.

14 In passing from this ground, I wish only to note that although in this case it has not impeded the capacity of the Court to resolve the issue raised by the ground, there is a potential for difficulty of that kind to be created when, in part, the directions to the jury are in written form, even in the form of a summary of the law or the Judge's directions about procedure, to which the trial Judge speaks in giving oral directions. It is imperative that any such document be given a marking for later identification so that it is identified in the record of the Court. There can then be no doubt, as there was in this case, which version of the document went to the jury, when a number of drafts are considered by the trial Judge and counsel at trial.

15 As to ground (e), that complaining of error in the trial Judge's directions about intoxication, I have, with respect, nothing to add to the reasons of Jenkins J. I would not uphold this ground.

16 As to ground (f), concerned with the directions about drawing inferences, again I am in general agreement with the reasons of Jenkins J and would not uphold the ground. I wish only to add the following observation. The question of the drawing of an inference of guilt arose in this case only in respect of the intention, if any, with which the acts done by the appellant to the victim were accompanied. The question was, when the appellant attacked his wife in the manner described by Jenkins J, did he, despite his intoxication, intend to kill her or did he intend to cause her serious bodily injury. If not, the assertion that he acted in self-defence having necessarily been negated by the verdict of the jury, he would properly be convicted of doing her grievous bodily harm simpliciter. So the question was whether the evidence established either specific intention beyond reasonable doubt.

17 There was direct evidence of the intention to kill. A witness said that he heard the appellant say to the complainant three times, as he assaulted her, "I'll kill you." In addition, the jury had available evidence of what he did, the nature of his attack, how sustained it was, the use of various weapons and the grave injuries inflicted, from all of which the jury might be persuaded beyond reasonable doubt, as they were, that there was an intention to kill.

18 In the leading case, Shepherd v R [1990] HCA 56; (1990) 170 CLR 573, the High Court, while giving guidance on the directions which might be required of a trial judge in a case where the evidence was circumstantial in character, to assist the jury in considering whether it was proper to draw an inference of guilt, made it clear that the directions about which it was speaking may not be required because they might not assist the jury as an amplification of the general direction about the obligation upon the prosecution to prove guilt beyond reasonable doubt: eg, per Dawson J at 579.

19 In my opinion, that is sometimes overlooked by trial judges and indeed this was, I think, a case where the jury would have been adequately directed that they must find the intention with which the acts were accompanied, if at all, to be proved to their satisfaction beyond reasonable

doubt. No more was required than to identify the evidence which bore upon the resolution of that question of fact.

20 However that may be, the directions given by his Honour, in my view, involve no error. They would not have misled the jury as to the standard of proof of intention to be applied. Although for myself I would think, with respect, that the jury would not be particularly assisted by a discussion of examples of the drawing of inferences in circumstances unrelated to the case, in my view the discussion of those examples did no harm. I would not uphold this ground of appeal and repeat my conclusion that in my view the appeal should be dismissed.

21 LE MIERE J: I have had the advantage of reading, in draft, the reasons of Jenkins J and of Murray J. I agree that the appeal should be dismissed for the reasons stated by Jenkins J. I also agree with the further observations of Murray J.

22 JENKINS J: The appellant appeals against his conviction for attempted murder.

23 The appellant was charged that on 17 June 2001 he attempted to murder Janet Jennings and, in the alternative, he did her grievous bodily harm with intent to maim, disfigure, disable or do grievous bodily harm to her. The trial Judge also left a third, uncharged alternative to the jury, being that the appellant did grievous bodily harm to Ms Jennings. On 12 November 2002, after a trial by jury, in the Supreme Court of Western Australia sitting at Kalgoorlie, the appellant was convicted of attempted murder.

24 Several grounds of appeal were included in the notice of appeal but have since been abandoned. The following amended grounds remain.

(a) Directing the jury to consider count 2 only after reaching a verdict of not guilty on count 1 and only consider the alternative to count 2 after reaching a verdict of not guilty on count 2.

...

(e) When attempting to rectify the inadequate direction to the jury on the relevance of intoxication to intent incorrectly

advising the jury about the formation of intention by an intoxicated person.

(f) Failing to clearly demonstrate for the jury that several inferences can sometimes be drawn from the same set of facts given that the jury were provided with examples of drawing one inference only from a set of facts (eg: that because someone comes inside with a wet umbrella it is raining outside)."

25 The complainant, Ms Jennings, is the appellant's wife. On 17 June 2001 the appellant, the complainant and four other people traveled in a motor vehicle towards Wiluna. Most of the occupants of the car, including the appellant, had been drinking alcohol. The vehicle broke down at some point out of Wiluna and the appellant became very angry. He directed that anger towards the complainant and he and the complainant argued with each other. A witness heard the complainant insult the appellant. The appellant then punched the complainant in the head and chest. He continued to assault her in various ways with weapons including an iron bar, a stick and a rock. Another witness heard the appellant say "I'll kill you" to the complainant on three occasions whilst he was assaulting her. Eventually the other occupants of the car left to obtain assistance. They obtained that assistance from a local minister of religion who immediately traveled to the scene. When he arrived he saw the appellant walk away from the complainant who was lying, badly injured, in the middle of the road. Medical treatment was obtained for the complainant. As a consequence of the seriousness of the complainant's injuries she was transferred to Royal Perth Hospital.

