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R v Greatbatch

 

[2019] QCA 240

SUPREME COURT OF QUEENSLAND

CITATION:

R v Greatbatch [2019] QCA 240

PARTIES:

R

v

GREATBATCH, Jason Wayne

(appellant/applicant)

FILE NO/S:

CA No 278 of 2018

SC No 58 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

Supreme Court at Mackay – Date of Conviction: 11 October 2018; Date of Sentence: 12 October 2018 (Crow J)

DELIVERED ON:

5 November 2019

DELIVERED AT:

Brisbane

HEARING DATE:

23 October 2019

JUDGES:

Morrison JA and Mullins AJA and Henry J

ORDERS:

  1. Appeal against conviction dismissed.
  2. Application for leave to appeal sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted at trial of the attempted murder of a baby – where the appellant, obsessed with the baby’s mother, had gone to their house armed with a knife following threats to hurt the mother – where the mother had protectively cocooned the baby with her own body and the appellant had moved the knife around her to stab in the baby’s direction – where the baby was ultimately unharmed, a fact the appellant submitted was evidence he had not intended to kill the child – whether the evidence was of a sufficiency and quality capable of proving, beyond a reasonable doubt, the guilty inference to the exclusion of innocence inferences

Criminal Code (Qld), s 4

Cutter v The Queen (1997) 71 ALJR 638; [1997] HCA 7, cited

GAX v The Queen (2017) 91 ALJR 698; [2017] HCA 25, applied

House v The King (1936) 55 CLR 499; [1936] HCA 40, applied

Knight v The Queen (1992) 175 CLR 495; [1992] HCA 56, cited

MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, applied

Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50, applied

R v O’Neill [1996] 2 Qd R 326; [1995] QCA 331, applied

Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56, applied

SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, applied

COUNSEL:

D R Wilson for the appellant/applicant

J A Wooldridge for the respondent

SOLICITORS:

Taylor Solicitors for the appellant/applicant

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    MORRISON JA:  I have read the reasons of Henry J and agree with those reasons and the orders his Honour proposes.
  1. [2]
    MULLINS AJA:  I agree with Henry J.
  1. [3]
    HENRY J:  The appellant was obsessed with a young woman, MT.  She rejected him and he resolved to find a way to hurt her.  This he did in a surprise invasion of her home at night, using a knife to attack her and her loved ones, including her 10 month old baby son.  He was convicted of attempting to murder the baby by moving his knife in the baby’s direction while Ms MT tried to shield her baby from the attack.
  1. [4]
    His appeal against conviction turns principally upon whether it was open to a jury, acting reasonably, to infer an intention solely to kill the baby to the exclusion of lesser potential intentions.

The proceeding below

  1. [5]
    The appellant’s violent home invasion gave rise five counts on the indictment, namely:
  1. wounding with intent of BK;
  2. burglary;
  3. attempted murder of BN;
  4. attempted murder of Ms MT; alternatively
  5. grievous bodily harm with intent to do grievous bodily harm of Ms MT.
  1. [6]
    The appellant pleaded not guilty to all five counts. A jury was empanelled and he was put in their charge. Before the opening of the prosecution case the appellant was re-arraigned on counts 1, 2 and 5 in the jury’s presence and he pleaded guilty to them. The Crown accepted the plea of guilty to count 5 in discharge of count 4. This left count 3, the charge of attempted murder of BN (“BN”), the baby son of MT and her husband BK. The jury convicted the appellant on that charge.

Grounds

  1. [7]
    The appellant appeals his attempted murder conviction on grounds that:
  1. the verdict of the jury is unreasonable or cannot be supported having regard to the evidence; and
  2. the learned trial judge erred by failing to exclude two photograph exhibits (tendered and marked 12 and 13) and this error led to a miscarriage of justice.
  1. [8]
    Ground 2 is without substance and will be dispensed with briefly later in these reasons. Ground 1 requires more extensive attention.

