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R v Woods

 

[2018] QCA 167

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

R v Woods [2018] QCA 167

PARTIES:

R
v
WOODS, Storm Danyon
(appellant/applicant)

FILE NO/S:

CA No 277 of 2017

DC No 362 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Cairns – Date of Conviction & Sentence: 10 November 2017 (Clare SC DCJ)

DELIVERED ON:

27 July 2018

DELIVERED AT:

Brisbane

HEARING DATE:

1 June 2018

JUDGES:

Morrison JA and North and Henry JJ

ORDERS:

  1. Appeal dismissed in respect of count 1 but allowed in respect of count 2.
  2. The conviction on count 2 is quashed.
  3. The appellant is to be re-tried on count 2 (unless it is discontinued).
  4. The respondent will, within four weeks of these orders, inform the appellant’s legal representatives of whether it intends to proceed with the retrial of the appellant in respect of count 2 on the indictment.
  5. Within six weeks of these orders, the parties will exchange and file written submissions in respect of the disposition of the application for leave to appeal sentence including:
  1. what course ought be taken regarding the timing of the disposition of the application for leave to appeal sentence in the event that the prosecution intends to retry the appellant on count 2;
  2. supplementary submissions as to sentence range in light of the quashing of the conviction on count 2 and as to whether Ms Hansen’s injuries can or should be taken into account for the purpose of sentence on count 1.
  1. The parties will exchange and file any written submissions in reply within seven weeks of these orders.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION OR NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where the appellant was convicted by a jury of one count of grievous bodily harm and one count of unlawful wounding – whether the primary judge erred in failing to direct the jury on s 23 and s 289 Criminal Code

Criminal Code (Qld), s 23, s 289

Murray v The Queen (2002) 211 CLR 93; [2002] HCA 26, discussed
R v Reid [2018] QCA 63, cited

COUNSEL:

J A Greggery QC for the appellant/applicant

M R Byrne QC, and M L Franklin, for the respondent

SOLICITORS:

Phillip Bovey and Co Solicitors for the appellant/applicant

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    MORRISON JA:  I agree with the reasons of Henry J and the orders his Honour proposes.
  2. [2]
    NORTH J:  The comprehensive review of the evidence and the material parts of the learned trial judge’s summing up by Henry J permit me to rely upon it and avoid repetition.
  3. [3]
    The only witness who gave evidence of observing the motion or actions made by the appellant when holding the knife was the witness Crick.  He described the motion as a “thrusting”[1]  and also said that the appellant was “pushing the knife straight forward into Mr Robinson”.[2]  In both her Honour’s summing up to the jury and in the written guide to the elements of the offences[3] her Honour described the action as a “wielding of the knife towards Mitchell” but it was not submitted that anything turns upon her Honour using a different word from the descriptive words used by the witness.[4]
  4. [4]
    However one describes an action, whether it be as a thrusting, a pushing, a lunge, a stabbing or a wielding, because the motion might be as a consequence of an automatic reflex action or an unconscious spastic action it is necessary, consistently with s 23(1)(a), for the prosecution to exclude beyond reasonable doubt any hypothesis that the stabbing motion that led to the injuries occurred independently of the will of the defendant.  To that end the Benchbook direction, consistently with Murray v The Queen,[5] contains a direction that has this effect.  The learned trial judge did not give a direction entirely consistent with the model direction.  Instead she directed the jury that the prosecution had to prove beyond reasonable doubt that the motion she described as a “wielding of the knife towards [Mr Robinson]” was as a consequence of a conscious decision and that to be a willed act there “must be a choice to do it”.[6]
  5. [5]
    The accounts given by Crick and the appellant in his interview with the police were, in the context of the trial, mutually exclusive.[7]  A third alternative, that the appellant motioned with the knife in the manner described by Crick but as a consequence of some uncontrolled and unwilled reflex or other action, was not suggested by the appellant nor raised at the trial.  It is so unlikely as to be, in context, idle speculation.  Nevertheless in many, if not most, cases where the issue of a willed or unwilled act arises a direction substantially conforming with the Benchbook will be necessary.  But in the context of this case her Honour’s directions, emphasising that the prosecution had to prove a “conscious decision” or a “choice” adequately directed the jury on s 23(1)(a) upon the first count on the indictment.
  6. [6]
    Subject to these observations I substantially agree with the reasons of Henry J concerning the conviction on count 1.  I agree with his Honour’s reasons concerning the appeal against conviction on count 2 and the application for leave to appeal against sentence.  I agree with the orders proposed by his Honour.
  7. [7]
    HENRY J:  The appellant was convicted by a jury of one count of grievous bodily harm and one count of unlawful wounding.  He was sentenced to concurrent terms of imprisonment of five and a half years and two years respectively.  He appeals his conviction and seeks leave to appeal sentence.

Conviction grounds

  1. [8]
    The grounds of appeal against conviction are:

“(i) The learned trial judge erred in directing the jury on ss 23 and 289 Criminal Code;

  1. (ii)
    The learned trial judge erred in directing the jury on ‘flight’ on count 1.”

Facts

  1. [9]
    The prosecution case was that, in the course of an altercation between the appellant and Mitchell Robinson, the appellant armed himself with a knife and did grievous bodily harm with it to Mr Robinson, also wounding Tiffanie Hansen, who intervened in the altercation.
  2. [10]
    The appellant and his girlfriend Talena Barter were living in a dwelling on a rural property at Whyanbeel near Mossman.  Tiffanie Hansen was residing on the property in a cottage, which she rented from the appellant.  The cottage had a small open plan room with kitchen facilities near the entrance, a bed at the opposite end and a living area in between.
  3. [11]
    About five weeks before the offences Ms Hansen commenced a relationship with Mr Robinson, who lived in Mossman but regularly stayed overnight at Ms Hansen’s cottage.  The two couples became friends.
  4. [12]
    On the night of the offences the two couples had been socialising at licensed venues in Mossman before returning as a group to Ms Hansen’s cottage.  Mr Robinson’s friend Jordan Crick, who was visiting from Melbourne, was in company with them.  They had all been consuming alcohol and smoking cannabis, except for the appellant’s girlfriend, Ms Barter, who was pregnant.
  5. [13]
    There was some toing-and-froing by Ms Barter and the between their residence and Ms Hansen’s cottage, including for the purposes of them preparing a roast dinner for the group.  Ms Barter testified she had brought a roasting knife and fork over to Ms Hansen’s cottage while the roast was cooking at the other house.

