Criminal law and procedure - Appeal against conviction - Wilful murder - Intent - Trial Judge's direction as to anger - Effect of anger in the formation of an intent - Inference direction - Intoxication - Turns on own facts

Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82

Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234

R v Mazzitelli [2002] NSWCCA 436; (2002) 135 A Crim R 132

R v Schonewille [1998] 2 VR 625

1 MURRAY J: I agree with Wheeler J. The orders of the Court should be as her Honour proposes. I have nothing to add.

2 TEMPLEMAN J: I have had the advantage of reading in draft, the reasons to be published by Wheeler J. I agree with those reasons and with the orders proposed by her Honour.

3 WHEELER J: This is an application for extension of time within which to appeal against conviction. The appellant conceded that the explanation for the delay in filing the application did not provide an adequate basis for allowing an extension of time. He therefore sought to demonstrate that a miscarriage of justice would result if an extension of time were not granted. The Court heard the argument in relation to the extension of time and in relation to the appeal together.

4 On 16 June 2003 the appellant was convicted following a jury trial of one count of wilful murder. The facts, broadly, were as follows. The appellant and the deceased were husband and wife and their relationship had been on foot for 20 years or thereabouts. They had been in Laverton together just before Christmas of 2001, when the deceased left. The appellant had been told that she was seeing another man and he believed this to be true.

5 The appellant left Laverton and made his way to Kalgoorlie, where he met someone who told him where the deceased could be found. He encountered the deceased in a laneway and began to talk to her. He and the deceased walked to a place called Skinny Park, at about 4.00 pm on Sunday 20 January 2002.

6 On their arrival at Skinny Park, the appellant took a large pocket knife from his back pocket. He unfolded the blade from the handle and attacked the deceased with it, inflicting many wounds to a number of parts of her body, a number of which were potentially fatal. The appellant stopped stabbing her only when struck in the head by a milk crate wielded by the deceased's brother, who had seen his sister being attacked and had run to intervene. The appellant had turned on the deceased's brother, but then police arrived and he folded the knife and threw it down. He was arrested and taken to the lockup where it was noted that he was "alcohol affected".

7 The deceased sustained some 65 wounds, some of which could not have been made without the use of considerable force. There were wounds to the hands and fingers of a defensive nature. The most serious

wounds were those which entered the lungs and chest cavity, which had been inflicted both from the front and from the back. Wounds were present on the face, chest, abdomen, back and limbs of the deceased.

8 A number of eye witnesses described the appellant's attack on the deceased as a "frenzied" one. It appears that he paid no attention to people who beeped their car horns at him or shouted at him to stop.

9 The forensic pathologist, Dr Margolius, was asked about the potential effect of the appellant's diabetes on him. It was accepted that he suffered from diabetes and had been prescribed oral hypoglycaemics for that condition. She confirmed that if, as may have been the case with the appellant, a person with that condition had been on an alcohol binge and not eating properly, they could suffer from hypoglycaemia. That state could result in emotional disturbances such as increased feelings of anger and aggression, and could interfere with the capacity for sound judgment. She confirmed that alcohol consumption could result in "dis-inhibition", and serious behavioural changes including over-reacting to a perceived slight or insult, responding in inappropriate ways to circumstances around them, and decreased capacity to form rational decisions. She confirmed that someone who is intoxicated by alcohol may be aware of what they are doing but unaware of the consequences of their actions, or may have a diminished capacity to assess the consequences of those actions.

10 The appellant's evidence was to the effect that he had drunk alcohol since he was a teenager, that he suffered from diabetes, and that he had been prescribed medication for that condition. In the weeks prior to the incident, he and the deceased were having a Christmas holiday and he was drinking every day and not taking his medication. Before the deceased left Laverton he had thought that she was seeing another man and they had argued about it.

11 After she left, he also left Laverton for Leonora. He stayed there a couple of days and found the knife which he later used. He kept the knife, as he was thinking about the other man and thinking about self-defence. He then resumed his travels, ending up in Kalgoorlie.

12 He had been drinking throughout the trip, and had had very little to eat and had not taken his medication for diabetes.

13 When he met his wife in Kalgoorlie, he was feeling angry towards her because of the other man, and they were arguing. Asked how he was feeling at the time that he stabbed his wife, he replied: "Angry and my mind went blank". He said he did not wish to kill her or hurt her really badly. In cross-examination, he again said that at the time that he stabbed his wife he was feeling angry towards her and his mind went blank. He could not remember many details of the incident, including how many times he stabbed her and precisely where he stabbed her, although he remembered certain aspects, such as stabbing her in the back.

14 There are three grounds of appeal, a fourth having been abandoned at the hearing of the appeal, and a fifth asserting merely that the other grounds either individually or cumulatively occasioned a miscarriage of justice.

15 In my view, had the appeal been in time, it would have succeeded on the basis of ground 3. In the end, I have concluded that time should be extended and the appeal allowed.

