Ugle v The Queen

Ugle v The Queen - [2002] HCA 25 - HCA 2002 case summary — Zoe

[12]

The appellant's version of events was not confined to the proposition that he "did not use the knife as a weapon". Rather, it was a version in which he had been attacked and struck by the deceased with a cricket bat on the side of his head and in which he tried to fend off the assailant but "did not use the knife as a weapon". There was nothing in the trial judge's directions to suggest to the jury that they should do other than consider the entire version given by the appellant, not merely whether or not "he used the knife as a weapon". That being so, it is impossible to conclude that the question of willed act was effectively determined by the trial judge in favour of the appellant.
As Gummow and Hayne JJ point out, the question of willed act was logically anterior to the questions whether, by reason of self-defence, the killing in question was lawful and, if not, whether it was done with the intention to kill or do grievous bodily harm. That anterior question should have been left to the jury. It was not.
The appeal should be allowed, the order of the Court of Criminal Appeal dismissing the appeal to that Court should be set aside and, in lieu thereof, the appeal to that Court should be allowed, the conviction quashed and a new trial ordered.
GUMMOW AND HAYNE JJ. The appellant and another man (Aaron James Haworth) were charged with the wilful murder of James Leonard Byrne. After a trial in the Supreme Court of Western Australia the appellant was convicted of murder, as distinct from wilful murder. Under The Criminal Code (WA) the offence of wilful murder requires proof of an intention to kill the victim or some other person[2]. By contrast, the offence of murder is committed by a person who unlawfully kills another under any of several different circumstances, including if the offender intends to do to the victim or some other person some grievous bodily harm[3].
The appellant appealed to the Court of Criminal Appeal against his conviction. By majority (Parker and Wheeler JJ; Wallwork J dissenting), the Court of Criminal Appeal dismissed his appeal[4].
The issue in the appeal to this Court is whether the Court of Criminal Appeal should have held that, the trial judge having not directed the jury about unwilled acts and events occurring by accident, there had been a wrong decision of a question of law or a miscarriage of justice[5]. For the reasons that follow, the appeal should be allowed, the order of the Court of Criminal Appeal set aside and in lieu there should be orders allowing the appeal to that Court and directing that a new trial be had.

[13]

The deceased died from a knife wound to the chest. There was no dispute at trial that the appellant was holding the knife when the deceased sustained that wound. On the evening that the death occurred the appellant's co‑accused, Mr Haworth, and a companion had gone to a block of flats at which the deceased lived. There was a disturbance and Mr Haworth said at the trial that the deceased, armed with a cricket bat, had chased after him and his companion. According to Mr Haworth, the deceased struck him with the bat. Mr Haworth returned to a friend's house nearby where he, the appellant and others had spent much of the day.
A short time later, Mr Haworth and the appellant went back to the vicinity of the flats. The appellant took with him a kitchen knife he had picked up from the kitchen of the house at which he had spent the day. Mr Haworth said at the trial that he had armed himself with a brick and, perhaps, later a piece of wood. They encountered the deceased who was, so they said, still armed with the cricket bat.
The appellant's evidence in chief was that the deceased attacked and struck him with the cricket bat, causing the appellant to lose balance. As the deceased went to hit him again he put his hand up to push the deceased off. Having done so, and seeing the deceased about to strike him again, the appellant said he ran away. On returning to the friend's house he washed the knife because it had blood on it and he washed his hands. Neither in evidence in chief nor in cross‑examination did he say when he first saw blood on the knife. In cross‑examination the appellant reiterated that he had sought to fend off the deceased, and said that he did not realise that he stabbed him at that time. He denied using the knife to stab the deceased.
As was rightly recognised in the Court of Criminal Appeal[6], this evidence was open to at least three constructions. We would, however, state those different constructions of the evidence in rather different terms from those used in the Court of Criminal Appeal, if only to recognise the burden of proof which the prosecution bore.
First, it was open to the jury to conclude that, to fend off a blow by the deceased, the appellant had raised the arm and the hand in which he was carrying the knife and had pushed or hit the deceased, but that the prosecution had not established beyond reasonable doubt that the appellant had consciously used the knife to attack or wound the deceased. Secondly, it was open to the jury to conclude that, despite what the appellant said, the prosecution had not established beyond reasonable doubt that the appellant had not acted in self‑defence. Thirdly, it was open to the jury to conclude that the prosecution had established that the appellant had deliberately attacked the deceased with the knife. In that last event the question would then have been whether the deceased was proved to have done so intending to kill (and thus was guilty of wilful murder) or had done so intending only to do grievous bodily harm (and thus was not guilty of wilful murder but guilty of murder).