Ground 1 Verdict unreasonable, cannot be supported

Introduction

  1. [9]
    The task of determining whether the verdict was unreasonable or cannot be supported requires consideration of whether on the whole of the evidence it was open to the jury to conclude beyond reasonable doubt that the appellant was guilty of the charges.[1]  In performing that task this Court must undertake an independent assessment of both the sufficiency and quality of the evidence.[2]
  1. [10]
    The appellant did not give evidence and was not alleged to have made admissions. Proof of the charge relied upon circumstantial evidence. It follows this Court’s assessment of the evidence must be undertaken bearing in mind the need for the evidence to be of such quality and sufficiency as to compel the inference of guilt to the exclusion of inferences consistent with innocence.[3]
  1. [11]
    Assessment of whether there was evidence of a sufficiency and quality capable of proving the guilty inference to the exclusion of the innocent inferences turns to a significant extent upon what is to be made of the appellant’s physical actions in his attack upon Ms MT and BN.  However, it is also informed by the broader events that night and the background to them.

Background

  1. [12]
    Ms MT had been an employee at the appellant’s bakery in Ceduna, South Australia from the age of 13. She ceased employment there in 2012 when, aged 17, she moved to northern NSW with her boyfriend BK and his mother.
  1. [13]
    Mr BK had become Ms MT’s boyfriend during his latter years at high school. They remained in a de facto relationship throughout the ensuing years, eventually marrying after the offences in question. They had a baby, BN, in February 2015, about 10 months before the offences, which were committed on 28 December 2015.
  1. [14]
    When Ms MT had worked for the appellant in Ceduna he had told her he was alone and she was his only friend. She testified:

“He always used to say that he wanted to marry somebody like me or me one day.  And I always used to say that he was too old, he was like my dad, and we used to joke about it.  I gather now it’s not a joke.”[4]

  1. [15]
    There was no romantic relationship between them, but after her departure the appellant continued to communicate with her by telephone and email, expressing a desire for her to return to Ceduna.  She testified, for example, that the appellant:

“Told me that he could look after me better than BK and that if I ever wanted to come back, he would pay for my furniture and for myself to come back straightaway because he wanted me to be in Ceduna.”[5]

  1. [16]
    After Ms MT’s departure from employment with the appellant he would pay her money, at least weekly. Ms MT testified in respect of the purpose of the payments:

“He would say that it was [to] help look after me, to pay rent for his girl, making sure that he’d look after me. … To buy sexy lingerie, to buy sex toys, to get my hair done, to make myself feel pretty.”[6]

She testified the amounts would vary, sometimes being a couple of hundred dollars and the biggest payment being $2,000 for a photograph.

  1. [17]
    The appellant continued to contact Ms MT after she and Mr BK moved from northern New South Wales to the Gold Coast. He would call her workplace, notwithstanding she had not told him where she was working. Such calls would occur “multiple times a day, sometimes five times, sometimes 10 times”.[7]  Ms MT testified to receiving unheralded telephone calls at her workplace from the appellant:

“I told him not to call me at work, that I was getting in trouble, to leave me alone.  And it seemed like he was being obsessive, calling me all the time at work and I got embarrassed because all the other girls got annoyed.”[8]

  1. [18]
    Ms MT evidently struggled with how to deal with the appellant’s attentions. She testified:

“… I know that he really cared, and even though I told him all the time I’m scared, he’d always say he’d kill himself or, like, he was alone.”[9]

  1. [19]
    Ms MT discovered she was pregnant in late August, early September 2014. She did not tell the appellant of that news but he found out and telephoned and spoke to her. This conversation and the appellant’s concerning reaction was explained during Ms MT’s evidence in chief as follows:

“And using the words that he used, can you repeat the conversation to the jury?---Somebody – somebody put something on Facebook about my pregnancy.  He said, like, he wanted – he wanted to have babies, and he had said at another – another time over the phone, but the time he said, like, “Is it my baby?” and I just said, “We haven’t done - - -” …

You were telling the jury about a conversation you had whilst you were … over the phone, and that somebody had posted something on Facebook about your pregnancy?---Being pregnant, yes.

And what did it – you just trailed off there.  What did the defendant say to you on that topic?---That he wanted to have my baby, and was it his baby, and I said to him, “Well, how could it be your baby?”

… After that conversation with him … did the contact from him change, the nature of it?---Yes.  After the phone call he became a different person.