The argument between Robinson and Hansen

  1. [14]
    At a time when the appellant was absent from Ms Hansen’s cottage, an argument developed between Ms Hansen and her boyfriend, Mr Robinson.  Accounts of this argument varied at trial.  Ms Hansen claimed to have no memory of the argument or the ensuing incident in which the injuries were inflicted.
  2. [15]
    Mr Robinson testified he and Ms Hansen argued over her dog having urinated inside.  According to him, Ms Hansen “got pretty animated” and “lost the plot”, raising her voice at him.  On his account he had told Mr Crick to grab his things, including “the beers,” in order for Mr Robinson and Mr Crick to leave.  It was at this point that the appellant returned to the cottage and the offences occurred.
  3. [16]
    Mr Crick’s recollection of the argument between Ms Hansen and Mr Robinson was that it was over a dog and that there was “a lot of screaming” on Ms Hansen’s part.  He recalled Mr Robinson said they would go, and Mr Crick was in the process of grabbing the beers in order to leave when the appellant returned to the cottage.
  4. [17]
    Ms Barter, who was the only defence witness called, testified that Mr Robinson who, like Mr Crick, was very intoxicated, started calling Ms Hansen’s dog a “cunt”, a word Ms Hansen was well known to detest.  Ms Barter heard Ms Hansen twice ask Mr Robinson to leave and Ms Barter also stood up and asked him to leave.  On Ms Barter’s account, Mr Robinson stood up and grabbed Ms Hansen by the shoulders, shaking her violently, saying, “I’m the man.  I’m going to tell you what’s what.”
  5. [18]
    Ms Barter recalled that she screamed for Mr Robinson to stop, that she was pregnant.  In response, she testified Mr Crick told her, “Shut up.  I’m going to cut the baby out of your stomach.”  Ms Barter saw Mr Robinson grab a bar fridge and throw it towards Ms Hansen.  It missed her.  Mr Robinson then picked the fridge up again and threw it towards a wall.  Police photographs of the scene depicted a bar fridge upended near a wall at the bed end of the room.  Ms Barter recalled the bar fridge was thrown shortly before the appellant entered the cottage.
  6. [19]
    The appellant did not give evidence, however he entered into a recorded interview with police, which was adduced in evidence.  The appellant did not see the argument, although he detected some tension between Ms Hansen and Mr Robinson earlier, when Mr Robinson was repeatedly using the word “cunt”.  He was at his house when he heard the sound of Mr Robinson yelling from the cottage, as well as the sound of a large bang.  The appellant described running across to the cottage and, on his arrival there, seeing Mr Robinson holding Ms Hansen by the shoulders, shaking her.

The use of the knife

  1. [20]
    On the appellant’s account, he yelled “Oi”, getting the attention of Mr Robinson, who then started sprinting towards him from near the bed.  The appellant grabbed an aluminium baseball bat he and Ms Barter used to protect themselves from snakes when moving about the property and had left by the front door to the cottage.  He did not have time to use it to any particular effect before Mr Robinson slammed into him, crash tackling him into the corner of a kitchen cupboard, causing a laceration to the appellant’s back.  On the appellant’s account, he was trying to hold himself up and Mr Robinson was pulling him down.  In the process, the appellant grabbed something solid on the nearby kitchen bench with his hand.  On the appellant’s account, that object had to have been a knife.
  2. [21]
    The appellant explained that as he and Robinson were thereafter going to ground, Mr Robinson must have fallen on the knife, though that is not something the appellant actually saw.  He explained Mr Robinson continued to punch at him as the appellant tried to get up to extract himself from the struggle.  It was at this stage that the appellant apprehended Mr Robinson had been injured and that the item in the appellant’s hand was a knife.  Even after the appellant backed out the door and dropped the knife, Mr Robinson, who was obviously injured, still tried to continue to scuffle with the appellant but eventually desisted, as the reality of his injuries apparently took hold.
  3. [22]
    On Ms Barter’s account of what she observed when the appellant returned to the cottage, she did not notice the knife being used.  She testified:

“He is standing at the doorway and he just yells, “Oi,” very loudly and Mitch turns around and charges Storm and started punching into Storm.  Storm tried to fight back with the bat, but he didn’t get very far.  They’re both fighting and they’ve been dragged to the kitchen bench.  Mitch has Storm pinned on the kitchen bench … I tried to break it up.  I picked up a ceramic bowl while Mitch had Storm pinned to the bench and I’ve tried smacking him on the head with it because Storm couldn’t move and I was afraid for his life.  I have tried to punching him.  Mitch didn’t even realise. … He didn’t react. … That’s when Crickey has come over.  And Mitch and Storm have ended up on the floor. … Storm is on his back on the floor being pinned down by Mitch while Mitch is still punching him.  Crickey has run over and I’ve tried to hold Crickey back.  I was screaming still, obviously, and Crickey tells that if I don’t shut up again, that he’s going to cut the baby out of my stomach and he has punched me in the stomach.”[8]

  1. [23]
    On her account Mr Crick then tried to get past her as he was punching towards the appellant over her shoulder.  She did not notice the knife in the course of these events, nor did she notice Ms Hansen get involved.
  2. [24]
    It is clear that Ms Hansen, who allegedly has no memory of these events, must have moved close to the protagonists because she received wounds which must have occurred when the knife moved near her.
  3. [25]
    Mr Robinson’s account of what occurred when the appellant returned to the cottage coming through the front door was:

“To put it bluntly, he shaped up and said, “You know, if you want to fight, you can fight me”.  And then I approached him. … Walked towards him … Because I’ve seen him as a threat, you know, someone comes in yelling and carrying on and shaping up to you.  I was – we were on our way out.  We were trying to leave the property, you know.  … As I approached him, a knife was produced.  I don’t know where from.  I think it was off the kitchen bench because the knife that was used was one that [Tiffanie] had bought not so long ago that she used to cut tomatoes with.  Yeah, and basically we got into a scuffle.  I didn’t really – I didn’t see the knife at that stage.  I’d only seen the knife after [Tiffanie] jumped in the middle … [A]s I got toward him, like I said, he was shaping up to me.  I was trying to move him out of the way so I could get out the door.  Now, I knew something was wrong when [Tiffanie] jumped in the middle of it.  I couldn’t understand why, and then I just seen the flash of the blade. …  We were locked.  He was stabbing me.  I didn’t realise it but he was stabbing me. … [Tiffanie] got in between us and we broke apart, and that’s when I felt the pain. … I ran my hands down my right side of me body and I could feel something protruding.  I lifted up my shirt and my intestines were bulging out, and that’s when I just hit the deck, really.”[9]

  1. [26]
    In cross-examination it emerged Mr Robinson’s account to the police in his statement had been, relevantly:

“I recall Storm coming into the cottage through the front door and standing in the kitchen.  I recall Tiff standing in front of him.  Storm was going off at me.  I remember him mouthing off at me, but I don’t remember what he said.  I remember Storm and Tiff looking at me.  I think I was standing near the bed, the other end of the living area from the front door. … I don’t remember what Storm was going off at me about or what I said to him, if anything.  He was yelling and carrying on and I think I approached him because I think I got stabbed in the kitchen area.  As I approached Storm, he picked up a knife off the kitchen bench to his right.”[10]

  1. [27]
    On Mr Crick’s account, he was in the process of putting beers back into a carton while Mr Robinson and Ms Hansen were still arguing, with Mr Robinson telling her “I’m going”.  Mr Crick then “heard a cry” and looked across to see Mr Robinson being stabbed by the appellant in the kitchen.  Mr Crick described seeing the appellant thrusting the knife forwards in a stabbing motion into Mr Robinson but explained that Ms Hansen got in between them and “it was hard to see: there was arms going everywhere”.  He described moving towards the men quickly, moving Ms Barter, who was also nearby, away and striking at the appellant.  He explained he intervened to move Mr Robinson away from danger and thereafter tended to Mr Robinson.