[30]

It appears not to have been disputed in the Court of Criminal Appeal, or in this Court, that in the present case the relevant "event" against which the accident limb of s 23 had to be considered was the death of the deceased. There was, however, no issue raised at the trial about whether the consequences of the knife entering the body of the deceased were unlikely or unforeseen. That being so, the accident limb of s 23 was not engaged. What was in issue, however, was whether the insertion of the knife in the body of the deceased was a voluntary act - an act "willed" by the appellant. One view of the evidence that the jury might have taken was that the prosecution had not proved that it was. And that was a question for the jury, not a question to be decided by the judge. It follows that the jury should have been directed to consider this issue.
In this Court, the respondent did not dispute that the jury should have been directed to consider whether the act of inserting the knife in the body of the deceased was an act willed by the appellant. It was submitted that, nonetheless, there had been no miscarriage of justice or, if there had been a miscarriage, the proviso to s 689(1) applied, no substantial miscarriage of justice having actually occurred.
As Parker J pointed out[14], the trial judge told the jury, in effect, that if they were not persuaded beyond reasonable doubt that the appellant's version of events (that he "did not use the knife as a weapon") was false, they should return a verdict of acquittal. This direction, however, did not cure the difficulty presented by there being no direction about whether the act of inserting the knife was an act that occurred independently of the exercise of the appellant's will.
Similarly, in the circumstances of this case, requiring the jury to consider what was the intention with which the "fatal blow was struck" did not cure the difficulty. Lying behind both the question of use of the knife "as a weapon", and the question of a fatal blow being "struck", was the logically prior question whether the knife had entered the body of the deceased independently of the exercise of the will of the appellant. Did the appellant put the knife in the body of the deceased, or did the deceased impale himself on the knife the appellant was holding? Once it is recognised that the evidence at trial could have been understood by the jury as not proving the former beyond reasonable doubt, that was an issue to which the jury's attention should have been, but was not, directed. Both the direction about using the knife as a weapon and the direction about the intention with which the fatal blow was struck assumed that the act had been done in the exercise of the appellant's will.
This is not a case in which the proviso to s 689(1) applies. It is not necessary in this case to consider the relationship between the requirement in s 689(1) that the Court of Criminal Appeal allow an appeal against conviction if "on any ground there was a miscarriage of justice" and the proviso's reference to "substantial miscarriage of justice"[15]. The jury's verdict having been taken without their attention being directed to the question of willed act, it is not possible to say that the appellant did not lose a chance of acquittal fairly open to him[16]. It was for the jury to assess the evidence given by the appellant and this Court is not able to say that a jury, properly instructed, would necessarily have decided beyond reasonable doubt that the act of inserting the knife in the body of the deceased was an act willed by the appellant. Of course the conclusion that there was a willed act by the appellant was consistent with the principal way in which he put his case (that he acted in self‑defence), but it was for the jury to evaluate all the evidence that he gave.
The appeal should be allowed and the consequential orders referred to earlier should be made.
KIRBY J. This appeal from the Court of Criminal Appeal of Western Australia[17] concerns the meaning of s 23 of the Criminal Code of that State ("the Code").
The appeal was argued together with an appeal from the Court of Appeal of Queensland in Murray v The Queen[18]. That course was taken to protect the appellants, should a common point prove determinative and to permit this Court to have contrasting facts with which to test the parties' respective legal propositions. Relevantly, the provisions of s 23 of the Code are the same as those of the Criminal Code (Q), considered in Murray[19].
Whereas, ultimately, Murray could be disposed of by a majority of this Court by reference to an error found in relation to the directions given to the jury concerning the burden of proof of contested facts, no such complication intrudes in this appeal. Here, it is necessary for all members of this Court to decide the point raised concerning s 23. Necessarily, the views expressed on that provision in Murray apply equally to this appeal. However, having regard to the way in which the cases were respectively presented at trial, different questions arise concerning the "proviso"[20].

