Sullivan v R

Judgment 1McCLELLAN CJ at CL: I agree with Blanch J. 2BLANCH J: The applicant seeks an extension of time within which to appeal against his conviction for murder and for leave to appeal against the sentence imposed. The grounds of appeal are: (1)The trial miscarried as a result of a failure to direct on intoxication. (2)The trial miscarried as a result of a failure to insufficiently direct on reckless indifference. (3)The verdict was unreasonable. 3The trial occurred between 24 June and 7 July 2009 and a verdict of guilty of murder was returned by the jury on a charge that on 3 October 2007 at The Entrance in the State of New South Wales the applicant did murder Adam Guy Prochilo. 4On 9 July 2010 he was sentenced to 25 years imprisonment comprised of a non-parole period of 18 years and 9 months and a balance of term of 6 years and 3 months to date from 7 October 2007. The facts 5The applicant and the deceased were known to each other. The applicant sold drugs to the deceased which were sometimes paid for in money and sometimes in the form of goods. Prior to 3 October 2007, the date of the alleged offence, there had been animosity between the applicant and the deceased. Mr Gould, a neighbour of the applicant, gave evidence that the applicant said to him that his wallet had gone missing and he knew who it was, that he had had a shower and when he came back his wallet was missing. He said the applicant said it was about drugs and that the name of the person was Adam. He said the applicant was agitated and angry and said "... he was going to stab him next time he came around." 6The deceased, Adam Prochilo, visited the applicant at his home at The Entrance shortly after 1.11 a.m. on the morning of 3 October 2007. There was evidence the deceased was in need of money to fund pending legal proceedings. There were three guests asleep in the lounge room of the applicant when the deceased arrived. They gave varying accounts of what they saw and heard but they did see the applicant holding a knife with blood dripping from the blade and he co-opted them into cleaning up the blood and disposing of the knife. In respect of two of these witnesses, the judge gave a warning about the unreliability of their evidence under s165 of the Evidence Act because of their chronic alcoholism. A neighbour, Mr Bradshaw, heard someone in the applicant's house say "Sorry mate, sorry mate I didn't mean it" and then that man hurried off into the street. The deceased left the applicant's property and he was heard by another neighbour at his front door calling for help and saying that he had been stabbed in the chest. He died before he could receive any medical attention. 7The applicant's evidence was that the deceased came to the house to get drugs on credit. He refused him and there was an altercation in which the applicant punched the deceased and the deceased fled. Some short time after, the deceased came "flying through the door" and attacked him causing him to fall from his chair and slide across the kitchen floor. In his evidence the applicant said he was repeatedly hit about the upper body by the deceased and believing he was going to be seriously injured, he reached up for the knife and swung it around blindly in the direction of the deceased, thus causing the fatal stab wound. 8Arising from these facts the Crown case at trial was that the applicant was guilty of murder pursuant to s18A Crimes Act on the basis that the act causing death was done with reckless indifference to human life or with intent to kill or inflict grievous bodily harm. The grounds of appeal 9The first ground of appeal is the trial miscarried as a result of a failure to direct on intoxication. 10The applicant gave evidence at trial that during the day and evening prior to the arrival of the deceased he had smoked three or four cones of cannabis which he shared with two of his guests, Mr Thompson and Ms Walker. He said that prior to the arrival of the deceased the last occasion he had used cannabis was at about 9.00 p.m. or about three hours prior to the arrival of the deceased. He was asked in chief how he was feeling so far as the marijuana was concerned and the following passage of evidence occurred: Q. Just before Mr Prochilo came, how were you feeling so far as the marijuana was concerned? A. Just cruising, just out of it, whacked, you know. Q. Sorry? A. Just out of it, you know, whacked. Q. Out of it, whacked. What do you mean by that? A. Yeah, just a bit whacked, just cruising well. Stoned. Q. Stoned and what do you mean by that? A. Out of it. Just out of it, stoned. Out of it mate, stoned, cruising. Q. You also say that you'd taken some amphetamine during the day? A. Yeah. Q. So how many times before Mr Prochilo came the first time had you taken amphetamine on that day or night? A. How many times have I taken it that night and day? About three times, four times that day. Q. So by the time Mr Prochilo came the first time to see you, how many times had you taken marijuana? A. About three. Q. How many times had you taken amphetamines? A. About three. 