Sorry.  I was, perhaps, putting that poorly.  What I want to know is whether or not it increased or decreased, or stayed the same, the routine of the contact?---He became persistent and contacted me a lot more – or tried to contact me a lot more.

And how did he try to do that?---Via phone.  He called everybody that I knew, got phone numbers of everybody trying to get in contact with me. …

Was there any conversation between the two of you about where you were located on the Gold Coast?---No.

Was the topic ever raised by text message?---He asked, but I never wanted to tell him where I was …

Okay.  You’ve described to the jury an increase in contact from him.  And you started also to say that there was a change.  Now, what was the change that you noticed?---He seemed like he’d gotten nasty and he was short in his words, and he seemed like a different person and contacted work multiple – multiple times, four or five phone calls, one after the other, as soon as myself or one of the girls would answer the phone, and they’d hang up the phone because it wasn’t a client, and he just kept calling.  He’d call my phone.

Can I ask you to come back to what you said to the jury about him being nasty.  What did he do that was nasty?---He said he was going to hurt me.

How many times did he say he was going to hurt you?---The phone call he said, “I’m going to hurt you like you hurt me.  I’m going to hurt you.  I’ll find a way”.”[10] (emphasis added)

  1. [20]
    Ms MT and Mr BK subsequently moved to the Mackay district. Within a week or two of giving birth to BN she received a telephone call from the appellant. The following exchanges occurred in Ms MT’s evidence in chief about that telephone call and the ensuing contacts:

“And what did you say to him and what did he say in reply?---He said that – asked, like – he said, “I heard you had a little boy.”  And I said, “How did you know?”  He said, “I knew you had him a couple – a couple of weeks ago.”  And I said, “No, I only had him a week – a week or two ago.”  And he was definitely wrong about when BN was born.  He tried to say that he was born before he wasn’t.  And I was like, “No.”  He asked me where I was and he wanted to send something for him.  And then he went on to talk about his sister having a baby and that he – he wouldn’t be able to have anything to do with it.

…  Did you send any text messages to Mr Greatbatch the following – roughly the following month, in March of 2015?---I sent him the one text message.  I – he had called me about private investigators, and I felt scared and I didn’t know what else to do.  I spoke to my mum and - - -

Sorry.  Can I just ask you to come back to this text message that you sent to Mr Greatbatch?---Yeah.  I sent a text message trying to tell him what I thought he’d want to hear so he wasn’t upset or – he didn’t kill himself or anything like that.  I - - -

When you say that, what was actually in the text message?---I said to him that I’m sorry that me and BK had a baby.  It never would have worked with us.  I just – I just wanted a – him to leave me alone and just – I just tried to explain it in a way that he’d get it through his head that whatever he thought was going on is just to leave me alone.

And what did he say in response to this text message?---He was going to call me and I got Mum to record it.  He said he was going to hurt me and sue me and find me.”[11] (emphasis added)

  1. [21]
    Evidence was led at the trial of the appellant having, in 2015, engaged private investigators to locate Ms MT. He engaged one such investigator under the ruse that she had allegedly defrauded him of about $200,000 and he needed her address so his lawyers could pursue her. Ms MT was contacted by a private investigator in around September 2015 and she telephoned the appellant.
  1. [22]
    The following exchanges in evidence in chief occurred in respect of that telephone call:

“And what did you say to Mr Greatbatch over the phone?---I told him that I was going to get a lawyer and that he would be in a lot more trouble.

… Did you ask him to leave you alone?---Yes.

What did he say in response to that?---No, that he was going to hurt me.

Are they the words he - - -?---And find – to find me, and I would pay.”[12] (emphasis added)

  1. [23]
    Ms MT and Mr BK planned to move from Mackay back to the Gold Coast at the end of 2015. Preparatory to that process they had in November moved to the bushland property of Mr BK’s mother, MD, at Kuttabul, a rural district north-west of Mackay.