Injuries

  1. [28]
    Mr Robinson suffered a penetrating wound to the chest near the left nipple and two penetrating abdominal injuries which dissected various internal structures including the bowel, some of which had oozed out of the wound.  The abdominal injuries involved significant blood loss and had Mr Robinson not received medical treatment he would not have survived.  Ms Hansen received two three-centimetre lacerations to the lateral chest area.  At least one of those injuries had penetrated the chest wall.  There was accordingly no doubt that the injuries inflicted by the knife upon Mr Robinson and Ms Hansen constituted grievous bodily harm and wounding respectively.

The issues at trial

  1. [29]
    The appellant was charged in count 1 with malicious act with intent, referred to hereafter as grievous bodily harm with intent, and in count 2 with unlawful wounding.  The issue of the appellant’s intention was a live one in count 1, however he was acquitted of doing grievous bodily harm with intent and only convicted of grievous bodily harm simpliciter.
  2. [30]
    Insofar as the issues at trial are relevant in the conviction appeal, they arise out of the conflicting and limited versions of how the injuries were inflicted.
  3. [31]
    The only persons who witnessed how Mr Robinson’s injuries must have occurred were Mr Crick and the appellant.  On Mr Crick’s account, the appellant moved the knife in a stabbing motion towards Mr Robinson, from which it was open for the jury to infer that the knife was thrust in a deliberate manner by the appellant towards Mr Robinson.  On the appellant’s account to police, the solid object he grabbed from the kitchen bench must have been a knife.  He had to have been holding the knife as he and Mr Robinson went to ground, grappling with each other.  There was room for the operation of both limbs of s 23 Criminal Code in respect of the appellant’s account, but no realistic room for its operation if Mr Crick’s account was accepted.
  4. [32]
    It was not suggested below or on this appeal that criminal negligence per s 289 of the Code had relevance to the infliction of the injuries upon Mr Robinson.  Nor was it suggested below or in this appeal that the defence of self-defence arose for exclusion.
  5. [33]
    No-one witnessed Ms Hansen being wounded.  It is not suggested the knife appeared to be deliberately wielded in her direction.  The logical inference is that she was inadvertently wounded as a result of moving close to the altercation between the appellant and Mr Robinson at a time when the knife must have been in motion.  This enlivened consideration of ss 23 and 289 Criminal Code and the factual issue of foreseeability.
  6. [34]
    The only other presently relevant issue is the conduct of the appellant in the aftermath of the altercation, a topic discussed below.

Conviction ground 1: “The learned trial judge erred in directing the jury on ss 23 and 289 Criminal Code

The directions given

  1. [35]
    In directing the jury in respect of the allegation of the appellant doing grievous bodily harm to Mr Robinson, the learned trial judge referred to a document, copies of which were before the jury, containing the elements of grievous bodily harm with intent, followed by the elements in the alternative of grievous bodily harm.  Beneath that appeared the following:

UNLAWFUL

(for either malicious act or GBH)

To prove the doing of the GBH was “unlawful” the prosecution must prove beyond reasonable doubt that:

  1. the Accused’s act that caused the GBH (ie the wielding of the knife) did not occur independently of the Accused’s will;

AND

  1. EITHER of the following:
  1. (a)
    The Accused intended GBH OR
  1. (b)
    An ordinary person in his position would reasonably have foreseen GBH as a possible consequence of the way he used the knife.”[11]
  1. [36]
    The above written directions cast in the positive those matters the prosecution needed to prove in order to exclude the defences under each limb of s 23(1), sometimes known respectively as an act independent of the exercise of will and as accident.
  2. [37]
    In initially explaining the elements of grievous bodily harm with intent her Honour explained how the s 23(1) defences needed to be excluded in order to prove the element of unlawfulness:

“The third element is the element of unlawfulness.  And unlawful means that the doing of the grievous bodily harm was not authorised, justified or excused by law.  In other words, to prove that it was unlawful the prosecution must disprove any defences that have been raised on the evidence.  The prosecution must disprove those defences.  Two defences are raised on the evidence and they are an act independent of the exercise of will and accident.  And we will get to those defences in a moment …”[12]

  1. [38]
    Her Honour later returned to the topic, directing the jury:

“Now, we get to the proof of unlawful.  How does the prosecution prove that the malicious act or the grievous bodily harm was unlawful?  There are two defences raised, as I said: act independent of the exercise of the will and accident.  This is not a case of self-defence.  Although the accused claimed that Mitchell was aggressive and had been physical, there is no claim that the accused needed to use the knife to reasonably protect himself from anyone.  Rather the defence claim is that he was unaware of that knife.  And so there are only two defences for you to consider.  I want to instruct you on what the prosecution needs to do to disprove them.  Remember that the accused doesn’t have to prove anything.  He doesn’t have to prove that he had a defence.  The prosecution has to prove that these defences do not apply.

Now, the act independent of the exercise of the will.  The law recognises that a person ought not be liable for acts that occur independently of the exercise of his will.  An example of that would be something done when someone was [sleepwalking] or a reflex action to pain.  The relevant act that you are considering is the act of the accused that caused the GBH.  And the Crown says that that is the wielding of the knife towards Mitchell.  And that is what the Crown must prove was a willed act.  The Crown must prove that that wielding of the knife towards Mitchell was a willed act.

To be a willed act there must be a choice to do it.  It doesn’t require an intention by the accused to cause any particular kind of harm.  But the act itself must be a conscious decision.  It must be a willed act.  To find that there was a willed act here you would need to be satisfied beyond reasonable doubt that the accused made a conscious decision to wield the knife towards Mitchell.  Perhaps I should just explain, if it’s not obvious, that I am explaining what these defences are.  I am also taking you through what needs to be proved for unlawful and that is shown on the second half of the first page.

The second defence is accident.  A person is not responsible for injury which is unforeseen and unintended.  So the prosecution may prove that the grievous bodily harm was not an accident by proving either that the accused intended to do grievous bodily harm or the resultant grievous bodily harm was reasonably foreseeable.  In other words, that an ordinary person standing in the accused’s shoes would reasonably have foreseen grievous bodily harm as a possible consequence of the way that the accused was using the knife, would reasonably have foreseen it as a possible consequence.

It would not be an accident if either of those two things in the second paragraph at the bottom of the first page are proved.  If the prosecution proved either that the accused intended grievous bodily harm or an ordinary person would have reasonably foreseen it, then it is not an accident.

Those defences must be considered in relation to both malicious act and also grievous bodily harm.  You work through that test for unlawfulness by looking at the first issue in paragraph 1, whether it occurred independently of the exercise of the will.  If it did not, if you’re satisfied it did not, then you go on to second test and you only need one, to be satisfied of one thing in paragraph 2.