11He also gave evidence that on the afternoon of 2 October 2007 he had taken half a gram of amphetamine on three or four occasions and he had a further half a gram of amphetamine in the five to ten minutes between the time the deceased left his residence and later returned attacking him. His account was that on the night the deceased was killed he had come, then left and then returned. The applicant said the total amount of amphetamine of about one gram had an effect on him. He was asked in cross-examination to describe it and he said "It sort of - it picks you up. It picks you up. Like, if you play sport it picks you up. You know what I mean? It'll fix your - it'll - your reflexes speed up, more energy." He went on to say "I was just - just cruising, just cruised. It just made me cruise." 12In the course of the closing address by the Crown Prosecutor, the trial judge asked the defence whether any directions were sought relating to the taking of amphetamine and defence counsel indicated the defence would seek to rely on the use of cannabis and amphetamine in relation to the subjective element of self-defence. At page 1076 of the appeal book her Honour referred to the fact there was no pharmacological evidence about the effect of marijuana and she was concerned the jury were being asked to speculate. At page 1088 her Honour said: "The mere fact that he had a cone of marijuana three hours before the deceased came around to his house leaves, in my thinking, no likelihood or any real possibility that your client was intoxicated at the time of the stabbing." 13She repeated at page 1092: "And simply because there is nothing upon which the jury in my view could form a reasonable view that at the time of the stabbing he was intoxicated by the marijuana. He might have been affected by it." 14Her Honour indicated at page 1102 that: "... my provisional all but settled view Mr Jeffreys is that I won't leave it on the 428 basis but will, as I say, make reference to it in the other context." 15Her Honour was there referring to the context of the defence of self-defence. At the end of the summing up counsel for the applicant raised the issue again and said "... I take it your Honour's not - going to leave it" and her Honour said "No". 16The other evidence as to this issue came from one of the applicant's guests Mr Thompson who said he had consumed three bottles of beer but the applicant had no alcohol. He said that he and the applicant had shared three or four cones of cannabis during the day prior to the arrival of the deceased. He was one of the witnesses in respect of whom a warning about unreliability was given. 17Ms Walker, another guest, said the applicant had not consumed alcohol or cannabis but she had been drinking alcohol and smoked two cones of cannabis. She claimed not to have had any continuing effects. She was also a witness about whom the unreliability warning was given. 18Ms Turnbull, another guest, said she observed the applicant, Mr Thompson and Ms Walker all using cannabis during the afternoon. 19During the course of the summing up at paragraph 194 on page 99 of the appeal book her Honour did refer to the applicant's evidence that he was "stoned, whacked, he was out of it". At paragraph 223 at page 108 of the appeal book her Honour said: "You might, if you reach the point of giving consideration to self-defence in this case, take into account that the accused on his own evidence was affected by cannabis when he struck out in the way that he describes, which he told you made him feel "whacked" and you might also take into account that, on his evidence, he had just had some amphetamine, and you might consider in those circumstances whether the drugs or either of them might have affected his perception of the threat and also his perception of what was necessary for him to do to defend himself in the situation in which he found himself." 20So far as the trial itself was concerned the approach taken by the defence was to advance the proposition that the applicant was acting in self-defence because he believed it was necessary for him to use the knife to defend himself and that in making a judgment about the accused's belief it was necessary to take into account he was affected by drugs. It would have been tactically difficult for the defence to mount an alternative argument before a jury that the accused did not foresee the probability of death or serious injury because of the effect of the drugs. 