The home invasion

  1. [24]
    Ms MT had not disclosed where she was living to the appellant. He must have made enquiries and eventually learned of her location. On 27 December 2015 he flew from Adelaide to Mackay via Brisbane, departing Adelaide at 3.09 pm and arriving in Mackay at 9.02 pm. He travelled by hire car to a motel in Mackay, checking in there at 10 pm.
  1. [25]
    The evidence compels the inference that within the next couple of hours he drove nearby to Ms MD’s property at Kuttabul. He approached that property at or soon after midnight, dressed in dark clothing and armed with a 30 centimetre long carving knife.
  1. [26]
    Ms MY and Mr BK were alerted to the possibility of something occurring outside by their dog.  Mr BK went outside and came across the appellant in the yard.
  1. [27]
    Mr BK screamed out, “It’s fucking Jason Greatbatch. He’s here. Everyone get out here. Help me.”[13]  Mr BK lost sight of the appellant and ran to find him.  Mr BK came across the appellant trying to enter the premises through a partly opened sliding door.  In the meantime the mother of Mr BK, Ms MD, had been outside trying to cut off the appellant’s progress towards the house.  She encountered him entering into the house through a partly opened sliding door and struggled with him.  She was outside and he was partly inside.  Mr BK intervened in the struggle with the appellant but was stabbed and fell backwards into a child’s pool.
  1. [28]
    It was admitted at trial that Mr BK sustained a large deep chest laceration over his right lateral chest wall approximately 12 centimetres in length, a laceration to the posterior aspect of the right shoulder approximately eight centimetres in length, and a small right pneumothorax.  The appellant pleaded guilty to wounding Mr BK with intent to disable him.
  1. [29]
    Ms MD tended to her wounded son and the appellant continued his entry into the house. He pleaded guilty to entering the dwelling in the night with intent to commit an indictable offence.
  1. [30]
    The appellant’s attack on Ms MT and BN, discussed in greater detail below, then ensued. After that attack the appellant fled the premises. He departed Mackay by plane at 8.45 that morning, flying back to Adelaide via Brisbane.

The attack on Ms MT and BN

  1. [31]
    Inside the house the appellant encountered Ms MT, who was holding her baby, BN, near an entry.
  1. [32]
    The appellant attacked them with his knife. In the course of that attack Ms MT received a laceration extending from the right shoulder to the armpit into the chest wall, resulting in a collapsed lung, and a laceration of the right upper quadrant, the abdomen area, which penetrated to the back of the abdominal cavity and lacerated the liver, inferior vena cava, pancreatic head and mesenteric vein. The appellant pleaded guilty to doing grievous bodily harm with intent to do grievous bodily harm to Ms MT.
  1. [33]
    BN received no injury from the knife. However, the circumstances involved such a dispersal of Ms MT’s blood, including onto BN, that without close examination it may have appeared BN was bleeding.
  1. [34]
    Ms MT was the sole witness to give evidence about the attack upon her and BN. Her evidence in chief about the attack included these exchanges:

“All right.  You saw Jason that night, didn’t you?---Yes.

The first time you did, where were you when you laid eyeballs on him?---BN in my arms, towards the front door. …

Were you and Jason both in contact with the door at the same time or at different times?---Different – almost the same time, but pretty much, I [realised] I wasn’t going to get through the door, so I turned around.

And when you turned, or after you turned, what happened next?---I turned around with BN in my arms, as he had a knife.  And I turned, holding BN.  And the knife – I seen the knife go past.  And then I knew straight away that, like, thought I was going to get stabbed in the back.  I prepared for that.  I thought - - - …

I just want to ask you about how you were holding BN when you first turned to run away?---I had my left hand under his little bum, and I had his head here.

…  So you’ve got your right hand up against his head - - -?--- The back of his neck and his head.

Which was against your right shoulder?---Yep, but he pushed up about here.  He was on his bum, just under my left hand.

And you’ve got your left hand there, sort of, in the centre of your stomach?---Yep.  And his head was – his back – his stomach was to my stomach.

All right.  So you turned around.  Do you feel anything when you turned around – physically, do you feel anything?---I felt – I turned around and I felt something but I - - -

Where did you feel it on your body?---I just felt a – like, a – in my stomach.  But, like, not – I didn’t – thought straight away that I’d been stabbed, but - - - …

All right.  So you said you were – put it differently; how close were you to the front door when you first felt this?---A couple of steps.