1. a fractured right occiput, which is the prominent part of the back of the head, and an associated laceration;

2. a subdural haematoma, which would have inevitably led to her death if it had not been treated;

3. a 6 cm laceration across the left forehead, which was as deep as the skull;

5. an almost severed right ring finger, which was subsequently amputated;

9. a 12 cm laceration to her left arm, which went down to the bone.

A number of these injuries had to be treated in surgery.

27 Evidence of these matters was given by the complainant, other eye witnesses, the minister of religion, nurses and doctors. The State also led evidence from police officers of an interview with the appellant. In that interview he admitted to hitting the complainant with a stick and a crowbar. He said that the complainant had hit him first. He denied intending to kill the complainant and said that he was badly affected by alcohol at the time he hit her.

28 The appellant did not give evidence or call any other evidence.

29 The trial Judge left self defence for the jury's consideration. By virtue of the jury's verdict it is clear that the jury were satisfied that the State had negatived self defence.

Ground (a) - Directions to the Jury as to Order of Deliberations

30 The appellant submits that the trial Judge erred in directing the jury to consider count 2 (causing grievous bodily harm with intent) only after reaching a verdict of not guilty on count 1 (attempted murder) and to only consider the alternative to count 2 (causing grievous bodily harm) after reaching a verdict of not guilty on count 2.

31 The appellant relies upon a number of different passages from the trial Judge's directions and redirections to demonstrate this alleged error. However he says that the directions and redirections must be looked at in light of a ruling that his Honour made before he directed the jury because, it is submitted, the ruling indicated that the trial judge intended to direct the jury that it must consider its verdicts in the above order. The appellant, in effect, says that this intention colours the words actually used by the trial Judge.

32 Before dealing with the directions in this case it is important to identify the legal principles that emerge from the High Court's decision in Stanton v The Queen [2003] HCA 29; (2003) 198 ALR 41, which is the principal case on which the appellant relies. Regrettably, in order to understand the decision in Stanton v The Queen (supra) and to understand the ruling the trial Judge made in this case it is also necessary to set out the reasons of the Court of Criminal Appeal on Stanton's appeal to this Court.

Appeal to the Court of Criminal Appeal in Stanton's Case

33 Stanton was convicted, by a jury, of wilful murder. The essential issue in the trial was the intent of the accused. On appeal to this Court the grounds of appeal were:

"1. The learned Trial Judge directed the jury at T1002 as follows:

'You first consider wilful murder and if you're unanimously of the view that the accused is guilty of wilful murder, that will be your verdict. If you are unanimously of the view that he's not guilty of wilful murder, then you proceed to consider whether you find him guilty of murder. If you are unanimously of the view that he is guilty of murder, then that will be your verdict.

If you are unanimously of the view that he's not guilty of murder, then you will consider manslaughter.'

2. The learned Trial Judge further directed the jury at T1006 as follows:

'You can't come to consider the alternative verdicts of murder or manslaughter unless you are unanimously of the view that he is not guilty of wilful murder'.

3. The learned Trial Judge erred in law in giving the directions for the following reasons:

A. The jury was directed to consider [its] verdict in a particular order. The [jury] should have been directed that it could consider [its] verdict in any order.

B. The directions, taken together and as a whole, had the effect of precluding individual members of the jury from considering manslaughter at all so long as any one of the jury found that the accused was guilty of wilful murder. The jury should have been directed that it could return any verdict consistent with the evidence."

34 The Full Court dismissed the appellant's appeal. Malcolm CJ and Murray J concluded that the directions set out in grounds 1 and 2 both involved errors of law, but regarded the case as a proper one for the application of the proviso in s 689 (1) of the Criminal Code, because there was no miscarriage of justice. Owen J, in dissent, considered that the direction in ground 2 (although not the direction in ground 1) involved an error of law. He did not regard the case as a proper one for the application of the proviso.

35 Owen J recited, at par 45 - 48, the trial Judge's directions:

"Having discussed the elements of wilful murder, his Honour said:

'As to murder, you couldn't get to consider the alternative verdict of murder unless you were unanimously of the opinion that the crime of wilful murder had not been committed. You must unanimously come to that conclusion before you move to consider whether the alternative crime of murder has been proved.'

The trial Judge went on to tell the jury about the crime of murder. He then said:

'If you are unanimously of the view that the crime of murder has not been proved, then you can proceed to consider the alternative verdict of manslaughter.'

Again, he went on to discuss the elements of the crime of manslaughter in a way that is not under challenge. After the jury had been deliberating for about four hours a question was relayed to the trial Judge. When the jury returned, this exchange occurred:

'Madam Foreman, ladies and gentlemen, the question you have asked is this:

"If the jury is in conflict, do those who believe he is guilty of wilful murder have to move down to the charge of manslaughter? Do 12 people have to agree to move down to manslaughter?"

'... Yes, the law is quite clear. You can't come to consider the alternative verdicts of murder or manslaughter unless you are unanimously of the view that he is not guilty of wilful murder. So, whatever your verdict is on the first charge of wilful murder, it must be unanimous.'

Having deliberated for a further period, a little in excess of one hour, the jury returned a unanimous verdict of guilty of wilful murder."