16 Ground 3 asserts that his Honour erred in law in directing the jury in a particular way in relation to the appellant's anger. His Honour's direction in that regard appears to have taken the form it did because of the manner in which submissions on behalf of the appellant were made to the jury by his counsel at trial. We were provided with a copy of those submissions, and it is, I think, fair to observe that the appellant's counsel was by no means clear as to the use which the jury might make of the evidence of Dr Margolius, and as to what generally was being suggested in relation to the role which anger played in the formation of the appellant's intent, whatever it may have been. His Honour said this to the jury:

"Can I mention the issue ... of the accused's diabetic condition? Mr Collins [the appellant's counsel] submitted to you I think that you could take it from the evidence of Dr Margolius that uncontrolled diabetes can result in the person who is suffering from that condition experiencing feelings of anger and aggression.

I think he went so far as to submit that her evidence was to the effect that this could deprive a person of the capacity to form a specific intention. For myself, I don't think her evidence went that far but it's a matter for you. As I understood her, she said that anger and aggression may arise in an affected person when it might not have done so if that person had his blood sugar levels under control. She said the anger and depression might be purposeless, by which I took her to mean that it might be ill-directed and irrational. It's for you to take such guidance from the forensic evidence as you think right but I wouldn't have thought that the evidence amounted to evidence that the condition of hypoglycaemia is a condition which deprives a person of the capacity to form a specific intention.

I give you this direction: in this case you can take it as a matter of law that anger of itself, whatever may have been its cause, is no defence to wilful murder. Anger does not affect the issue of guilt which is what you are concerned with, although it may affect the question of punishment which is my concern, not yours."

17 His Honour's characterisation of the evidence of Dr Margolius appears to me to have been factually correct. The problem arises with his Honour's direction that anger does not affect the issue of guilt. That direction would, in my view, have been understood by a jury as requiring them to set aside the issue of the appellant's anger when considering what inference they should draw as to his state of mind at the relevant time.

18 The interaction of the emotion of anger with an accused person's formation of an intent is not an easy one to articulate. It was submitted to us by the appellant's counsel that, in the words of the headnote to Cutter v The Queen [1997] HCA 7; (1997) 143 ALR 498 in this case, as in that: "The circumstances ... could not exclude the possibility that [the deceased] was stabbed in anger and with aggression but not with an intent to take his life". The submission, at times, appeared to verge on the proposition that anger and aggression were emotions which precluded the formation of an intention to kill. That obviously is not the case. Anger and aggression may well be emotions which lead to the formation of such an intention.

19 The process of forming an intention is a mental process involving the capacity to reason and to understand what the consequences of an action may be. Anger is an emotion, a state of feeling rather than a state of mind. Indeed, Wylde's Dictionary (Wylde Universal Dictionary of the English Language, London) defines emotion in one of its uses as "any of the feelings, contrasted with the mental processes of reasoning" (emphasis supplied).

20 However, it is common experience that there may on occasion be an interaction between states of emotion or feeling, and the ability to reason or the process of reasoning, particularly when emotions are very heightened. In this case, for example, it would have been open to the jury to consider the possibility that the appellant was in such a state of anger at the time that he stabbed the deceased, that although he lashed out at her intending to harm her, he did not stop to contemplate with any degree of precision what harm would or might flow from the attack which he launched. In that sense, the appellant's anger would have been a matter which the jury could consider, and it was wrong for his Honour to direct them as he did that, as a matter of law, it did not affect the issue of guilt.

21 Notwithstanding the error, I have had some difficulty in arriving at the conclusion that the application for extension of time should be allowed and the appeal granted. So far as the extension of time is concerned, the affidavit in support reveals an inadequately explained delay, but a delay which appears to be attributable solely to the appellant's solicitors rather than to the appellant himself. Given the gravity of the offence of which he was convicted, I think it would be appropriate to extend time where the delay has been explained in a way which makes it clear that there was no fault or oversight of his involved. The more difficult aspect of this question is whether in any event, notwithstanding the misdirection, this was a case in which there had been no miscarriage of justice because the conclusion as to the appellant's specific intent was the only one reasonably open on the evidence.

22 As Windeyer J explained in Parker v The Queen [1963] HCA 14; (1963) 111 CLR 610 at 649, the acts actually performed by an accused person may well provide the most cogent evidence of his intention, so that: "If the immediate consequence of an act is obvious and inevitable, the intentional doing of the act imports the intention to produce the consequence. Thus, to suppose that a sane man who wilfully cuts another man's throat does not intend to do him harm would be absurd." In this case, as I have noted, there were some 65 wounds, a number of which were potentially fatal. It is very difficult to accept the conclusion that a person who stabs another repeatedly in the chest with considerable force, can have intended anything other than the death which inevitably resulted.