A couple of steps in towards the house?---In towards the house.

All right.  So you feel this blow.  You’re a couple of steps into the house from the front door.  What happened next?---I leant down a little bit, like, holding onto BN, and then I just threw him, because I seen the knife, and I just – it come straight past him.  I turned this way.

…  And when you say this way, you’re turning around to your right?---Yep.  I was in the hallway facing this way, and I turned around, and the knife went straight – like, over – I don’t know if it went – like, it just – I just seen the knife.

All right?---And I just threw BN.

And where did you throw him to?---To the floor.”[14] (emphasis added)

  1. [35]
    Ms MT’s narrative of events thus described the appellant attacking her and BN as soon as he came upon them. It is not clear from the transcript of her evidence whether the appellant’s movement of the knife was directed at either one of them in particular. However, Ms MT’s account of what followed when she threw BN to the ground and shielded her body over him, describes attempts to move the knife around her at BN:

“… So BN’s on the ground.  Tell the jury what you did?---I didn’t know what else to do.  I just jumped over the top of him and put, like, my body over him.  I was on my knees, and I, kind of, squished him in as hard as I could and put my hands over him and waited to be stabbed in the back.  I was hoping the knife didn’t go through and hit him.

Did you do anything to work against the risk the knife would go straight through you and hit him?---I arched my back up really high.

You told the jury that you were on your knees over BN, so obviously - - -?---Like, closed in, really tight. …

So your knees are in contact with the tiles.  Was there any other part of your body that was in contact with the tiles?---I mean, my elbows.  It was like a cocoon. …

Was BN making any sound during any of this?--- [indistinct] banged his head so hard, he was really docile.  Because - - -

I’m sorry to ask you to repeat that, but I didn’t quite catch it?--- [indistinct] when I threw him, he banged his head and his eyes were open and he wasn’t crying.  He was just – just looking at me.

So we’re at the position where you’re over him, he’s not making a noise.  What happened next?---I lent up, lifted my back and just thought that it’s going to go through into BN.  I just wanted some room, just – and then as I lent up, I didn’t get anything.  And the knife come straight under the side and just kept going up and down.

When you say came, what, was it something - - -?---It was over me.  It was over me.

Yes.  And where was he putting the knife?---Into my shoulder, just trying to get – he was trying to get BN’s head.  And I just squeezed as tight as I could with my arms, just hoping that he wasn’t dead.

Pardon me just a moment.  You said that the knife came over your shoulder?---Yeah.

Or you were motioning that, I’m sorry.  How many – how many times did the knife – was the knife thrust at that under area?---Two or three times.  Just – I think it was just getting deeper and deeper, closer towards my stomach.

And you suffered an injury to your shoulder, isn’t that right?---Yes, and to my – punctured my chest and went through my shoulder into my chest.

After these blows that, as you’ve described, went to the space underneath you, did you do anything?---BN didn’t move and everything was warm, and he wasn’t crying.  So I just rolled over to look at him - - -

Could you - - -?--- - - - because I thought he was dead.”[15] (emphasis added)

  1. [36]
    It is apparent from the questioner’s and Ms MT’s words that Ms MT’s oral account was accompanied by gestures making it apparent that the knife was thrust “deeper and deeper” underneath Ms MT, towards BN. This was consistent with the following exchange in the course of cross-examination:

I’d suggest that he never once tried to stab or cut BN?---He came from underneath me with a knife.  I think that’s quite clear.

I stood – I’d suggest to you that he never stood over you whilst you were on the ground at all?---No, that is incorrect.

That he never slid the knife under your body while you were on the ground.  I’d suggest that: do you agree or disagree?---No – no.

And that he – when – where he did stab you was on the other side of the body to where you were holding BN, just to be clear.  That’s what I suggest?---So you suggest that he stabbed me face-on through my shoulder blade – from face-on, not behind.

Whilst he’s facing you, yes?---No.”[16]

  1. [37]
    Ms MT’s account of BN’s bloodied appearance when she rolled off him is an important aspect of the context in which the appellant ended his attack. Her evidence in chief about this phase included these exchanges:

“Did he have anything on him?---BN?  He had blood – blood on his – his face.  He still wasn’t – he was – he was – he just didn’t want to cry.