36 In respect to the direction quoted in the second paragraph of the grounds of appeal the Full Court was unanimous in its view that the trial Judge had erred. This was not because it mandated a sequence in which the jury had to consider its verdict but because it mandated a sequence in which the jury had to consider the charges.

"The only reasonable inference to be drawn from the first six words of the question is that the jury was then in a state of disagreement on wilful murder. They were asking whether they had to reach a unanimous view on wilful murder before they could 'come down to' manslaughter. Given the specificity of the question I think there is a danger the jury would have gained the impression from the answer that they could not even consider manslaughter until they had reached a unanimous verdict on wilful murder. It is difficult to construe the answer as suggesting that the approach which the trial Judge told the jury represented the law was permissive rather than mandatory. In my view it was a misdirection."

38 Malcolm CJ, at par 10, and Murray J, at par 33, expressed themselves to be in agreement with Owen J on this issue.

39 As to the first direction quoted in the grounds of appeal which was the basis of ground of appeal 3B, two of the members of the Court (Malcolm CJ and Murray J) were of the view that the trial Judge had misdirected the jury as alleged in the ground of appeal. They said, the jury should have been directed that if it was unable to agree on a verdict (guilty or not guilty) in relation to wilful murder, it could return a verdict on an alternative charge. Nonetheless they were prepared to apply the proviso. Owen J, in dissent, decided that the trial Judge had not misdirected the jury in respect this issue.

40 This was the law when the appellant stood trial.

Appeal to the High Court in Stanton's Case

41 The matter was appealed to the High Court. In the High Court, the State filed a notice of contention, arguing that the directions in pars 1 and 2 of the grounds of appeal involved no errors of law.

42 Gleeson CJ, McHugh and Hayne JJ, in a joint judgment, disagreed with the CCA in respect to the effect of the trial Judge's directions, particularly his answer to the question from the jury. Referring to Owen J's reasons at par 89 they said, at par 35:

"If that were a fair appreciation of the effect of what the trial judge told the jury, then error would be demonstrated. Jurors are free to organize their individual processes of reasoning, or their discussions as a group, in whatever manner appears to them to be convenient. The question is whether [the trial judge] might reasonably have been understood to convey anything to the contrary, or whether he was merely informing them of the sequence in which, at the point of final decision, they were to deal with the possible verdicts available to them."

43 Their Honours went to on to say that a proper appreciation of what the trial Judge said required attention to the issues as they emerged at the trial, the other directions that the jury had already been given and the precise question to which he was giving an answer.

44 As to the first point, their Honours said, at par 37, that ultimately it was a single issue case. The critical question being whether the jury were satisfied beyond reasonable doubt of the Stanton's intent to kill his wife. They said it was difficult to understand how any possibility of sequential reasoning on that issue could have arisen.

45 As to the second point their Honours said, at par 38, they found that the trial Judge:

"Had in fact made a suggestion (as he was entitled to do) as to what the jury might find to be a convenient approach to their deliberations. He suggested that they start by considering whether the killing was unlawful in the sense that it was not accidental. If they were not satisfied of that, the verdict would be not guilty. He pointed out that, although it was entirely a matter for them, it was unlikely that they could bring in a verdict of not guilty, for reasons he explained. He then said that whether the guilty verdict was manslaughter or wilful murder depended on the issue of intent. Thus, having suggested that the jury first consider and dispose of the possibility that the killing was not unlawful, the judge said that would bring the jury directly to the issue of intent, and, depending on their view about that issue, the appellant was either guilty of manslaughter or guilty of wilful murder."

46 What the trial Judge said in those respects was unexceptional.

47 As to the third matter, the question asked by the jury concerned the consequences of disagreement. Their Honours said that the question must have been a reference to "the point of final decision; the finding of a verdict. Since the choice between wilful murder and manslaughter turned upon the resolution of the one issue, intent, the question cannot have been directed to a sequence of reasoning, as distinct from the formal act of finding a verdict". Their Honours said that that "was the sense in which he used the word 'consider' in the first sentence of his answer, as is further indicated by the terms of the second sentence of the answer. So understood, the answer was consistent with what the judge had earlier told the jury, and it involved no error".

48 Their Honours, at par 41, concluded that the interpretation that was placed by the CCA on the trial Judge's answer to the jury's question was not correct and determined that the State's notice of contention should be upheld.

49 Gummow and Callinan JJ, in dissent, at par 70, were of the same view as the CCA and held that the trial Judge's answer to the jury's question and the directions complained of effectively denied the jurors their right to disagree and their right to consider, but not return, their verdicts in any order they chose.

50 From the above review of the High Court's decision in Stanton v The Queen (supra) the following principles emerge.

1. It is impermissible for a trial Judge to direct members of a jury that they must consider alternative charges in any particular order as jurors are free to organize their deliberations in whatever manner appears to them to be convenient.

2. When determining whether a trial Judge's directions have infringed this prohibition the question is whether the trial Judge might reasonably have been understood to convey anything to the contrary, or whether he or she was merely informing them of the sequence in which, at the point of final decision, they were to deal with the possible verdicts available to them.

3. In determining the answer to this question, an individual direction should not be construed on its own but must be considered in light of the issues that have emerged at the trial, the whole of the trial Judge's directions and any questions from the jury.