21The question raised is whether, in view of the evidence given, the trial judge should have directed the jury that because of that evidence they should acquit the accused of murder and find him guilty of manslaughter, if the Crown had failed to prove beyond a reasonable doubt the accused did foresee the probability of death or serious injury because of the evidence of intoxication by drugs. The law 22In Regina v Stones [1956] State Reports 25 the Court of Criminal Appeal substituted a verdict of manslaughter in circumstances where there was considerable evidence about the intoxicated state of the appellant. The Court there held that when analysing the mental element of murder: "The important thing is not the desire of consequence, i.e. motive or intent, but merely foresight of consequence which is the common factor to intention and recklessness." and on that basis intoxication was a relevant factor to be considered in relation to a charge of murder, even where it was alleged the accused acted with reckless indifference to human life. 23Now in New South Wales by virtue of s428C(1) Crimes Act intoxication may be taken into account in determining whether the person had the specific intent if one is required. By virtue of s428B(1) murder is included as a crime of specific intent. 24In Viro v The Queen (1976-1978) 141 CLR 88 at page 112 Gibbs J as he then was 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." 25The issue was considered in the case of R v Andres Galambos (1980) 2 A Crim R 388. In that case in an unsworn statement the appellant claimed he had been drinking for a considerable time prior to the offence. He did not expressly allege he was intoxicated at the time of the offence and his counsel did not seek to raise the issue and the trial judge gave no directions about intoxication. In the judgment of Hunt J, with whose judgment Samuels JA agreed, at page 395 said: "The question for this Court is whether the material so relied upon by the appellant provides a sufficient foundation for a direction that the onus lay on the Crown to remove any doubt that material may raise ... " 26His Honour pointed out that "The material relied on by the appellant is certainly very brief." He said it was possible to interpret what the appellant said as indicating he had been drinking alcohol all the previous evening and before he confronted his wife with a rifle in the morning he had consumed a number of double scotches within a short period. It was noted there at page 397 that although the trial judge had asked counsel for the applicant at the trial whether he sought a direction in relation to intoxication that it would have been very difficult in front of the jury tactically for defence counsel to ask for such a direction in circumstances where his defence was he had not intended to fire the rifle and his Honour referred to the decision of the High Court in Pemble v The Queen (1971) 124 CLR 107 at page 117: "Whatever course counsel may see fit to take, no doubt bona fide but for tactical reasons in what he considers the best interest of his client, the trial judge must be astute to secure for the accused a fair trial according to law. This involves, in my opinion, an adequate direction both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part." The Court allowed the appeal and substituted a verdict of manslaughter. 27In Bellchambers v Regina [2008] NSWCCA 235 this Court emphasised that the test where intoxication was a relevant issue was not whether the accused had the capacity to form the intent but whether he had in fact formed the intent. In R v White, Evans and Parker (1988) 17 NSWLR 195 this Court stressed that in a case of murder by reckless indifference to human life the accused must foresee the probability of death. This decision was endorsed by the High Court in Royall v The Queen (1990) 172 CLR 378 at 395. 28The question for consideration is whether the evidence of the applicant that he was "out of it" and "whacked" by the drugs he had taken should have been left for the jury to consider on the basis that it was relevant in determining if the prosecution had proved beyond reasonable doubt the applicant had the requisite intent namely foresight of the probability of death or grievous bodily harm. 29In R v Shaw (1981) 2 NSWLR 648 the Court was dealing with a conviction for murder where the deceased had been killed by seven blows from a tomahawk while in bed. His flatmate was convicted although he said he came home late at night and he found the deceased already dead. In his record of interview when asked about his state of intoxication he said "I would say half whacked, three quarters whacked. I knew what I was doing." An off duty police officer who saw him in the street that night said "I could tell he had had something to drink but he was well aware of his senses." In an unsworn statement at his trial the applicant said "I was quite drunk at the time, three quarters drunk." 