All right.  Was that the end of the violence?---No.  When I leant over and put my elbows back, and then I got stabbed in here. …

All right.  I won’t ask you to stand up, but you’re pointing there, aren’t you, just under your right breast, more or less the centre of your body.  Is that right?---Yep.

Did you see the defendant’s face at the time of this blow?---He smirked at me.

Did he say anything?---Just – I guess he was happy.  I think he thought BN was dead.  So he just - - - …

Did – did you say anything at this point of things?  Could you speak?---I couldn’t.  I – I wanted to scream for help, but nothing would come out.  I could just watch.  I just watched him run away. …

All right.  You told the jury that when you’d rolled away or off BN, that he had blood in his hair and on the face?---Yeah, along the side of his face and on this part of his hair.

After the attack was over, did you do anything with the blood?---The towel that was at the end of his bed that I used to pu – push under my arm, I wiped the side of his face. …

All right?---And it wasn’t his blood, so he was okay.”[17] (emphasis added)

Consideration

  1. [38]
    In the context of attempted murder the inference of guilt requires proof of an intention to kill; a lesser intention will not suffice. So, for example, in Knight v The Queen,[18] the High Court concluded it was not possible for a jury acting reasonably to have excluded as a rational inference that the discharge of a rifle in a struggle occurred recklessly but without intention to kill.  Cutter v The Queen[19] also illustrates the point.  There a drunk and angry prisoner being removed from a police van stabbed a police officer in the throat.  The High Court concluded the evidence could not exclude the possibility the stabbing was committed in anger and aggression but without an intent to take life.
  1. [39]
    The present case involved obvious deliberation. It was not a case in which the offender was so influenced by liquor, drugs or sudden reaction to the unexpected as to leave doubt about whether he held any intention in behaving as he did. His pleas of guilty to counts 1, 2 and 5 involved concessions he actually held and acted upon harmful intentions towards Mr BK and Ms MT and had formed an intention to commit an indictable offence by the time he entered the house. Further, as soon as the appellant encountered Ms MT holding BN he attacked them with the knife. The bare fact he commenced that knife attack provides powerful evidence of an intention to use the knife to at least inflict serious injury upon either Ms MT and or BN. But of itself that does not help discern whether BN was a specific target of his actions and whether he intended to kill BN by his actions.
  1. [40]
    The evidence of the appellant’s threats to hurt Ms MT and make her pay do not help discern those matters either. Such background evidence showed the appellant was motivated to cause significant harm to Ms MT. Killing her baby, whose conception and birth coincided with the appellant’s transition from romantic to vengeful obsession, would obviously cause harm to Ms MT. But so too would seriously injuring Ms MT.  The appellant’s threats are intractably neutral as to whether the appellant intended to physically target Ms MT or BN or both of them.
  1. [41]
    This exposes the determinative importance of what if any relevant inferences may be drawn from the nature of the physical attack which ensued upon Ms MT and BN. The critical physical events occurred at a time when Ms MT was protectively shielding her baby, BN, with her body and the appellant was repeatedly moving his knife in a direction past her towards BN.  The case turned upon whether it could be inferred from those movements that the knife movements were intentionally directed at BN and were done intending to kill BN (“the guilty inference”).  If they were, that would satisfy the element of intention.  It would also satisfy the elements, required of any attempt to commit an offence, that the appellant put his intention to kill into execution by means adapted to its fulfilment and manifested his intention to kill by some overt act.[20]
  1. [42]
    The most obvious competing innocent inferences were:
  1. (1)
    the appellant movements of the knife were intended to be directed at Ms MT, not BN; or
  1. (2)
    even if the knife movements were intentionally directed at BN, the appellant did not intend to make actual contact with the knife upon BN’s body; or
  1. (3)
    even if he did intend such contact, the appellant was reckless as to the consequences or only intended to injure BN, not kill him (“the innocent inferences”).
  1. [43]
    The appellant places particular emphasis upon the fact that when Ms MT eventually rolled away from her protective positioning above BN, the appellant did not stab BN. Rather, he stabbed her and fled. If the appellant had earlier intended to kill BN the point is made that this was his opportunity to make sure of it. The fact he did not proceed to stab BN is said to detract from the guilty inference and support the innocent inferences.
  1. [44]