51 It must also be remembered that Stanton's case involved a charge of wilful murder in which there is a power for a jury to bring in a "wrong" verdict of manslaughter, even if they take a more serious view of the accused's conduct. In such a case the law is that a jury must not be deprived of this right by a trial judge directing them that it is not open for them to return such a verdict: Stanton at par 31 per .

52 In respect to the ground of appeal 3B, their Honours considered that Murray J and Malcolm CJ were wrong. The majority of the High Court were of the view that the question of a verdict being taken on the alternative charge did not arise unless and until the jury was not satisfied of Stanton's guilt of wilful murder, and whilst the jury was in a state of disagreement upon the latter, his guilt of the alternative crime remained irrelevant.

53 I turn now to a consideration of the directions complained of in this case.

54 The first matter to consider is his Honour's ruling about the manner in which he would direct the jury. I do not consider that his Honour's ruling indicated an intention to direct the jury in the manner alleged by the appellant. The reason I have come to this view is because his Honour did not understand that he was ruling on the order in which the jury should consider the charges. His Honour commenced his ruling by saying that he had before him the "question of the verdicts which are to be delivered by the jury and what directions I must give in relation to the delivering of the verdicts". Clearly, the question he intended to answer was in relation to the delivery of verdicts. This is made even clearer by the trial Judge's summary of the appellant's argument before him which was that the CCA's judgment in Stanton v The Queen (supra), the decision of the High Court not then having been delivered, required him to ask the jury whether the appellant was guilty or not guilty and, if guilty, of which of the three offences. His Honour then discussed the judgments of the CCA in Stanton's case. The parts of the judgments that he referred to where those parts dealing with whether a jury was required to deliver a verdict of not guilty on a wilful murder charge before it could be asked to return a verdict on a lesser alternative charge. In the course of that discussion he made only a passing reference to Owen J's reasons to the effect that a jury could consider its verdicts in any order it chose. He did not criticise that view. Ultimately he decided that Stanton's case should be distinguished because, first, the alternative charges under consideration in the case before him did not have common elements and, secondly, because only Murray J, out of the three Judges sitting as the CCA, had suggested that the manner of taking verdicts proposed by the appellant applied to any indictment which permitted a lesser verdict of conviction to be returned upon a charge of a particular offence. Thus he said that Murray J's opinion was not binding upon him. He then said at TS 519:

"The upshot of all this is that I propose directing the jury that they have to consider the primary count and reach a unanimous conclusion whether the accused is guilty or not guilty and if they find the accused is not guilty, then they would go on to the alternative count and reach a decision unanimously whether the accused was guilty or not guilty, and finally if they were to find he's not guilty of that offence they would go on to consider (indistinct) so on that basis directions to be given (indistinct)."

55 In the light of the High Court's subsequent decision, the trial Judge was correct.

56 Whilst some of his Honour's expressions appear to be directed at the sequence in which the jury was to consider the charges as opposed to the order in which it was to give its verdicts, given that that was not the issue that he was determining it is inappropriate to interpret it as a ruling on the manner in which he intended to direct the jury with respect to the sequence of its deliberations. This is particularly as his Honour had previously expressed himself to be aware of the prohibition against directing the jury on a mandatory sequence of its deliberations. For example at TS 380 he said:

"... first the jury is not to be directed that they must start at the top and make a decision in this case about the attempted murder charge before moving on to the next one. They mustn't be directed in those terms."

57 When his Honour later said that he distinguished Stanton's case he was clearly doing so in respect to the majority's (Malcolm CJ and Murray J) opinion as to the manner in which the verdicts could be taken and not in respect to the unanimous opinion of the CCA that it was impermissible to direct a mandatory sequence in which the jury must consider alternative charges.

58 Turning now to the alleged misdirections. In this respect the appellant's submissions on appeal dealt with oral directions as well as directions given in a written form.

59 Dealing first with the oral directions, I do not consider they disclose any error. The trial Judge directed the jury that there were three alternative verdicts (TS 531) and that he would give the jury a piece of paper which explained "that". When directing them on the second charge he said that "if of course you've concluded that there was no intention to unlawfully kill, on this charge you'll be looking at whether or not there was an intention to ... disfigure, disable, maim or [do] grievous bodily harm" (AB 544). There is no error in this direction. I do not accept that, by implication, it carries a direction that the jury must have concluded that there was no intention to unlawfully kill before they could consider the alternative charge.

60 At the end of his directions the trial Judge said at TS 555:

"As to the verdicts that you come to, can I now provide you with a sheet of paper which you can take in (indistinct) just for identification, my copy. Your copies won't be (indistinct). I now just distribute this document to you, to all members of the jury. I might have a copy myself so that I have a copy of exactly what the jury have.

As I say, when you go into the jury room you will have the indictment so you should look at the indictment which will contain counts 1 and 2 without all (indistinct) on the sheet. I give you this document so that when you come back in you'll know what is going to be happening and, Mr Foreman, you will be asked the questions that are reflected on this sheet.