[31]

The evidence and conviction of the appellant: The relevant facts leading to the charge brought against Mr Mitchell Ugle ("the appellant") arising out of the death of Mr James Byrne ("the deceased") are set out in the reasons of the other members of this Court[21]. So are the applicable details of the conduct of the trial[22] and of the trial judge's directions to the jury[23]. So also are the applicable provisions of the Code.
The appellant was charged with "wilful murder", a distinct offence against the Code that requires proof of an intention to kill the victim or some other person[24]. He was acquitted of that charge but convicted of murder, an offence of homicide requiring proof of an intent to do the victim or some other person grievous bodily harm[25].
A strong prosecution case: As in Murray, on the evidence adduced at the trial, the prosecution case was strong. The appellant accompanied a friend to intrude in a fight between the friend and the deceased. The appellant took with him a kitchen knife. Such a knife was self-evidently a dangerous weapon. It was not suggested that the appellant did not realise that he had the knife in his right hand; that he was holding the knife when confronting the deceased; or that he had pushed the deceased in the course of a struggle with him. The medical evidence showed that, in order to penetrate the vital organs of the deceased, it was necessary for considerable force to be exerted so as to cut a rib and reach the deceased's lungs and heart. After the confrontation, the appellant and his friend ran from the scene to the adjacent house where they had spent the day. By the time of his return to that house, the appellant knew that something very serious had happened. He had to wash blood from the knife and from his hands.
The appellant's friend stood trial with him. He was convicted of manslaughter. His case does not concern this Court. On the face of things upon the foregoing evidence, after a trial properly conducted, it would have been open to a jury to conclude, to the requisite standard, that carrying a kitchen knife deliberately into an altercation and wielding it in the course of a close struggle that concluded in the death of the deceased, involved an intention to do the victim some grievous bodily harm. Under the Code, where death ensued, that could amount to murder.
The appellant's defence: However, there were facts proved in evidence led before the jury that constituted the appellant's defence to the charge. Those facts required classification in terms of the provisions of the Code. Their accurate classification was, ultimately, the duty of a jury, guided by directions on the applicable law given by the trial judge.
The relevant facts were that the appellant swore that he had not wanted to fight the deceased and certainly not to stab him. Indeed, he gave evidence that, during the struggle, he did not realise that he had stabbed the deceased. He denied using the knife for that purpose. As the trial judge (Heenan J) explained to the jury that, by reason of the fracas, there was no significant evidence on the point save that of the appellant himself. The jury might disbelieve that evidence as self-serving. They might prefer to regard as determinative the objective fact that the appellant had deliberately bought into an argument of no direct concern to him, wielding a potentially dangerous knife. Nevertheless, there was the appellant's sworn evidence. One might add that the appellant was entitled to rely on the suggested unlikelihood that a person, easily traced to a neighbouring home, would deliberately set out to kill or stab someone with whom he had no personal quarrel.
Inevitably perhaps, the actual evidence of the physical interaction between the appellant and the deceased was somewhat confusing. The blows occurred within a very short interval of time. But as Gummow and Hayne JJ have expressed it, the ultimate factual question posed by the evidence was whether the prosecution had proved that the appellant had struck the deceased with the knife. Or whether, after considering the appellant's testimony, the jury might conclude that this was not a case where stabbing was proved but, rather, that the prosecution had not excluded the possibility that the deceased had impaled himself on the appellant's knife independently of the exercise of the will of the latter[26].

[32]