23 However, what the jury had to consider in this case was a complex series of factors potentially bearing upon the appellant's intention. Those factors included his anger, his intoxication, and his hypoglycaemia. While it seems to me unlikely that the result would have been different, I cannot exclude the possibility that a reasonable jury, considering all of these factors together, might have been left in some doubt as to the appellant's intention to cause death rather than some other outcome. I would therefore allow the appeal.

24 There were, as I have noted, two other grounds of appeal. Because of the conclusion I have reached in relation to ground 3, it is only necessary to deal with these briefly.

25 The first ground complains that his Honour erred in law in directing the jury in this fashion:

"In this case, the first way of dealing with this question of intent is to make your finding of primary facts ... and then you ask yourselves whether you can draw an inference of an intention to kill from that."

26 It is submitted that what his Honour was there doing was directing the jury that they could convict if they were able to draw an inference of intention, rather than directing them that they could convict only if an inference of an intention to kill was the only rational inference available.

27 If one takes the passage complained of in isolation, the ground of appeal would be made out. However, this ground relies upon taking out of its context a passage which was only one part of a direction which, taken as a whole, would have left the jury in no doubt as to the task they were required to perform. It was preceded by the usual very clear direction as to the onus and standard of proof. In what was essentially a one issue case, that issue being the state of mind of the accused, the jury would therefore have understood that they could only convict if satisfied beyond reasonable doubt in relation to that issue.

28 The passage complained of is immediately preceded by the conventional observation that an intention can't be produced in Court as an exhibit, but resides in the mind, so that it is necessary for the jury to make a finding about it. The jury was directed that they could make a finding by way of inference from what the accused did in all of the circumstances in which he did it. So, his Honour said, the "first" way of dealing with the intention was to make a finding of primary facts as to what the accused had done. His Honour then, immediately after the passage complained of, went on to observe that the jury would also "of course" give close consideration to what the accused himself had told them and to all of the circumstances. The jury was advised that it was not open to them to say, merely because death was the probable result of the act done by the accused, that it was necessarily the intended result. They were directed they could judge the accused's intent having regard to the primary facts and also to the accused himself, including his background, sobriety and so on. His Honour then went on to discuss the issue of intoxication and to discuss in more detail the evidence which might bear upon the question of intention.

29 In my view, therefore, his Honour clearly set out for the jury the various considerations relevant to the issue of intention. The jury could not have understood him to be saying that once they had made a finding as to what the accused had done, it would be open to them to draw an inference of guilt directly from that alone.

30 In relation to the further submission under this heading that his Honour erred in failing to give the jury a direction as to the drawing of inferences, there is no invariable rule that an inference direction should be given in every case involving circumstantial evidence. Whether such a direction is required will depend upon the nature of the case, it being no more than an amplification of the rule that the prosecution must prove its case beyond reasonable doubt: Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573 per Dawson J at 578. Indeed, an inference direction should not be given unless the evidence in the case is of a character that appears particularly to call for such additional guidance: Houghton v The Queen [2004] WASCA 20 per Murray J at [71]. In a case where (except so far as the issue the subject of ground 3 is concerned) his Honour had explained to the jury all of the various matters which might bear upon the question of the appellant's intention, and had made it plain to them that if they were left with a doubt as to an intent to kill they must acquit, it is my view that nothing further by way of elaboration was required.

31 Ground 2 complains that his Honour erred in directing the jury in relation to intoxication, by saying: "I can point out, however, that it [intoxication] can cut both ways. Intoxication may destroy the capacity to form an intention." It is submitted that his Honour there "in effect" directed that unless the jury was satisfied that the level of intoxication had destroyed the appellant's capacity to form an intention, then they should disregard intoxication. Such a view of his Honour's observation could only be taken, in my view, by a person aware of the rather fine distinction between capacity to form an intention and actual formation of an intention discussed in cases such as Dodd v The Queen [1978] WAR 209. To an average juror, unacquainted with that issue, it is my view that his Honour's observation would have carried no such implication.

32 All his Honour was pointing out to the jury was that establishing whether the appellant was intoxicated was not the end of their enquiry into the question of intention. As to the ultimate question which the jury had to determine, to which the question of intoxication was relevant, his Honour said, "... still the question always is, and it is a question of fact for you: what was his actual intent at the time?" Shortly after the passage complained of, his Honour said: "I leave you with the direction that you can use the evidence of alcohol consumption by the accused in considering what was his actual intention, if any, at the time of the fatal wounding. If the evidence as to his alcohol consumption ... raises in your mind a reasonable doubt as to his intention, the Crown hasn't discharged the burden of proving that intention". In my view, that direction would have left the jury in no doubt as to the ultimate question which they had to answer. The observation complained of is no more than one of a number of comments made by his Honour about the various matters which the jury might care to consider in their consideration of that question.

33 For the reasons which I have given, I would extend the time within which to appeal, allow the appeal, and order that the appellant be retried.