In other words, when you return after considering the matter in the jury room you will be asked in relation to count 1 first whether you're agreed on your verdict. The answer will be yes if that's the case. Then you're asked whether you find - 'How say you? Is the accused guilty or not guilty, count 1, that on 17 June 2001 at Wiluna, Carey Simms attempted to unlawfully kill Janet Jennings?' and the possible verdicts are guilty, not guilty.

If you announce a verdict of guilty, that's the end of the matter. If you find not guilty in relation to that first count, you will then be asked in relation to count 2 whether you find the accused 'guilty or not guilty that on 17 June 2001 at Wiluna, Carey Simms, with intent to maim, disfigure, disable or do grievous bodily harm to Janet Jennings, unlawfully did grievous bodily harm to Janet Jennings.' If you announce a verdict of guilty, that's the end of the matter once again. If you say not guilty, then go down to the third one which is you'll be asked whether or not you find the accused 'guilty or not guilty that on 17 June 2001 at Wiluna, Carey Simms unlawfully did grievous bodily harm to Janet Jennings' and you will announce your verdict in relation to that."

61 There is nothing contained in that oral direction which indicated to the jury the order in which they were to consider the charges. It dealt only with the issue of taking verdicts.

62 After the jury retired to consider its verdict the appellant's counsel sought redirections on several areas of law but none of them related to this issue. However, in the course of those redirections his Honour said to the jury at TS 573 - TS 574:

"(Indistinct) ... as I stated it, you may (indistinct) intend to do grievous bodily harm because he did it, but it's not a necessary (indistinct) you can reach (indistinct) bodily harm but he didn't have any intention to do so and didn't have any intention to maim, disfigure, disable or do grievous bodily harm, in which case you would find that he was not guilty of the second count and move on to consider the third count, a simple one of doing grievous bodily harm with intent. That doesn't really alter what I said to you but it is by way of further explanation."

63 Unfortunately it is difficult to understand the sense of this paragraph because, apparently, the recording of it is not able to be transcribed in full. The subject of the paragraph can be gleaned from the former paragraph and the previous discussion between his Honour and counsel about the proposed redirection. The intention of his Honour was to direct the jury that if it found that the appellant had caused grievous bodily harm it did not automatically follow that he intended to do so.

64 His Honour said that if the jury found that the appellant caused grievous bodily harm but that he did not have the intention to seriously injure the complainant they would "move on" to consider the third count. The transcript states that his Honour identified that as a count of doing grievous bodily harm with intent. That should have been and, if it is a transcription error, may have been a reference to doing grievous bodily harm. In any event counsel did not contend that the jury would have been misled by that reference. The appellant however contends that the jury would have been misled by the words "move on" in that those words would have directed it that it was only if it found the appellant not guilty of doing grievous bodily harm with intent that it would consider whether the accused was guilty or not guilty of the third alternative. I do not consider that those words alone could have led the jury to believe that that was the sequence in which they must consider the charges. This is because if the jury found that the State had proved that the appellant had caused grievous bodily harm but had not proven that he caused it with intent to do serious bodily injury then the charge that would then be logical for them to move to would be causing grievous bodily harm simpliciter. I cannot see how it could be otherwise.

65 The appellant submits that this direction required the jury to consider the second count before it considered the third alternative charge. However logic dictates that if, as in the example given by the trial Judge, the jury found that the appellant caused grievous bodily harm and rejected a verdict of guilty of doing grievous bodily harm with intent it had already considered the third alternative in that it had concluded that he caused grievous bodily harm.

66 The implication from the appellant's submission appears to be that if the trial Judge gave the jury this example of being at a point where it was satisfied that the appellant had caused grievous bodily harm but not with an intent to cause grievous bodily harm or other serious injury and thus he was not guilty of the second charge, he should have directed the jury that it should, at its own discretion, consider either of the other charges. Compared to such a direction the actual direction is favourable to the appellant because it told the jury to consider the charge of causing grievous bodily harm simpliciter rather than moving on to consider the more serious charge which they were equally at liberty to do. Thus the direction did not remove the appellant's chance of being convicted of a lesser charge.

67 I also note that in Stanton's case one of the directions under review was as follows:

"As to murder, you couldn't get to consider the alternative verdict of murder unless you were unanimously of the opinion that the crime of wilful murder had not been committed. You must unanimously come to that conclusion before you move to consider whether the alternative crime of murder has been proved. As to murder, there must of course be a killing by one person of another and the killing must be unlawful, and I have told you about unlawfulness." (My emphasis)

68 The majority of the High Court did not accept that this similar direction was sufficient to show that the trial judge had erred. Consistent with the High Court's approach I do not accept that the direction in this case does either.

69 The appellant also relies upon a written document that the trial Judge provided to the jury. Earlier I have quoted the trial judge telling the jury that there were three charges for the jury to consider. His Honour said, at TS 531D:

"Now, there's a third possibility which is not on the indictment but will be on a sheet of paper which I will give to you to take into the jury room; that is, if you reach a conclusion that there was not intent to unlawfully kill Janet Jennings, no intention to do so, and there was no intention to do grievous bodily harm or to maim, disfigure or disable her, you would still be able to bring in a verdict of guilty of unlawfully doing grievous bodily harm. As I say, that will all be set out on a sheet of paper and you will be able to consider those alternative charges."

70 At the conclusion of his directions, the trial Judge gave the jury, at TS 555, a sheet of paper. I have previously quoted the relevant part of the transcript.