30A challenge was mounted to the conviction on the basis that the judge had withdrawn the question of intoxication from the jury. In the course of giving his judgment Street CJ said at page 651: "The scope open to a trial judge to evaluate whether there is evidence fit to be considered by a jury necessitates an evaluation of the evidentiary material before the jury at the conclusion of the trial. As Barwick CJ pointed out in R v O'Connor (1980) 54 ALJR 349, at p 358; 29 ALR 44, at p 466: "If the evidence, if accepted, is not such as to be capable of raising a doubt as to either of the basic elements, voluntariness or actual intent, there being no other material to suggest a lack of voluntariness or actual intent, that evidence can be withdrawn from the jury's consideration." Such exiguous evidence as was before the jury in the present case, if it could be described as evidence of intoxication, was in my view far too insubstantial to justify any weight being placed upon it, bearing in mind, I repeat, the context of the course of the trial and the course of evidence." 31His Honour was there referring to the seven blows with a tomahawk that might indicate an intent to kill or cause grievous bodily harm. 32Similarly in the case of R v Murray and R v Manton (1980) 2 NSWLR 526 this Court by majority rejected an appeal based on the failure of a trial judge to direct the jury on the possible effect of intoxication on intent in a case where the appellant said he was "really pissed" but denied raping the victim. No direction was sought at the trial. Special leave to appeal to the High Court against this decision was refused. 33The Crown argues the issue of intoxication should not have been left to the jury and points to the absence of any mention of his intoxication in the record of interview, the absence of cross-examination of witnesses on the issue and the failure to mention it in the opening by the defence and indeed the failure to mention it until the end of the trial. On the other hand the main defence advanced by the applicant was that of self-defence which involved his belief he was being attacked and his response was necessary to defend himself and that his conduct was a reasonable response in the circumstances as the applicant perceived them. A submission that the applicant might not have foreseen the probability of at least serious injury would not sit well with a jury for tactical reasons. That, however, does not relieve the Crown of proving its case beyond reasonable doubt and in a proper case it does not relieve the Crown of dealing with the issue of intoxication even if not raised by an accused - see Pemble (supra) and Galambos (supra). 34In this case it is understandable there was no cross-examination of the three witnesses who were guests as to the state of intoxication of the applicant. To suggest he was so intoxicated he might not have the relevant intent would tend to contradict the defence being raised that he was acting in self-defence. The result, however, is that no evidence of intoxication exists save the evidence of the applicant at trial. That evidence must be evaluated against his other evidence relating to self-defence. That other evidence involved a detailed account of an altercation with the deceased on what the applicant said was his first visit to the house and that involved him punching the deceased and chasing him off. He then gave detailed evidence of going back into the house, turning on the jug and setting about cutting up cones of cannabis while sitting on a chair. He said the jug boiled and he mixed up a "few lines" of "goey" or "speed". He then described the deceased as coming back 15 minutes later and there followed a detailed description of an attack on him which led him to believe it was necessary to use a knife to defend himself. 35The authorities clearly establish the need to alert the jury to all relevant legal considerations even if they are not relied on by the defence because sometimes there may be tactical reasons to explain the omission by the defence. On the other hand if the evidence is not capable of raising a doubt it is permissible for the judge to decline to put the issue before a jury even when asked by counsel to do so. 36In this case the only evidence of intoxication was the somewhat imprecise evidence of the applicant that he was "whacked" or "out of it" or "cruising" and his detailed evidence of his actions that night and his recollection of them contradicts any suggestion that his mental state was such as to raise as a reasonable possibility the fact that he did not have the relevant intent. In those circumstances I do not believe the trial judge erred in not placing the issue before the jury. 37It follows that even if I had been able to conclude there was evidence such as to require it to be placed before a jury, I would also conclude that no substantial miscarriage of justice has occurred in accordance with the proviso to s6(1) Criminal Appeal Act 1912 because of the weakness of the evidence. 38The second ground of appeal asserts "The trial miscarried as a result of a failure to insufficiently direct on reckless indifference." In support of this ground it is submitted the jury should have been told the Crown had to establish that the accused's knowledge of probability had to be a substantial or real likelihood as distinct from a mere possibility. Crabbe v The Queen (1985) 156 CLR 464 is quoted as authority for this proposition. 