    Two considerations collectively counter that argument. Firstly, it is to be borne in mind that the appellant’s act of attempted murder involved his movements of the knife past Ms MT towards BN when he was protectively cocooned beneath Ms MT.  It is the appellant’s intention at that time which matters.  It may be that intention subsided and the focus of the appellant’s intention shifted when Ms MT rolled from BN and was facing him.
  1. [45]
    Secondly, when Ms MT rolled from her protective position, BN was silent, stationary and there was blood on his face and hair. In fact, BN was unharmed, save for possibly being dazed from being thrown to the tiled floor. The blood on him had likely flowed from the penetrative injury between Ms MT’s shoulder and armpit. However, it is quite plausible the appellant mistakenly thought he had mortally wounded BN. Such an error would also explain why, if the appellant had earlier intended to kill BN, he did not then continue to attack BN. The prospect of him making such an error is heightened by the probability that when the appellant was earlier moving the knife towards BN, around Ms MT, his line of vision to BN would have been at least partly obscured by Ms MT’s protective positioning.
  1. [46]
    Each of those considerations herald the central importance in this case of Ms MT’s evidence of how, as she protectively positioned herself above BN, the appellant repeatedly moved the knife past her in BN’s direction.
  1. [47]
    If the appellant was at that point trying to harm Ms MT, rather than BN, he had the perfect opportunity to do so. She deliberately exposed her back to the appellant in trying to protect BN. Rather than stabbing her in the back, the appellant moved his knife around her towards BN. Furthermore, when he did so, the appellant repeatedly moved the knife. This was inconsistent with him accidentally missing Ms MT with the knife and bespoke an intention to move the knife at BN.  These facts exclude the inference that at this time Ms MT, rather than BN, was the target.
  1. [48]
    It must of course be remembered the knife movements did not actually inflict injury on BN. However, the parties were at close quarters. Ms MT’s arms and knees were protectively against BN. Once the knife reached past Ms MT’s upper body there was little distance to travel to reach BN. It appears to have been a matter of good luck, probably in combination with the arching of Ms MT’s back, that the appellant did not hurt BN. The obvious conclusion flowing from the appellant’s movements of the knife is that by those movements he was trying to stab or cut the knife into BN. That conclusion excludes the hypothesis he did not intend to make actual contact with the knife upon BN’s body.
  1. [49]
    Given Ms MT’s evidence compels the inference the appellant’s knife movements were intentionally directed at BN, with the intention of cutting or stabbing BN with the knife, it remains to consider whether by those intentional actions he was intending to kill BN.
  1. [50]
    Ms MT’s evidence was that at this time the appellant was “trying to get BN’s head”. Such evidence involves what appears, in isolation, to be an expression of opinion. However, in context, it was an implicit reference by a lay person to the part of BN’s body which the knife was moving towards. That context obviously included gestures. Even without the advantage of seeing those gestures this Court is equipped with ample information in support of the guilty inference.  That the appellant had gone to extraordinary and deliberative lengths to be in such a position, attacking BN intending to cut or stab him, is inconsistent with mere recklessness as to the consequences of his actions towards BN.  Further, BN was only a 10 month old baby and the knife was 30 centimetres long.  The notion that, in the circumstances described, the appellant was deploying such a large knife towards such a small human being merely intending to injure him is implausible.  In a similar vein, the apparent vigour of the appellant’s movements does not suggest the subtlety of precision of movement of someone who was merely trying to inflict a non-fatal injury.  The collective circumstances, as described by Ms MT, bespeak an intention to kill BN.
  1. [51]
    Ms MT’s evidence was of determinative importance. Her account was inherently plausible. She maintained her account when tested in cross-examination. A contrary account was put to her (apparently on instruction), rejected and never advanced as evidence from the appellant. A degree of prior inconsistency in her statements was exposed but it did not compel the conclusion her account was unreliable. Considered overall her evidence appears to have been of sufficient quality that a jury acting reasonably could readily have accepted it as credible and reliable. For reasons explained above, her evidence was well able to sustain the guilty inference and exclude the innocent inferences beyond a reasonable doubt.
  1. [52]
    On consideration of the whole of the evidence I am satisfied it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of attempting to kill BN. Ground 1 must therefore fail.