71 Nothing contained in the trial Judge's oral directions infringes the prohibition under consideration in this case. His Honour spoke only about the sequence in which he would take the jury's verdict. However it is clear from these excerpts that the trial Judge gave the jury a document setting out the three alternative charges for the jury's consideration. The appellant alleges that this document mandated to the jury the sequence in which it must consider these charges, as opposed to the sequence in which it would deliver its verdicts in respect to the charges.

72 Unfortunately neither the appellant, nor the respondent, are able to identify the document that went to the jury. Three possible documents were produced during the course of the trial. The first was created by the respondent and marked MFI43. It sets out the three charges and in between counts 1 and 2 has the words "If 'Not Guilty' then consider". These words are also inserted between count 2 and the uncharged alternative of unlawfully doing grievous bodily harm ("the first document"). The appellant says that it is more likely that the trial Judge gave the first document to the jury. The second document was also created by State. It sets out the three charges and has only the word "Alternatively" between them ("the second document"). The respondent says that it is more likely that the trial Judge gave the second document to the jury.

73 The third document was created by the trial Judge and the parties agree that this document did not go to the jury as it was only to be used if the trial Judge decided to direct the jury in the manner described by Murray J in Stanton's case. His Honour decided against this course and asked the State to provide the requisite number of copies of its document for the jury. By this time the State had prepared the second document and provided it to the trial Judge. The second document was prepared as a consequence of the trial Judge's request that "if 'not guilty' then consider" be removed from the first document.

74 Looking at the transcript and the documents themselves, I am satisfied that the second document was provided to the jury. This document does not infringe the prohibition against directing a jury as to the sequence of its deliberations upon the charges. It speaks merely of the possible verdicts open to the jury and the sequence in which the verdicts would be taken.

75 There is one proviso to my satisfaction that it was the second document which went to the jury. It is that that the court file does not contain a copy of this document. In fact the court file does not contain a copy of either the Judge's document or the second document.

76 It is the appellant's obligation to satisfy the Court of matters of fact supporting his grounds of appeal. He acknowledges that he is unable to establish that it was the first document that went to the jury. On one view of it that is the end of the matter. However in fairness to the appellant, as the State is also unsure as to which document went to the jury, I will also consider, if it was the first document that went to the jury, whether it breaches the prohibition against directing a jury as to the sequence of its deliberation of the charges.

77 The words "then consider" in the first document are unfortunate as they are apt to indicate a sequence of consideration of the alternative charges as opposed to a sequence of the delivery of verdicts. As an aside, the trial Judge appreciated this at an early stage of the trial and that is why he directed the State to change the wording on the first document. This appreciation militates against the suggestion that the trial Judge ultimately allowed the first document to go to the jury. Nonetheless, a consideration of the first document, in the light of the trial Judge's directions and the issues raised at the trial, does not disclose error.

78 I have already quoted what the trial Judge said when he handed the document to the jury. He indicated that the reason why he was giving the jury a document was to tell them what would happen when they came back in and what questions they would be asked. The first and second documents reflect this issue because they are both headed "possible verdicts". He then took the jury through the sheet and the possible verdicts. At no stage did he refer to a sequence in which the jury should consider the charges. He only referred to the manner in which the verdicts would be taken. No objection was taken to the Judge's directions in this respect. Nor did the jury have any queries with respect to the trial Judge's directions on this issue.

79 As the majority of the High Court said in Stanton's case, in deciding whether a trial Judge has mandated to the jury a sequence of its deliberations upon the charges, it is necessary to consider not only what the trial Judge said to the jury but also the issues raised at trial. In this case the appellant did not dispute that he caused grievous bodily harm to the complainant. Once the jury decided that the State had negatived self defence, it only had one issue to determine, being the intent of the appellant when he inflicted the injuries on the complainant. Depending upon its view of this issue the appellant was guilty of one of the three charges left for its consideration. As a practical matter it is difficult to imagine how any jury could consider whether the appellant had an intention to kill the complainant in isolation from considering whether he had any other intention or no intention to harm the complainant at all. Further, nothing the trial Judge said to the jury directed it that it was obliged to perform such an artificial and logically difficult task. Whilst the wording of the first document is unfortunate, I do not believe that if it was provided to the jury it would have, when read in conjunction with the trial Judge's other directions and the issues raised at trial, misled the jury into believing that it must consider the charges in descending order or deprived the appellant of a chance of conviction on a less serious charge.

Ground (e) - Direction on the Relevance of Intoxication to Intent

81 There is a very helpful and well known passage in Viro v The Queen [1978] HCA 9; (1976) 141 CLR 88, per Gibbs J at 112 which sets out the basic requirements of a direction to the jury when intoxication through drugs or alcohol is an issue for the jury in relation to the drawing of an inference about an accused's intention. His Honour said:

"In a case where there is evidence fit to be considered by a jury that the accused was intoxicated as a result of the consumption of drink or drugs, it is not enough to tell the jury that the Crown must prove beyond reasonable doubt that the accused had in fact formed the requisite special intent. They should also be told that the fact that the accused was intoxicated, whether by drink or drugs or by a combination of both, may be regarded for the purpose of ascertaining whether the special intent in fact existed. It should be explained that evidence that the accused was intoxicated will not in itself entitle him to an acquittal, because a person when intoxicated may form the necessary intent, and one who has formed the intent does not escape responsibility because his intoxication has diminished his power to resist the temptation to carry it out. However, the jury should be told that if, because of the evidence as to the effect of the intoxication or otherwise, they are not satisfied that the accused did in fact have the necessary intent, they must acquit of the crime which involves that intent."