You will notice that there is some repetition between the elements – or aspects of repetition between the elements and what’s needed to disprove the defences.  Even though that may be so, you need to methodically work through those tests of what is unlawful to ensure that you have properly applied the law.  In other words, you would go to the test for malicious acts, consider those three elements.  If you’re satisfied of the intention and the second element, you go to the test for unlawful at the bottom of the page and you work through that.  If all of those tests are met then you would find the accused guilty of malicious acts.  If you are not satisfied of intention but you are satisfied of all the other things then the accused would be guilty of grievous bodily harm.  But otherwise he would be not guilty of either.”[13]

  1. [39]
    In directing the jury in respect of unlawful wounding the learned trial judge also provided them with a document setting out the elements of the offence, followed by the element of unlawfulness as follows:

““UNLAWFUL

(for wounding)

To prove the wounding was “unlawful” the prosecution must prove beyond reasonable doubt EITHER there was NO DEFENCE, [paragraph A] OR it was CRIMINAL NEGLIGENCE [paragraph B]

PARAGRAPH A

  • A.  To prove there was no defence [it was neither an unwilled act or accident]

The prosecution must prove beyond reasonable doubt:

  1. (1)
    the act that caused the wounding (ie the wielding of the knife) did not occur independently of the Accused’s will;

AND

  1. (2)
    EITHER of the following:
    1. The Accused intended to wound OR
    2. An ordinary person in his position would reasonably have foreseen wounding as a possible consequence of the way he used the knife.

Alternatively:

PARAGRAPH B

To prove the wounding was criminal negligence:

The prosecution must prove beyond reasonable doubt ALL of the following:

  1. The accused had the knife under his control; AND
  1. The knife was of such a nature that, in the absence of care or precaution in its use or management: the life, health or safety of a person may be endangered
  1. The accused was aware of, or, should have reasonably foreseen the risk to life, safety and health
  1. The accused omitted to perform his duty to use reasonable care to avoid danger to life, health or safety.
  1. The way he held or used the knife (which resulted in the wound to Tiffany) so far departed from the standard of care owed by him to use reasonable care to avoid a danger to life, health and safety, as to amount to conduct deserving of punishment[14]
  1. [40]
    On these matters her Honour directed the jury as follows:

“The second element is that the wounding was unlawful.  And, again, that means that there is no defence for it on the evidence.  And, again, defences of an act independent of the exercise of the will and accident are raised by the evidence and they need to be excluded by the prosecution unless criminal negligence is proved.  Criminal negligence doesn’t apply to the first count but it is a matter that can be considered for the wounding.

So those two defences of accident and unwilled act that I spoke about don’t protect acts that are criminally negligent.  You see in the section for what is unlawful for this offence of wounding, you will see that it would be proved by either there being no defence – and the test for there being no defence is in paragraph A over the page – or it can be proved to be unlawful by proof that it was criminal negligence.  And the test for criminal negligence is in paragraph B over the page.  Either of those ways will prove unlawfulness for the wounding.

The prosecution case of course is that Tiffanie was struck by the accused’s knife when she tried to separate Mr Woods and Mitchell, and that she was wounded, either as the accused was deliberately wielding the knife, deliberately stabbing or lunging with the knife or she was wounded as he held the knife so dangerously that he was criminally negligent.  That’s what the Crown alleges.  It begs the question, what is criminal negligence?”[15]

  1. [41]
    The ensuing direction as to criminal negligence is dealt with below in discussing the third alleged error.

First alleged error

  1. [42]
    The appellant’s counsel submits the direction on s 23(1)(a) did not include a direction that the prosecution must exclude beyond reasonable doubt the possibility the movement of the knife entering the body of Mr Robinson occurred independently of the will of the appellant[16] or refer to the legal consequence of a failure to exclude that possibility, namely acquittal on counts 1 and 2.[17]
  2. [43]
    Particular emphasis was placed on the failure of the learned trial judge to expressly state, as is suggested in the Benchbook direction, that the prosecution must “exclude” beyond reasonable doubt the possibility that the actions causing injury occurred independently of the will of the appellant.  In support of the need for such a direction counsel referred  to the observations of Gaudron J in Murray v The Queen:[18]

“Having regard to the definition of murder in s 302 of the Code and the consideration of the question whether the act causing death is or is not a willed act is a question for the jury to determine, the issues for consideration by the jury in this case fell into three categories.  The first was whether the prosecution had excluded beyond reasonable doubt the possibility that the gun had discharged without pressure being applied to the trigger and, also, the possibility that it was discharged by an unwilled reflex or automatic motor action.  And ordinarily that would have required appropriate directions with respect to the nature of an unwilled act, as well as with respect to accident.”  (emphasis added)

  1. [44]
    It is true the learned trial judge, when specifically directing the jury on the detail of s 23(1)(a), did not expressly state that the jury needed to be satisfied beyond reasonable doubt the prosecution had “excluded” the possibility the movement of the knife into Mr Robinson occurred independently of the appellant’s will.  To put it another way, the jury were not expressly directed of the need for the prosecution to exclude the possibility of the appellant’s account of the wounds having been inflicted inadvertently as he was being assaulted by Mr Robinson.  However, when the summing-up is considered in context, the jury could not have been left in any doubt that was what the prosecution had to do.
  2. [45]
    Near the beginning of the summing-up, the learned trial judge clearly identified what she described as the “main dispute” in the case, saying:

“There are a number of things in dispute, of course, as between the prosecution and the defence, but at the heart, the main dispute you might think, is whether the accused was actually brandishing a knife or making stabbing motions with it or whether inadvertently he had it in his hand as he was being assaulted by Mitchell.”[19]

  1. [46]
    The scenarios to which her Honour there referred were plainly mutually exclusive.  One involved the conscious use of the knife and the other did not.  Proof of the former was necessarily exclusive of the possibility of the latter.  There was nothing ambiguous in this context about the final sentence of her Honour’s direction on s 23(1)(a), namely:

“To find that there was a willed act here you would need to be satisfied beyond reasonable doubt that the accused made a conscious decision to wield the knife towards Mitchell.”[20]

For the jury to have been satisfied beyond reasonable doubt the appellant made a conscious decision to wield the knife towards Mr Robinson, the appellant’s account of the knife being in his possession inadvertently in the course of the struggle must necessarily have been excluded as a possibility.

  1. [47]
    Her Honour directed the jury that if it was not satisfied of the element of unlawfulness, the appellant would be not guilty.[21]  In first going to the elements her Honour clearly indicated that in order to prove the doing of the grievous bodily harm was unlawful, the prosecution had to disprove the two defences raised on the evidence, namely an act independent of the exercise of will and accident.[22]  In later directing in respect of s 23(1)(a) the learned trial judge repeatedly indicated the prosecution needed to prove that the wielding of the knife towards Mr Robinson was a willed act.
  2. [48]
    The assessment of the adequacy of directions in any case necessarily involves matters of degree and depends upon the particular circumstances of the case.  In light of the features of the directions highlighted above, the jury could not have been in any doubt that the prosecution had to exclude beyond reasonable doubt the possibility that the knife’s infliction of injury upon Mr Robinson occurred independently of the will of the appellant.
  3. [49]
    The learned trial Judge’s directions also made plain the legal consequences of a failure to exclude the possibility the movement of the knife occurred independently of the exercise of the appellant’s will.  The jury were told each element needed to be proved beyond reasonable doubt to prove the appellant guilty.[23]  They were told the appellant would be not guilty of grievous bodily harm with intent or grievous bodily harm simpliciter if they were not satisfied beyond reasonable doubt of the element of lawfulness.[24]  The jury were told the prosecution must disprove the defence of an act occurring independently of the exercise of the will in order to prove the element of unlawfulness.[25]  They were likewise told such a defence needed to be excluded beyond reasonable doubt in respect of count 2 unless criminal negligence was proved.[26]
  4. [50]
    There is no substance to the first alleged error.