Distinguishing self-defence: The Court of Criminal Appeal concluded that, as the evidence stood at the end of the trial, the case was open to at least three constructions. In summary form, these were (1) proof by the prosecution of intentional killing of the deceased by the appellant; (2) a failure of the prosecution to exclude self-defence; and (3) a failure of the prosecution to exclude the hypothesis that the act had occurred independently of the exercise of the accused's will[27]. It follows from my opinion in Murray that there was a fourth construction upon which the jury required directions, namely (4) a failure of the prosecution to exclude accident[28]. In this case, the fourth construction is complicated by a concession made by the appellant's counsel at the trial. It only needs to be dealt with to meet the requirement for guidance in a retrial[29].
For the moment I will postpone consideration of the excuse of accident. As it was not argued in this Court, is negatived by the jury's verdict and is inconsistent with the principal point argued for the appellant, I shall likewise ignore the justification of self-defence.
This leaves the question of directions to the jury on the subject of unwilled acts, being the first of the excuses from criminal responsibility acknowledged in the first paragraph of s 23 as it appears in the Code.
On this point, it is enough to say that, in this Court, the prosecutor did not dispute the contention that the jury ought to have been directed to consider whether the "act" of inserting the knife into the body of the deceased was one that had occurred independently of the exercise of the appellant's will. That concession was rightly made. The exchange between the trial judge and trial counsel for the appellant indicates, clearly enough, that the latter maintained her request for such a direction. The trial judge obviously considered that it was sufficient to encapsulate the issue presented by the evidence in terms of the way in which the appellant had principally advanced the matter at trial, namely self- defence. The trial judge accurately directed the jury upon that issue. He did so as favourably to the appellant as the law and the facts allowed.
However, the appellant always faced serious problems with self-defence given that he had deliberately entered into the altercation and brought with him a dangerous kitchen knife. Furthermore, as the structure of the Code makes plain, there are various exculpations for what would otherwise be an unlawful killing[30]. The failure of the prosecution to negative self-defence is but one of them. The considerations mentioned in s 23 (unwilled acts and accidents) constitute other and separate excuses. They may separately excuse the accused from criminal responsibility whatever view the decision-maker takes about self-defence.
Once this is accepted, it was necessary for the trial judge, particularly in the face of the request of counsel, to provide instructions addressing the mind of the jury to the issue of unwilled acts as provided by s 23. The failure to do so was not waived at the trial. It was not irrelevant to the evidence. Contrary to the opinion of the majority of the Court of Criminal Appeal, it was not excused by other directions given by the trial judge. In this regard, I agree with the analysis of Gummow and Hayne JJ[31].
Inapplicability of the proviso: Nor was this omission one that would attract the application of the proviso[32]. A jury, properly instructed, might well reject the suggestion that the prosecution had failed to negative self-defence yet conclude that the prosecution had not excluded the real possibility that the act causing death had occurred independently of the exercise of the appellant's will. That view of the evidence would be open if the jury concluded that, as he asserted, the appellant had only brought the knife with him as a "scare tactic" and the act of insertion of the knife in the body of the deceased had only occurred when the deceased, in effect, rushed at the appellant, thereby impaling himself on the knife.
It cannot be said that such a conclusion is unavailable or that the appellant's conviction by a jury, properly instructed, was inevitable[33]. Thus, it cannot be said that the appellant has not lost a chance fairly open to him of acquittal that might follow a trial conducted with proper legal directions[34]. These conclusions require that the conviction be quashed and a new trial ordered.

[33]

Availability of the excuse of accident: Because a retrial must be had, it is appropriate for me to say something about accident. For present purposes I am prepared to assume that the express and informed waiver of that ground of excuse by experienced trial counsel rendered that issue unavailable to the appellant in the Court of Criminal Appeal or in this Court. Because the appeal must be allowed on other grounds, it is unnecessary finally to decide whether that is so. However, as the issue may arise in the retrial, the applicable law should be clarified.
My own opinion on that law is stated in Murray[35]. There is no relevant point of distinction between the Western Australian and Queensland Codes in this respect.
I agree that the juxtaposition of the words "act" and "event" in s 23 suggests that the successive excuses of unwilled acts or omissions and accidents do not refer to precisely the same constituents of the evidence. The "act", relevantly, appears more particular; the "event" more general. Thus I am prepared to accept that the "act" concerned is the "death-causing act"[36] whereas the "event" refers to the death of the deceased viewed in the circumstances of its happening.
But could the death of the deceased, on the evidence so viewed, reasonably be classified by the jury as having "occur[red] by accident"? Posed in terms of such generality, it is not an unarguable conclusion on the facts[37]. If, for example, the jury concluded that the appellant indeed went to the vicinity of the deceased's premises with the knife to scare him and to protect himself from the approach of the deceased wielding a heavy bat and to remonstrate against his earlier allegedly violent conduct and that, in the course of furthering such conduct, the deceased effectively impaled himself on the knife, it would, in my opinion, be open to the jury to conclude that the prosecution had not negatived the proposition that the deceased's death was an "event" that had occurred "by accident". Obviously it was not an "accident" that the appellant was carrying a knife. Nor was it an "accident" that he became involved in a physical struggle with the deceased. Each of those features of the "event" was reasonably foreseen to a reasonable person[38]. But if the jury accepted that the prosecution had not negatived the appellant's sworn testimony, it would, in my view, be open to them to conclude that the "event" (being the death of the deceased in the circumstances) had occurred "by accident". The death was, in this sense, unlikely and unforeseen. It was the product, in effect, of a sudden lunge by the deceased onto the knife held by the appellant in a position assumed in response to the deceased's attack on him. It was an accidental event. Upon these questions the appellant would be entitled to have the verdict of his jury.
Requirement of instruction on accident: In the circumstances, bringing to bear their commonsense, the jury might well reject such contentions as unrealistic, given the risks of the situation into which the appellant had intruded and the special risks of carrying knives into such angry confrontations. Alternatively, once s 23 of the Code was enlivened, the jury would have to be instructed on the "express provisions of [the] Code relating to negligent acts and omissions". So instructed, the jury might conclude that those "express provisions" applied. However, because there was evidence to which, in my view, the "accident" excuse in s 23 of the Code applied, it would be the duty of the judge in like circumstances, with no waiver of counsel at a second trial, to instruct the jury on that provision of the Code. The identification of the "event" and its classification as "accidental" or otherwise were questions for the jury, properly instructed. Not for the judge. In the circumstances of this case, it is unnecessary to say anything further on that point. It lies in the future.