39I do not believe any authority suggests that the knowledge has to be of a substantial likelihood. On the other hand there is ample authority the accused must foresee the probability of death (see for example White supra). In this case the jury was given a written direction defining reckless indifference as "An Act is done with reckless indifference to human life if the accused foresaw or realised that his act would probably cause the death of the deceased but he continued with that act regardless of the risk of death." That direction is in accordance with the law and it was repeated in the summing up. There is no error and I would dismiss this ground of appeal. 40The third ground of appeal asserts the verdict is unreasonable. 41In SKA v The Queen [2011] HCA 13 at paragraphs 11 to 14 the High Court reaffirmed its decision in M v The Queen (1994) 181 CLR 487, that where there is a ground of appeal that the verdict is unreasonable: "... the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty." 42The Court went on to say: "13. The starting point in the application of s6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say: "In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred." Save as to the issue whether the Court of Criminal Appeal erred in not viewing a videotape of the complainant's police interview, to which reference will be made later in these reasons, this qualification is not relevant to the present matter. 14. In determining an appeal pursuant to s6(1) of the Criminal Appeal Act , by applying the test set down in M and restated in MFA , the Court is to make "an independent assessment of the evidence, both as to its sufficiency and its quality". In M, Mason CJ, Deane, Dawson and Toohey JJ stated: "In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand'." 43The starting point for a review of the evidence is that the applicant said that he did stab the deceased and it is clear that stab wound caused the death of the deceased. The version given by the applicant was that the deceased came to get drugs from him but he wanted the drugs on credit. The applicant refused the request and there was an argument during which the applicant thought the deceased was going to hit him so he punched the deceased who then fled. He said he sat down to cut up cones of cannabis and about 15 minutes later the deceased unexpectedly "came flying through the door". He said he was attacked by the deceased so that he ended up on the floor. He tried to get up but the deceased attacked him again punching him and kneeing him in the face. He said he ended up facing front on to a cupboard on his knees and the deceased came towards him again with his arm up. He thought the deceased was going to "flog him". He said "I thought I was done 'cause I thought he was going to flog the shit out of me." He said he then "just grabbed one of the knives and flung me arm back". He went and hid but he could not see whether he was bringing the knife. He said the deceased held his chest, said the applicant's name and then went out the door. He also said that after the deceased left his own nose was bleeding and he had to attend to his nose. The issue in the case was thus an assertion of self-defence. 44Benjamin Gould was a neighbour of the applicant and had known him for some months before September/October 2007. His evidence was that some time before 3 October 2007 that some days earlier the deceased had stolen the applicant's wallet with $600 in it and he was going "to stab him next time he came around". He went on to say that after the fatal stabbing the applicant told him that the deceased had come to his residence on the night, came in and tried to stand over him but the applicant said "Hang on a minute", went into the room and came back out and stabbed him. He told Gould the deceased was standing with his hands up at about shoulder height with his palms out, when he stabbed him and said to him "No Sul". He told Gould he went towards the deceased who fell to the ground, then got up, ran out the door chased by the applicant's dog. He also said the deceased "burst open like a stuffed pig and bled everywhere". There was evidence that the deceased was in need of money for court proceedings. 45Another neighbour Glenn Bradshaw gave evidence that he knew the voice of the applicant. On the night of 2 and 3 October 2007 he awoke and in the early hours of the morning of 3 October he heard muffled voices, a sound of a door open and close and then "what sounded like someone being winded". He then heard someone call out "Sorry mate, I'm sorry mate, I didn't mean it, I'm sorry". This voice was a panicky voice which he did not recognise. He then heard hurried footsteps away from the applicant's house. 