Second alleged error

  1. [51]
    The appellant’s counsel also complains the learned trial judge’s direction on the element of intent in the charge of grievous bodily harm with intent did not refer to how a finding of the requisite intent would remove any scope for consideration of s 23(1)(b).[27]  This complaint draws upon the fact that her Honour invited the jury to work through whether or not the elements of the offence of malicious act had been proved before then working through the elements of grievous bodily harm.[28]  The complaint is rendered academic by the jury’s acquittal of the charge of malicious act.  That the jury acquitted of that charge but convicted of the simpliciter charge of grievous bodily harm makes it obvious they held a reasonable doubt as to whether or not the grievous bodily harm had been inflicted with an intention to do grievous bodily harm.
  2. [52]
    In any event, the jury were provided with documents setting out the various elements of each charge and the learned trial judge acknowledged the presence of some repetition of elements therein.[29]  It was clear from the content of those documents and, for that matter, her Honour’s directions about the elements, that positive proof of an intention to do grievous bodily harm on the part of the appellant was both an elementary requirement of the proof of the charge of grievous bodily harm with intent and one means of the prosecution excluding the defence of accident.  The absence of a discrete direction explaining how proof of the former would remove the need for consideration of the latter did not constitute an error in the circumstances of this case.

Third alleged error

  1. [53]
    The appellant’s counsel submits the jury were erroneously directed to consider the elements of s 289 in isolation from the relevant facts and subsequent to their consideration of the exculpatory provisions of s 23.[30]
  2. [54]
    The learned trial judge’s short oral direction on s23 in respect of count 2 has been quoted above.  Her Honour then moved to criminal negligence, saying:

“Criminal negligence is a breach of the duty to take reasonable care of a dangerous thing under a person’s control.  Everyone – each of us – have a duty under the law to take reasonable precautions with dangerous things under our control.  A person is responsible for any injury that results from a failure to take reasonable care or reasonable precautions in respect of that dangerous thing.  What is a dangerous thing?  It is anything that could endanger the life, or the health or the safety of any person if care or precaution was not used in the use or the management of that thing.

You might think that a knife that is sharp enough to cut through somebody’s stomach – deeply into someone’s stomach – would be a dangerous thing, but that’s a matter for you.  To prove criminal negligence there needs to be a duty of care owed by the accused in respect of the knife – this knife.  There has to be a failure to perform that duty and the failure to perform the duty must be what caused the wounding.  The test, as I said, for – the test showing what needs to be proved to establish criminal negligence is those five matters set out in the very last portion, paragraph (b) of the handout.

When you consider all of those things, you will see that criminal negligence involves a serious departure from the reasonable standard of conduct, that is, a serious departure from reasonable care.  You see in paragraph 5, at the end, there is that reference to reasonable care, the requirement for reasonable care.  When considering whether the accused failed in his duty to use reasonable care, you would consider things like the nature and the extent of the risk which he should have foreseen from having the knife.  Reasonable care means the standard of conduct that a reasonable person, a reasonable person would use in the same circumstances.  A very high degree of negligence is required to be criminally negligent.  It means that the person showed so little regard for the safety of others that that person deserves to be punished as a criminal.  And that’s the difference between criminal negligence and negligence generally when people sue each other for money, to try and get some compensation.

The prosecution for criminal negligence is a criminal matter and the prosecution must prove its case for criminal negligence beyond reasonable doubt.  It must be a level of behaviour where the only adequate punishment is for that person to be branded as a criminal and punished by the State.  So his negligence must go substantially beyond the case where payment of some compensation would be adequate punishment.  That is, you need to be satisfied that the way – in this case, the way the accused held and used the knife at the time Tiffanie was wounded, that the way that he was holding and using the knife, was so far away from his duty to use reasonable care, so far away from his duty to use reasonable care to avoid danger to safety, that it amounted to conduct deserving of punishment.

In that respect the Crown says this was a volatile situation.  Three people in a small space; the accused introduced the knife; the number of injuries and the type of injuries, the location of those injuries to Tiffanie and Mitchell and lack of any cuts to the accused himself, indicate that the accused was using the knife in a way that put those people who were close to him – physically close to him – near him, especially put those people in danger and that he put Tiffanie in danger.  The Crown argues that to hold this knife – which has been described as a kitchen knife, a cook’s knife, a chef’s roasting knife – to hold that knife in the way that it had to be held to have caused these injuries when people were scuffling together, was an obvious and very dangerous thing to do.  The Crown says that at the very least it represented a serious departure from the reasonable standard of care.

The defence argument is that Mr Woods was not negligent, that he was caught in an ever changing action, that the knife wasn’t under his control when it entered the body of Tiffanie and that he is not guilty.  As I said, the test for criminal negligence is in paragraph (b) and if you’re not satisfied that the defences in (a) have been excluded then you go to paragraph (b).  Work through it.  All five things need to be proved beyond reasonable doubt for criminal negligence to be proved.”[31]