82 Of course, this direction is in addition to the usual direction about the circumstances in which the jury may draw an inference against the accused. Shepherd v R [1990] HCA 56; (1990) 170 CLR 573 and Chamberlain v The Queen (No 2) [1984] HCA 7; (1983) 153 CLR 521 are authorities for the proposition, consistent with the onus borne by the prosecution to prove guilt beyond reasonable doubt, that an inference of guilt may not be drawn from circumstantial evidence unless the circumstances found by the jury exclude any reasonable hypothesis consistent with innocence. As Dawson J, with whom Mason CJ (in separate reasons), Toohey and Gaudron JJ agreed, put it in Shepherd at 579:

"It will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence."

83 A direction in these terms was given to the jury. The trial Judge gave the jury the following direction about intoxication and intention:

"In relation to intention, because it's what's going on in your mind, alcohol consumption is relevant to whether or not you conclude beyond a reasonable doubt that Mr Simms did have the intention to unlawfully kill Ms Jennings.

There is clear evidence that there had been alcohol consumption in this case. I will deal with that evidence in a moment. I will try and draw all of that together because it has taken place over a few days. His intoxication, the degree of intoxication, can be taken into account in deciding whether or not he had the intention to kill.

The evidence that the accused was intoxicated would not in itself entitle him to an acquittal because a person when intoxicated may still form the necessary intent and a person who forms the intent does not escape responsibility because his intoxication has diminished his power to resist the temptation to carry it out. However, if because the evidence as to the effect of intoxication means that you're not satisfied beyond a reasonable doubt that he had the necessary intent, then it is your duty to acquit the accused of the first charge. When I say 'necessary intent' that's the intent to unlawfully kill."

84 The above direction is entirely consistent with the quoted excerpt from Viro v The Queen (supra). At the conclusion of the trial Judge's directions the appellant's counsel submitted, at TS 559 - 562, that his Honour's directions on the relevance of intoxication to intent had been inadequate. His Honour agreed to redirect the jury on this point and did so, at TS 574 - 575, saying:

"The final point is in relation to the effect of alcohol in relation to intention. You may remember that I said in relation to the first count the question is whether there's an intention to unlawfully kill. If you consider that hasn't been established then you move on to consider the intention to - whether or not he has the intention to maim, disfigure, disable or do grievous bodily harm.

I mentioned the effect of alcohol is relevant in that regard. I have been given a copy of a fuller direction in relation to the effect of alcohol and the significance of it which contains within it some of the statements that I made to you but I want to just go through what has been provided to me.

There's just two or three remarks that will conclude what I have to say. We're dealing here with the question of intention and whether or not an intent could have been formed and what the effect of alcohol was. This is an additional direction that I give you.

The significance of alcohol is that it can act in a variety of ways. It can, for example, lead to a loss of normal constraints and lessened self-control. It can lead to loss of inhibitions or to unexpected changes of mood. It can affect judgment. People might become more angry about some event if they are affected by alcohol than they might if they were completely sober, so it can lead to loss of inhibitions, to unexpected changes of mood and it may affect a person's judgment. It may diminish the capacity of a person to appreciate the consequences of what he or she does but it does not necessarily follow that a person who has consumed alcohol does not do an act or acts with a particular intention.

There may be things that a person would not attempt in the cold, hard light of day when the affect of alcohol has worn off but nevertheless he may have intended to do what he did when he did it. It works both ways. In some cases you may form the conclusion that a man is drunk that that his acts were really drunken acts and he did not do them with the intention of bringing about any particular result, though you might have reached the contrary conclusion on the facts had he not been drunk.

In other cases, you may say he would never have done this if he had been completely sober but he was drunk or affected by alcohol. A drunken man can form an intention just as well as a sober man. Though you might think he would never have formed the intention had he been sober, you might think that he did form the intention while he was under the influence of alcohol. It is for you, members of the jury, to consider the relevance of the alcohol consumed by Mr Simms on the question of intent. It is for you to consider the amount of alcohol that you find was consumed by him if it raises a reasonable doubt about his intention. If it does, then the crown has not discharged the burden of proving that intention."

85 The directions and redirections adequately and correctly directed the jury with respect to the relevance of intoxication to proof of intention.

86 The appellant's written submissions assert that the trial Judge failed to direct the jury that "there might be other inferences open given the appellant's state of intoxication". This simply is not correct. Whilst the trial Judge's original direction may have raised this possibility obliquely, the redirection was clear in this respect. The redirection from the words "It works both ways" expressly directed the jury that because of the effect of alcohol it may conclude that the appellant's acts were not done with a particular intention. His Honour, as he was entitled to do, went on to say that the jury may come to the opposite view. It is not appropriate, as the appellant seeks to do, to look at one part of the trial Judge's redirection without reference to another part of it.