Ground 2 Miscarriage of justice because of failure to exclude exhibits 12 and 13

  1. [53]
    Ground 2 complains that two photographic exhibits, objected to as prejudicial should have been excluded and that their admission into evidence occasioned a miscarriage of justice.
  1. [54]
    The two photographs in question depict bloodstaining on the floor where the appellant perpetrated his attack upon Ms MT and BN. They are said by the appellant to be close ups but may equally be described as medium shots. Their content is not inherently gratuitous. Two more general shots, incorporating the same view, were not objected to. The appellant accepts the two challenged photographs had some probative value but that the two general shots delivered the same probative value with less prejudicial impact.
  1. [55]
    The allegedly prejudicial effect of the two challenged photographs could only arise from the fact they depicted bloodstaining, yet it was unavoidably apparent from other evidence that copious amounts of blood had been shed because of the appellant’s attack. That other evidence included the other photographs. It also included the relevant fact that blood had spilled onto BN, likely conveying the mistaken impression he had been mortally injured.
  1. [56]
    Further to those various considerations the allegedly prejudicial impact of the two challenged photographs paled in comparison to the appalling components of the appellant’s conduct to which he admitted his guilt in front of the jury.
  1. [57]
    A trial judge’s decision as to whether the prejudicial effect of a potential exhibit so outweighs its probative value that it ought be excluded involves an exercise of discretion in which an appellate court will not interfere unless error is apparent.[21]  No error has been identified.  There is no substance to ground 2.

Orders

  1. [58]
    Both grounds of appeal having failed the appeal against conviction should be dismissed.
  1. [59]
    The appellant also applied for leave to appeal his sentence but only sought to pursue the application in the event his appeal against the attempted murder conviction was successful.
  1. [60]
    I would order:
  1. Appeal against conviction dismissed.
  1. Application for leave to appeal sentence refused.

Footnotes

[1] SKA v The Queen (2011) 243 CLR 400, 409.

[2]Morris v The Queen (1987) 163 CLR 454, 474; MFA v The Queen (2002) 213 CLR 606, 615; GAX v The Queen (2017) 91 ALJR 698, 702.

[3] Shepherd v The Queen (1990) 170 CLR 573.

[4]  AR 162 LL8-11.

[5]  AR 158 LL7-9.

[6]  AR 157 LL24-31.

[7]  AR 161 LL3-4.

[8]  AR 161 LL10-13.

[9]  AR 161 L45.

[10]  AR 162 L36 – AR 163 L39.

[11]  AR 164 L25 – AR 165 L5.

[12]  AR 165 LL35-42.

[13]  AR 134 L42.

[14]  AR 169 L38-171 L33.

[15]  AR 172 L1 – AR 173 L5.

[16]  AR 186 LL17-31.

[17]  AR 173 L7 – AR 175 L20.

[18]  (1992) 175 CLR 495.

[19]  (1997) 71 ALJR 638.

[20]  See s 4 Criminal Code (Qld) and R v O’Neill [1996] 2 Qd R 326, 432.

[21] House v The King (1936) 55 CLR 499, 504-505.

Close

Editorial Notes

  • Published Case Name:

    R v Greatbatch

  • Shortened Case Name:

    R v Greatbatch

  • MNC:

    [2019] QCA 240

  • Court:

    QCA

  • Judge(s):

    Morrison JA, Mullins AJA, Henry J

  • Date:

    05 Nov 2019

Litigation History

Event Citation or File Date Notes
Primary Judgment SC58/18 (No Citation) 11 Oct 2018 Date of Conviction (Crow J).
Primary Judgment SC58/18 (No Citation) 12 Oct 2018 Date of Sentence (Crow J).
Appeal Determined (QCA) [2019] QCA 240 05 Nov 2019 Appeal against conviction dismissed; application for leave to appeal against sentence refused: Morrison JA and Mullins AJA and Henry J.

Appeal Status

{solid} Appeal Determined (QCA)