46The three guests Mr Thompson, Ms Walker and Ms Turnbull also gave evidence although there was a warning to the jury about the unreliability of the evidence of Mr Thompson and Ms Walker. Jeffrey Thompson said he had known the applicant for 20 years and was staying with the applicant for two days prior to 2 October. He acknowledged he had been drinking during the course of the day and was "a bit pickled". He said during the night he was woken by knocking on the door. He heard a voice calling out "No, no Tony no" and that voice was not the applicant's. He then heard a bang. He then got up and went to the door and the applicant was there with a knife and said to him "Take this". He said the applicant had come running in from the stairs of the house. He had first refused to take the knife but the applicant insisted and he took it down to the back fence and put it into the ground. The knife was covered in blood and he took it down to the back fence "walked around the alley way right and put it down into the ground". 47Jane Walker said she had known the applicant for 25 years and the witness Thompson was her partner. She said she went to the house at 5.00 p.m. on 2 October 2007. She said she drank four cans of beer before going there and drank two long necks during the night. She had not intended staying but because of the amount of alcohol she had she decided to stay the night and went to bed at about 10 or 11.00 p.m. She heard a knock at the door at 2 o'clock and a voice call out "No Tony no". She said it was "a scared voice". She said she and Jeffrey Thompson got up and she saw the applicant in the doorway of the lounge room very agitated. He said "I think I've killed a man." He had something in his hands and asked "Jeff to take it". He asked him to "throw it in the lake". She asked the applicant what happened and he said "That man ripped me off for mobile phone $400." She did not see any injuries on the applicant. In cross-examination she said he didn't say anything directly to her but he spoke to "Jeff" and she said what he said to "Jeff" was "I think I've killed or I stuck it right through him or something to that effect". 48Susan Turnbull met the applicant four days before 2 October 2007. She arrived at his home at 11.00 a.m. on the 2 nd . She said she did not drink and did not use cannabis. She said she was watching television after dark and she heard a thud and someone calling out "Oh no". After a short gap she heard the applicant call out to Thompson telling him to come and she then saw the applicant give Thompson a knife that had blood dripping from it. The applicant told Thompson to throw the knife in the lake. Her evidence was the applicant then demanded both Jane Walker and she help him find where the blood was and help him clean it up. She said she did not notice any injuries on the applicant nor did he complain of any injuries. She noticed blood on the applicant's hands and the front of his clothes. She said that when Thompson came back after disposing of the knife he said to the applicant "Did you get him?" and then "Tony said that he did once. He put it - his right hand to his left side of his chest, and Jeff asked Tony did he kill him and Tony said, "If I'd fucking killed him he would have been lying here wouldn't he?" And Tony kept on saying, "We've got to clean this place up." 49After the event there was a covert recording of 7 October 2007. In that listening device recording the applicant said " at least I put him down... I told him to go out there and he [came] up to his ... doorway right... don't forget because he called me an old man and then he called me little fella after that ... I went bang straight into the chest ... He put the bite. He put the bounce put the bounce on him one step and put one get in early...". 50The applicant argues that the evidence of Ms Turnbull in cross-examination that she heard a thud, the scraping of furniture and then a voice say "Oh no" is consistent with the account of self-defence given by the applicant. It is also argued that the amount of blood in the kitchen indicates that is where the stabbing occurred rather than closer to the front door. 51It is argued that the finding of the applicant's blood in the kitchen also supports the applicant's claim of self-defence in a struggle. 52Those submissions do not in my view raise any doubt about the prosecution case. The evidence establishes to me that the applicant admitted the stabbing to the jury. He did not mention self-defence immediately afterwards to any of his guests and what he did say to his guests was not consistent with his actions being in self-defence. His attempts to clear up the blood in his house and the insistence on the disposal of the knife might be consistent with someone who simply panicked but in view of what he said to the three guests it is more likely he was attempting to conceal a crime. The evidence of Mr Gould and the evidence from the covert recording is evidence of a deliberate act done by the applicant which was not in self-defence. When all of the evidence is considered, it clearly proves the act of the applicant was deliberate and that it was not done in self-defence. I am satisfied beyond reasonable doubt of the guilt of the applicant of murder and I am thus satisfied the verdict of the jury was not unreasonable. I would dismiss the appeal against conviction.