87 The appellant submits that the jury should have been "reminded that they could only find any of the relevant intentions proven beyond reasonable doubt if they were the only reasonable inference open to them on the evidence". I take this to be a criticism of the absence of any repetition of the trial Judge's direction on the drawing of inferences when he redirected the jury on the relevance of intoxication. I do not see that there was any need for his Honour to remind the jury about what he had said earlier about the drawing of inferences. At the start of his redirection he reminded the jury that alcohol was relevant to whether the appellant had an intention to kill or cause serious injury to the complainant. He concluded his redirections by saying that if the jury found that the amount of alcohol the appellant consumed caused them to have a reasonable doubt about his intention, then the State would not have discharged its burden of proving that intention. That was a sufficient reminder to the jury of the broader context in which they had to consider his redirection.

88 The appellant submits that the jury should have been "specifically directed to consider whether the required intent on the first two counts was the only reasonable inference given the appellant's level of intoxication". There is no requirement for a jury in a case such as this to be expressly directed as suggested by the appellant. Although the words suggested by the appellant were not used, the clear import of the whole of the trial Judge's directions was to the same effect.

89 The appellant's final written submission is that the jury should have been directed that if it was satisfied that the appellant was incapable of forming the required intention due to his intoxication it should have been directed that that inference was consistent with a verdict of not guilty on the first two counts.

90 The jury was directed that the State had the burden of proving all of the elements of the charges (TS 532). It was further directed (TS 534 and 543) that the first two charges each had an element requiring proof of a specific intention and that if the amount of alcohol the appellant had consumed raised a reasonable doubt about the appellant's intention then the State had not discharged its burden of proving that intention (TS 575).

91 Although his Honour, on at least one occasion (TS 575) used words which may have indicated that the issue was whether, because of the appellant's intoxication, he had the capacity to form an intention, the issue was in fact whether he had formed the intention, not his capacity to do so. To the extent that the appellant's submission suggests that the jury should have been directed that the issue was one of capacity, it is wrong in law. Otherwise the jury were properly instructed.

Ground (f) - Failure to Demonstrate that Several Inferences can Sometimes be Drawn from the One Set of Facts.

93 The appellant submits that when his Honour gave examples of the drawing of inferences he only gave examples where one inference was drawn from a set of facts. His Honour gave the jury two examples of the drawing of inferences. The first was where somebody enters a room with a wet umbrella and there is an inference that it is raining outside. The second was where a driver slows down at a pedestrian crossing which is showing a green pedestrian light there is an inference that the car will stop. The appellant submits that this was a case where more than one inference could have been drawn as to the appellant's intention. Therefore his Honour should have given an example of a factual situation from which two reasonable inferences could be drawn from the one set of facts.

94 It is not appropriate to give a direction to a jury which directs it that if there is more than one reasonable inference open on the facts then it should draw the inference that is most favourable to the accused. In Wedd v The Queen [2000] WASCA 273 at par 40 - 41 Murray J criticised a direction that was in the following terms:

"That means if there are competing inferences equally open that can properly be drawn it would not be proper to draw an inference against the accused."

"That direction involved an obvious departure from the appropriate standard of proof from which, in my opinion, the direction was not able to recover when her Honour went on to say that if there was more than one reasonable inference that could be drawn, the applicant was entitled to have that resolved in the manner most favourable to him. This area of the law is not about drawing inferences one way or the other, either in favour of or adversely to the interests of the accused. It is about the capacity of the jury to draw an inference of guilt of the offence charged."

96 Although his Honour's direction in this case is capable of being interpreted in the same way I am not of the view that it gives rise to an appellable error for two reasons. The first is that the appellant does not appeal against the trial Judge's direction in this respect. The second is that his Honour immediately went on to say that his direction followed from the fact that the appellant was presumed to be innocent and because of the State's obligation to prove his guilt beyond reasonable doubt. That direction removed the potential for the jury to misunderstand the onus of proof in relation to the drawing of inferences: Beresi v The Queen [2004] WASCA 67 at par 86.

97 Disregarding the appellant's apparent misunderstanding of the law, the essence of this ground of appeal is that the trial judge should have given a direction to the jury which demonstrated by example that sometimes it is possible for more than one inference to be drawn from the same set of facts. No request was made to do this at the conclusion of the directions. It is by no means a requirement that such examples be given. His Honour's directions on the law made it clear that sometimes more than one inference can be drawn from the same set of facts. When redirecting the jury on the issue of intoxication and intention the trial Judge told the jury that there were different conclusions it could come to about the intention of the appellant after having regard to the role that it thought alcohol played in the assaults. The jury would have clearly understood that it sometimes was possible to draw more than one inference from the one set of facts. No further example was required to illustrate this point.

99 For the foregoing reasons I would dismiss this appeal.

• Grounds of Appeal
• Background
• Ground (a) - Directions to the Jury as to Order of Deliberations

• Stanton's Case
• Appeal to the Court of Criminal Appeal in Stanton's Case
• Appeal to the High Court in Stanton's Case
• The Directions in this Case

• Ground (e) - Direction on the Relevance of Intoxication to Intent
• Ground (f) - Failure to Demonstrate that Several Inferences can Sometimes be Drawn from the One Set of Facts.
• Conclusion