  1. [55]
    The learned trial judge told the jury the defences of an act independent of the exercise of a will and accident needed to be excluded by the prosecution unless criminal negligence was proved.[32]  The jury were clearly instructed that either the exclusion of both such defences or proof of criminal negligence were necessary to prove the unlawfulness element of unlawful wounding.[33]  The explanation that either pathway was potentially open was also obvious from the document distributed to the jury setting out the elements and defences and what was necessary in respect of them.  There is then no substance to that part of the complaint going solely to sequence.
  2. [56]
    However, there is substance to the complaint of inadequacy in relating the directions on the law applicable to the facts of count 2.  That complaint related particularly to the direction on criminal negligence although it applies in the same vein to the defence of accident in count 2.
  3. [57]
    It is clear from the jury’s verdict on count 1 that it rejected the defences of act independent of the exercise of will and of accident for that count.  Its rejection of the defence of act independent of the exercise of will would logically mean that defence was also excluded for count 2, the charge of unlawfully wounding Ms Hansen.  That is because the focus of that defence was upon whether the appellant wielded the knife independently of the exercise of his will, not the foreseeability of injury of others.
  4. [58]
    The jury’s apparent satisfaction that the appellant’s wielding of the knife was willed renders academic an argument of the appellant[34]that the jury should have been but were not told the appellant could not be regarded as having the knife in his charge or under his control, as s 289 requires, if his wielding of it occurred independently of the exercise of his will.
  5. [59]
    However, it does not follow from the jury’s verdict on count 1 that the defence of accident was also excluded on count 2.  There being no suggestion the appellant intentionally wounded Ms Hansen, the live issue in respect of the defence of accident in count 2 was whether an ordinary person would reasonably have foreseen Ms Hansen’s wounding as a possible consequence of the appellant’s wielding of the knife in his confrontation with Mr Robinson.  This was a different issue than had been in play for the defence of accident in count 1, which was, in this context, focussed on the foreseeability of Mr Robinson’s, as distinct from Ms Hansen’s, injuries.
  6. [60]
    The direction given by the learned trial judge of the potential application of the defence of accident in count 2 identified no such distinction.  It informed the jury the defence of accident, earlier discussed in respect of count 1, again needed to be excluded in respect of count 2, but it did not explain or analyse the different factual aspects which the jury needed to consider in the application of that defence to count 2.
  7. [61]
    Merely informing the jury the defence of accident, explained in respect of count 1, also needed to be excluded by the prosecution in respect of count 2, did not alert the jury to the fundamental difference on the issue of foreseeability as between the two counts.  Once it was accepted the appellant was knowingly wielding the knife, the foreseeability of him occasioning grievous bodily harm to the man he well knew he was physically confronting was plainly more obvious than the foreseeability of him wounding a third party intervener, such as Ms Hansen.
  8. [62]
    As to the foreseeability of injury to Ms Hansen, her physical movement into the range of the protagonists only occurred after the altercation was under way and, on the appellant’s account, occurred unnoticed by him.[35]  On Mr Robinson’s account, Ms Hansen did not move between he and the appellant until after he had the appellant “by his scruff” and the appellant was apparently stabbing him.[36]  In a similar vein, Mr Crick testified he initially had no idea where Ms Hansen was and did not know where she had come from prior to the point in time when the altercation between the appellant and Mr Robinson was occurring and she “ended up between them”.[37]  As for Ms Barter, she did not see Ms Hansen’s involvement and Ms Hansen had no memory at all of the episode.  The exhibited photographs of the area of the cottage where the events occurred show there was a distance of some substance between the opposite ends at which the bed and kitchen were located.  No witness testified to having seen Ms Hansen move, as at some point she must have, from the bed area to the kitchen area where the altercation between the appellant and Mr Robinson was underway.
  9. [63]
    In short, the evidentiary fuel for the drawing of inferences as to what an ordinary person in the position of the appellant may have foreseen, vis-a-vis the wounding of Ms Hansen, was quite limited.  Moreover the evidence was silent as to how quickly upon Ms Hansen’s physical movement between the protagonists she was wounded.  There was no serious suggestion that the altercation continued for a long time after she moved between them.  The evidence was also silent on finer details such as whether the protagonists were positioned vis-a-vis each other, in such a way that the appellant would have noticed Ms Hansen moving in to intervene.  On the known facts it is possible that Ms Hansen was wounded immediately upon her intervention, in circumstances where the appellant did not notice her coming and at a time before he realised she was intervening.
  10. [64]
    These factual features of the case demonstrate a fundamental difference in the strength of the prosecution case regarding the foreseeability of injury to Mr Robinson as distinct from the foreseeability of injury to Ms Hansen.  Regrettably counsel did not assist the trial judge with submissions about the potential significance of such features to the jury’s assessment of the issue of foreseeability and their significance went unidentified and unexplained in directions.
  11. [65]
    Section 23 is, on its terms, subject to the operation of s 289, however a similar omission occurred in the learned trial judge’s direction in respect of s 289’s potential application to count 2.  In explaining criminal negligence her Honour reminded the jury of the content of the document given to them, setting out the five matters required to be proved beyond reasonable doubt in order to prove the wounding was criminally negligent.  Her Honour did not specifically elaborate upon them, save for their reference to the requirement for reasonable care.  In particular, there was no elaboration upon the written direction’s requirement the prosecution prove:

“3. The accused was aware of, or, should have reasonably foreseen the risk to life, safety and health.”

  1. [66]
    To the extent there was any discussion of how the law of criminal negligence applied to the facts of the case, the direction characterised the defence argument on criminal negligence as being the same as the defence argument on liability generally, namely that the appellant was holding the knife inadvertently rather than wielding it deliberately towards Mr Robinson.  The point was not made to the jury that, even if they were satisfied beyond reasonable doubt that the appellant did wield the knife deliberately in the direction of Mr Robinson, it did not follow automatically the injuries upon Ms Hansen were a product of the appellant’s criminal negligence.  There was no discussion of the fact that much would depend on what Mr Robinson knew or ought reasonably have known about the near presence and potential endangerment of Ms Hansen.
  2. [67]
    The learned trial judge’s reference to the facts in this case spoke of three people being in a small space, of the appellant using the knife in a way that put those people who were physically close to him in danger, and of the danger of holding the knife in the way that it had to have been held to have caused injuries when people were scuffling together.[38]  Yet on any view of the facts, Ms Hansen had not been in particularly close physical proximity to the appellant and Mr Robinson when the physical altercation began between those men in the kitchen.  To the contrary, the last intelligence of her whereabouts at that time was that she was at the opposite side of the room near the bed.  The direction did nothing to alert the jury to the possibility that Ms Hansen’s injuries may have been inflicted in the initial moments of her intervention, before the appellant was conscious of her presence.  Nor did it deal with the facts relevant to whether the appellant ought reasonably have foreseen her intervention, a consideration relevant to whether he should reasonably have foreseen a risk to her safety from his movement of the knife.
  3. [68]
    The direction’s silence about the above factual considerations and their relevance to the jury’s properly informed consideration of both accident and criminal negligence in respect of count 2 (“the failure to adequately direct on the foreseeability issue”) meant that critical aspects of how those legal provisions applied to the facts of this case went unexplained.  While those provisions involve different tests, the real issue in respect of their application to count 2 was the foreseeability (whether from the perspective of the appellant or an ordinary person in his position) of Ms Hansen’s movement into the fray and, in turn, of her wounding.  On this real issue the directions were silent.
  4. [69]
    A trial judge is not bound in directing the jury to discuss all evidentiary issues and arguments.[39]  However, the judge is obliged to explain how the law applies to the facts of the case, identifying the real issues in the case in light of that law.[40]
  5. [70]
    The foreseeability of Ms Hansen’s movement into the fray and, in turn, of her wounding was a real issue in the case pertaining to count 2.  It is difficult to avoid the impression that its status as a real issue was obscured by the attention given to the more serious harm alleged by count 1 and the focus in the trial on the “main dispute” as to whether the wielding of the knife was deliberate or inadvertent.  As already explained, even if that main dispute was resolved against the appellant, as apparently it was, the foreseeability of Ms Hansen’s movement into the fray and, in turn, of her wounding, remained a real issue for the jury in respect of count 2.
  6. [71]
    Defence counsel did not seek a redirection on the issue of foreseeability in count 2.  Where a direction not asked for should have been given, this court ought only interfere if the failure to direct constituted a miscarriage of justice.[41]  No such miscarriage will have occurred unless it is reasonably possible the failure to direct the jury may have affected the verdict.[42]
  7. [72]
    In the case at hand there is a reasonable possibility that the failure to adequately direct the jury on the foreseeability issue pertaining to count 2 may have affected the verdict on count 2.
  8. [73]
    By reason of that failure the jury may have erroneously considered the issues relating to count 2 were so similar to those relating to count 1 that guilt of count 2 flowed automatically in the wake of a conclusion of guilt on count 1.  Without the obvious difference in the issue of foreseeability as between the injuries done to Mr Robinson and the injuries done to Ms Hansen being identified and without the significance of the facts to that issue in count 2 being explained, the jury were ill-equipped to correctly apply the law relating to accident and criminal negligence to the facts in respect of count 2, wrongly depriving the appellant of a chance of acquittal of count 2.
  9. [74]
    The failure to adequately direct on the foreseeability issue in count 2 thus constituted a miscarriage of justice.  The proviso is inapplicable because the nature of the error means it cannot be said that no substantial miscarriage of justice has actually occurred by reason of the error.
  10. [75]
    It follows the appeal against conviction, at least as it relates to count 2, ought be upheld.