[35]

The appellant's co-accused, Haworth, and another person were involved in a disturbance in a building in Perth. The building contained a number of flats in one of which the victim, Mr Byrne, lived. Haworth and his companion were chased from the building by Mr Byrne who was wielding a cricket bat. Haworth said that he was hit on the elbow with the bat by Mr Byrne on that occasion. There was evidence that he called out that he would return and kill Mr Byrne.
Haworth, accompanied this time by the appellant, who had armed himself with a kitchen knife, did return to the vicinity of the building. Haworth took with him a brick and perhaps a piece of wood. The appellant's explanation for the knife was that he took it as a "scare tactic" to show the man with the bat that "he had something there".
The appellant said that he followed Haworth, who approached two men, one of whom proved to be Mr Byrne still holding the cricket bat. The appellant said that he called out "Why did you hit the boy for?" The man with the cricket bat, he said, "just bull-rushed me", swinging the bat at the same time.
It was the appellant's evidence that he raised his arm to fend off the bat as it was swung at him. He said that the bat struck his forearm and the side of his temple. He lost his balance. Then, he said, the man with the bat tried to hit him again and he put his [right] hand up "to push him off". He was holding the knife in his right hand. He said he did this "just to defend - just to push him back". He believed that he hit the man in the arm.
The appellant was asked what he thought would happen if he had not hit the man as he did. His answer was "I thought he was going to kill me. Because of the brute force that he hit me first off." He described the second swing with the bat as being aimed at "my head again". He claimed that he had not wanted to fight Mr Byrne.
Mr Byrne then moved, the appellant said, to hit him for a third time, at which point the appellant "spun around and took off". Haworth, who claimed he had been engaged with the fourth man, ran away with the appellant. They ran to their friend's house. There, on the appellant's evidence, he walked into the bathroom and washed the knife "because it had blood on it". He returned the knife to the kitchen drawer and washed his hands.
In cross-examination at his subsequent trial the appellant reiterated that he had tried to fend Mr Byrne off. He said "Well, I hit him in the arm. I didn't realise that I stabbed him at that time." He denied that he had used the knife to stab the man. He did not suggest, however, that he did not realise that he was holding the knife in his hand as he sought to push Mr Byrne away from him.
The knife cut through a rib and penetrated Mr Byrne's lung and heart. The medical evidence was that a considerable degree of force would have been necessary to penetrate these organs. Mr Byrne collapsed in the street and died within a very short time.

[74]

The only ground of appeal in this Court adopts the reasoning of Wallwork J, the dissenting judge in the Court of Criminal Appeal with respect to s 23 of the Code.
The relevant provisions of the Code are summarized, and set out to the extent necessary in the reasons for judgment of other members of the Court. As I point out in Murray[44], s 23 distinguishes between acts and events. And, as with that case, it is with the first limb of s 23 that this Court is concerned here: on the evidence is there a basis for saying that the Crown may have failed to prove that penetration by the knife clutched in the appellant's hand as he raised his arm, was an unwilled act?
In my opinion that question has to be answered in the affirmative. The directions of the trial judge did not give effect to the possibility of an unwilled act within the meaning of s 23 of the Code. The jury should have been directed that the Crown was obliged to negative that possibility. The fact that on one version of the appellant's defence, self-defence, his act of "fending off" may have been intentional, that is, intentionally defensive, did not relieve the trial judge of the necessity to direct in accordance with s 23. It remained for the jury to assess all of the evidence in the case, including any apparently conflicting versions given by the appellant. Indeed, it may be, having regard to the flurry of events at the time of the penetration of the knife, a person might be excused for being unable to say with certitude whether a particular movement was instinctively self-protective or otherwise unaccompanied by a will to inflict harm. However, as I point out in Murray[45], the sequence of acts leading up to the penetration such as the choice of a knife and the appellant's voluntary participation in accosting Mr Byrne may have much to say about the nature of the movement of the arm and hand with the knife in it.
I cannot, in the circumstances however, conclude that the appellant has not lost a chance of an acquittal that was fairly open to him. He was entitled to a trial, including directions, according to law and that is what he should have on the quashing of the conviction and a retrial which I would order.

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