Conviction ground 2: “The learned trial judge erred in directing the jury on ‘flight’ on count 1”

  1. [76]
    The appellant’s counsel submits the learned trial judge erred in permitting the jury to consider the appellant’s departure from the scene as evidence of his guilty mind and in not directing the jury to disregard the prosecutor’s submission on the link between flight and alleged lies.[43]  It is necessary to review the evidence of what the post-offence conduct was and consider what was made of it by the learned Crown prosecutor, before turning to the course taken by the learned trial judge.

Post offence conduct

  1. [77]
    Ms Barter explained that, after the altercation, the appellant grabbed her and they ran over to their house to fetch their portable home phone in order to ring the ambulance.  She rang the ambulance as they walked from their house on the driveway to their car.  They then drove in their vehicle.
  2. [78]
    It appears from the testimony of the appellant’s mother, who was called to give evidence by the prosecution, that she received a telephone call from the appellant, stating he needed help to get Ms Barter to hospital because she had been punched in the stomach and they thought she was in labour and did not have enough fuel to get to the hospital.  An arrangement was made to bring some fuel and meet them along the way.  Mrs Woods travelled with her partner and met up with the appellant and Ms Barter along the road, providing petrol for their car.  Mrs Woods then took Ms Barter to the hospital while Mrs Wood’s partner took the appellant to the partner’s house.
  3. [79]
    Mr Woods’ recollection of the aftermath was that he and Ms Barter had fetched some items, including a phone, from their house and moved to where they could get phone reception for Ms Barter to call Triple O to ask for the ambulance and police.  The appellant explained to police of this point in time:

“[A]ll I remember is saying I need to go somewhere, I need to get my head around this, this is fucked up.”[44]

  1. [80]
    He went on to explain:

“[W]e were heading down to Cairns.  We were running out of fuel. …  And I called Mum and I lied to her, I tell her where I was, she was having contractions, my girlfriend. … So I said, “Mum, I need some fuel ‘cause my girlfriend’s having contractions.”  So she’s coming up with her partner and they put some fuel in the car and I ask her partner if I could just go back to his, so it was just an instant kind of thing … And then Mum took … my girlfriend to the hospital in her car … I just wanted to try to wrap my head around what just happened so I’ve gone back to his, my mum’s partner’s house. … [J]ust laid there for like an hour and a half.  Just thinking.”[45]

  1. [81]
    When asked what he did after that, he replied:

“I came into the hospital ‘cause my leg was very sore.  I asked if they could check it out and if they can bring the detectives and the coppers came down so I can speak to ‘em.  And five minutes later I was in a pair of handcuffs … I wasn’t dodging like they thought maybe I was trying to hide, but I was just trying to comprehend what the hell just happened.”

What was said by the Crown prosecutor?

  1. [82]
    The learned Crown prosecutor addressed the jury after defence counsel.  She did not, when matters of law were discussed prior to addresses, identify flight as an issue as being relied upon as evidence of the appellant’s consciousness of his guilt.  In the course of her address she said:

“So I could now – we’re going to turn to what Mr Woods has – you’ve heard from Mr Woods in this trial.  And I’ll show you some examples of how he has lied in this trial.  So what did he do immediately after this happened?  He ran away and needed time to get his head together.  So just remember, just before this, they’re all best – they’re all mates having a gathering that night in the weeks when Tiffanie started going out with Mitchell.  He was staying there every night.  They were seeing each other every day.  They were going from place to place.  They’re all friends.

See, if things – if he’d done nothing wrong and it’s not his fault, why get away so quickly?  Why not stay and try and help?  I suggest he ran away because he knew he had gone too far and he knew that Mitchell was in serious trouble.  And then look at his concern for Ms Barter.  He had to get away to get her to the hospital in Cairns.

And according to Ms Barter, who told you yesterday that she was in labour, this is their first child together.  He didn’t even go to the hospital with her.  His mother took her to the hospital.  He wasn’t worried about Ms [Barter]; he was worried about himself and the trouble he was in.”[46]

  1. [83]
    The learned Crown prosecutor then moved on to discuss aspects of the appellant’s account to police which did “not add up” and in effect were said to be implausible or inconsistent with the evidence of other witnesses.  These aspects were the “examples” the prosecutor earlier said she was turning to.  They were submitted on after the submission about flight.  There is therefore no substance to the appellant’s argument that the prosecutor’s submission “blended” the topic of flight and lies so as to require a special direction about lies.

The approach taken by the learned trial judge

  1. [84]
    At the conclusion of the learned Crown prosecutor’s address the jury retired and the learned trial judge pointed out to the learned Crown prosecutor that she had addressed the jury on flight without raising the question of whether this was a case where a consciousness of guilt argument could arise.  The prosecutor apologised, explaining she had thought of the argument overnight.  In the ensuing exchange, defence counsel, who had not anticipated the prosecutor’s flight argument, did not seek the discharge of the jury.  Rather, he sought that the learned trial judge provide a direction identifying alternate innocent explanations or alternatively direct the jury to simply disregard what had been raised by the prosecutor.  Her Honour indicated she favoured the former course and confining the potential use of flight as consciousness of guilt to count 1.

Discussion

  1. [85]
    No complaint is made as to the adequacy, per se, of the directions the learned trial judge later gave as to flight.[47]
  2. [86]
    The appellant’s complaint is that her Honour permitted flight to go to the jury at all as potential evidence of consciousness of guilt.  The two reasons for complaint are that the evidence of flight did not have sufficient probative force and that it was unfair to permit its use because it was raised belatedly.[48]
  3. [87]
    The evidence did have probative force.  It supported the inference the appellant’s fleeing from the scene and later travelling to his Mother’s partner’s house occurred because he knew he had wielded the knife against Mr Robinson knowingly and deliberately rather than unwittingly and unintentionally.  As with any form of circumstantial evidence, the evidence also gave rise to competing inferences, such as panic or concern for Ms Barter’s well-being.  However which inference should be preferred was a jury issue.[49]
  4. [88]
    As to the complaint of unfairness, defence counsel’s alternative submissions below impliedly accepted the unfairness worked by the Crown prosecutor raising the issue after defence counsel had addressed could be adequately addressed by the flight direction identifying the competing innocent inferences.  The ensuing directions did just that, in terms sufficient to identify the points defence counsel would on notice otherwise have advanced in his address.  Defence counsel sought no re-directions in the matter.  Any potential unfairness worked by the Crown prosecutor’s unheralded submission to the jury was well neutralised by the directions given.  This ground of appeal must fail.

Conclusion re conviction appeal

  1. [89]
    It follows from the above analysis that the appeal against conviction must fail in respect of count 1, but should be upheld in respect of count 2.

The application for leave to appeal sentence

  1. [90]
    The applicant was sentenced to concurrent terms of imprisonment of five and a half years for grievous bodily harm and two years for unlawful wounding.
  2. [91]
    Argument on the application for leave to appeal sentence was predictably targeted at the sentence of five and a half years’ imprisonment for grievous bodily harm.  That sentence appears to be a particularly significant sentence for an offence of grievous bodily harm simpliciter by a 21 year old first offender.  That is particularly so bearing in mind it was committed during an altercation prompted, at least in part, by the complainant’s behaviour and in circumstances where the knife used to inflict the grievous bodily harm was grabbed spontaneously from the kitchen bench against or near which the physical altercation was already underway.
  3. [92]
    However, before giving more detailed consideration to the application for leave to appeal sentence the consequence for sentence of the quashing of the conviction on count 2 ought be considered.  At first instance, the learned sentencing judge did not specifically state the sentence imposed in respect of count 1, which was imposed concurrently with the sentence on count 2, was any higher than it would have been if he was only being sentenced in respect of count 1.  Nonetheless, the respondent unsurprisingly highlighted the infliction of injury “upon a second victim” as an aggravating feature relevant to the overall quantum of sentence.  The parties’ submissions on the application for leave to appeal sentence did not deal with the potential significance to the outcome of that application of the quashing of a conviction on count 2.
  4. [93]
    The parties ought be permitted to make further submissions to this court in light of that outcome.  In that context the parties further submissions ought address whether the fixing of an appropriate sentence in respect of count 1 can or should take into account that, in the course of its commission, Ms Hansen was also wounded.  Whether Ms Hansen was wounded in consequence of a criminal offence in its own right or not is a potentially significant issue[50] and now remains to be seen in light of the ordering of the retrial on count 2.  Indeed it remains to be seen whether the prosecution will, in all of the circumstances, further pursue the charge of unlawful wounding in respect of Ms Hansen.
  5. [94]
    Subject to that variable, the submissions of the parties should address the question of whether or not the appropriate sentence on count 1 can permissibly take account of Ms Hansen’s injuries as an incidental consequence of the appellant’s commission of the offence of grievous bodily harm upon Mr Robinson, as distinct from a consequence of a discrete offence in its own right upon Ms Hansen.
  6. [95]
    In the circumstances I would order the parties to file further submissions in writing, addressing the above issues and the orders which ought be made in light of them.  In making those orders I would allow sufficient time, say four weeks, for the prosecution to first determine whether or not it intends to continue with the charge of unlawful wounding in respect of Ms Hansen.

Orders

  1. [96]
    I would order:
  1. Appeal dismissed in respect of count 1 but allowed in respect of count 2.
  1. The conviction on count 2 is quashed.
  1. The appellant is to be re-tried on count 2 (unless it is discontinued).
  1. The respondent will, within four weeks of these orders, inform the appellant’s legal representatives of whether it intends to proceed with the retrial of the appellant in respect of count 2 on the indictment.
  1. Within six weeks of these orders, the parties will exchange and file written submissions in respect of the disposition of the application for leave to appeal sentence including:

a. what course ought be taken regarding the timing of the disposition of the application for leave to appeal sentence in the event that the prosecution intends to retry the appellant on count 2;

b. supplementary submissions as to sentence range in light of the quashing of the conviction on count 2 and as to whether Ms Hansen’s injuries can or should be taken into account for the purpose of sentence on count 1.

  1. The parties will exchange and file any submissions written in reply within seven weeks of these orders.

Footnotes

[1]  AR72 L10 and L22.

[2]  AR73 L2.

[3]  See MFI “C” at AR289-292.

[4]  See also the reference to “lunges” and “stabbing motions” at AR182 L1.

[5]  (2002) 212 CLR 93 at [17].

[6]  See AR183 L24-40. See also her Honour’s redirection at AR197 L10.

[7]  See the summary by Henry J at [31] and [46].

[8]  AR 115 LL16-39.

[9]  AR 35 L38 – AR 37 L10.

[10]  AR 51 LL5-15.

[11]  AR 289.

[12]  AR 181 LL15-20.

[13]  AR 183 L12 –AR 184 L25.

[14]  AR 291-292.

[15]  AR 187 LL7-28.

[16]  Appellant’s outline of submissions [27].

[17]  Appellant’s outline of submissions [28].

[18]  (2002) 211 CLR 193, 200.

[19]  AR 177 L20.

[20]  AR 183 L37.

[21]  AR 184 L25.

[22]  AR 181 L19.

[23]  AR 176 LL28-32, AR 180 L23.

[24]  AR 184 L25.

[25]  AR 181 LL15-19.

[26]  AR 187 L11.

[27]  Appellant’s written submissions [29].

[28]  AR 184 L20.

[29]  AR 184 L17.

[30]  Appellant’s written outline [23].

[31]  AR 187 L30 – AR 188 L43.

[32]  AR 187 L11.

[33]  AR 187 L21.

[34]  Premised upon the observations of Mackenzie J in R v Kidd [2001] QCA 536 [21].

[35]  AR 270 LL2-11, 2-30.

[36]  AR 36 L18 – AR 37 L5.

[37]  AR 70 L15, AR 71 L10.

[38]  AR 188 LL26-35.

[39] Domican v The Queen (1992) 173 CLR 555, 560, 561.

[40] Alford v Magee (1952) 85 CLR 437, 466; R v Mogg (2000) 112 A Crim R 417.

[41] Dhanhoa v The Queen (2003) 217 CLR 1, 13.

[42]  Ibid.

[43]  Appellant’s written outline [39].

[44]  AR 266 L12.

[45]  AR 270 L42-AR 271 L32.

[46]  AR 170 LL27-44.

[47]  AR 185L35- AR 186 L33.

[48]  Appellant’s written outline [39].

[49] R v Reid [2018] QCA 63 [107] – [111].

[50]  See R v D [1996] 1 Qd R 363.

Close

Editorial Notes

  • Published Case Name:

    R v Woods

  • Shortened Case Name:

    R v Woods

  • MNC:

    [2018] QCA 167

  • Court:

    QCA

  • Judge(s):

    Morrison JA, North J, Henry J

  • Date:

    27 Jul 2018

  • White Star Case:

    Yes

Litigation History

Event Citation or File Date Notes
Primary Judgment DC362/17 (No Citation) 10 Nov 2017 Date of Conviction and Sentence (Clare SC DCJ).
Appeal Determined (QCA) [2018] QCA 167 27 Jul 2018 Appeal against conviction dismissed in respect of count 1 and allowed in respect of count 2; conviction on count quashed and re-trial ordered (unless discontinued); directions made for the application for leave to appeal against sentence: Morrison JA and North and Henry JJ.
Appeal Determined (QCA) [2018] QCA 312 13 Nov 2018 Application for leave to appeal against sentence granted; appeal allowed; sentence imposed for grievous bodily harm set aside and instead applicant sentenced to four years imprisonment: Morrison JA and North and Henry JJ.

Appeal Status

{solid} Appeal Determined (QCA)