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R v Ridgeway

 

[2020] QCA 38

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

R v Ridgeway [2020] QCA 38

PARTIES:

R
v
RIDGEWAY, Robert Wayne
(appellant)

FILE NO/S:

CA No 170 of 2018

SC No 878 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Conviction: 25 June 2018 (Martin J)

DELIVERED ON:

10 March 2020

DELIVERED AT:

Brisbane

HEARING DATE:

27 August 2019

JUDGES:

Sofronoff P and Philippides JA and Flanagan J

ORDER:

The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of one count of attempted murder, with the aggravating circumstance of being a domestic violence offence – where the appellant was sentenced to ten years’ imprisonment with parole eligibility after eight years – where the appellant attempted to murder his wife by attaching a bottle of nitrogen to a hose which was then connected to the inside of the caravan where she lay sleeping – where the contraption was ineffective to kill – where the appellant submits that there was evidence that the appellant must have appreciated that the apparatus could not have killed his wife given his scientific background – where the appellant submits that his wife had failed to exclude the hypothesis that she had constructed the apparatus herself – whether circumstantial evidence permitted the sole conclusion that the appellant intended to kill the complainant – whether the jury’s verdict was unreasonable or insupportable having regard to the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant submits that the trial judge failed to direct the jury than an essential step in the chain of reasoning was that the appellant believed that introducing nitrogen into the caravan would kill his wife – where no redirection was sought – where the appellant fails to identify the existence of any miscarriage of justice in their submissions – whether the trial judge’s directions about proof of the appellant’s intention constitute a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant in his police interview denied knowledge of the contraption – where the appellant at trial argued that he had constructed the contraption as a drainage system – where the appellant submits that there is a hypothesis consistent with innocence to explain both pieces of evidence being that the appellant had constructed the contraption to harass his wife – where the Crown had previously charged the appellant with an alternative count of administering a noxious thing, namely nitrogen, with intent to injure or annoy his wife – where there was a directed verdict of not guilty on this charge – where the appellant did not advance such a theory at the trial and there was no evidence to support it – where there was an advantage to the appellant in not raising this theory at trial – where the trial judge directed the jury about post-offence conduct and consciousness of guilt – whether the trial judge’s direction amounted to a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – OTHER IRREGULARITIES – where the appellant submits that the trial judge did not distinguish attempted murder from other offending based on the same physical acts but with different mental elements – where the appellant submits that such a distinction may explain the post-offence conduct – where the appellant submits that the post-offence conduct may indicate consciousness of guilt of the offence of common assault by the application of gas, disabling in order to commit an indictable offence or an attempt to stupefy in order to commit an indictable offence – whether the trial judge ought to have directed the jury about a hypothesis not put to it for tactical reasons, which is directly contrary to the evidence that the accused gave at the trial and which is directly contrary to the way in which the accused’s counsel conducted the defence – whether the trial judge’s failure to direct the jury regarding post-offence conduct constitutes a miscarriage of justice

Criminal Code (Qld), s 4, s 306

Britten v Alpogut [1987] VR 929; [1989] VicRep 66, cited

De Gruchy v The Queen (2002) 211 CLR 85; [2002] HCA 33, cited

Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40, cited

Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63, cited

Haughton v Smith [1975] AC 476; [1973] UKHL 4, cited

R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, cited

R v Collingridge (1976) 16 SASR 117, cited

R v  MAI (1992) 26 NSWLR 371; (1992) 60 A Crim R 49, cited

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

R v Trebeck [2018] QCA 183, cited

R v White [1910] 2 KB 124; (1910) 4 Cr App R 257, cited

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

TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, cited

Zaburoni v The Queen (2016) 256 CLR 482; [2016] HCA 12, cited

COUNSEL:

B J Power for the appellant

C Heaton QC for the respondent

SOLICITORS:

Craven Lawyers for the appellant

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    SOFRONOFF P:  Early in the morning of 5 July 2016 Pepita Ridgeway was sleeping in a caravan that was parked next to her house and was awoken by a gurgling sound.  Ms Ridgeway could not identify the source of the sound but thought it might have come from the caravan’s water pump.  She went outside and looked underneath the caravan where she saw the hose that ran from the sink inside the caravan but it was not attached to anything.  She went back inside the caravan and lifted the mattress she had been sleeping on.  In the space underneath the mattress there was an ordinary green garden hose that somebody had attached to the plywood bed in the caravan.  The hose had been fixed to the side wall of the bedding structure by zip ties screwed to the plywood and was wrapped in some kind of fabric.  Black duct tape held it in place.  This apparatus was underneath Ms Ridgeway’s head as she lay sleeping and it was the source of the gurgling noise that had woken her.
  2. [2]
    She went outside and inspected the rear of the caravan and, underneath the caravan, she could see that the green garden hose came out through a hole in the floor.  Ms Ridgeway followed the hose from the caravan around a rainwater tank towards a carport on the property.  There she said that she found that the hose was connected by a smaller diameter blue hose to a gas bottle.  She could hear the same gurgling and hissing sound coming from the cylinder that she had heard inside the caravan.  She turned the tap on the cylinder and the sound stopped.
  3. [3]
    In what she described as a frantic state, Ms Ridgeway went immediately to the house next door where her brother, Sasha Nicholls, and his wife, Tanya Nicholls, listened to her account.  The police were called.  While waiting for their arrival, they returned to inspect the caravan.  Mr Nicholls said that he went inside the caravan and examined the hose apparatus.  He pulled a part of the duct tape away and saw that the hose was wrapped in a black fabric.  He went outside and followed the hose from where it came out of the caravan to its end point near the carport.  He saw the large cylinder with a regulator on top of it and a blue hose attached to the cylinder.  He said that the cylinder was labelled as containing nitrous oxide.  This was incorrect.  It contained nitrogen.  He followed the hose back to the caravan.  Ms Nicholls used her mobile phone and took a photograph of the base of the caravan where the hose was attached.  The photograph shows a blue hose attached to the green garden hose.
  4. [4]
    Police then arrived and photographs were taken showing the apparatus in detail.  They show a green garden hose rising from an opening in the floor of the caravan, into the base of the bed upon which Ms Ridgeway had been sleeping.  There were ten small holes drilled into the wooden surface upon which the mattress rested.  The length of hose situated under the base of the bed has itself been randomly perforated along its length and around its circumference with multiple holes.  The whole rig was apt to convey gas from the cylinder to the interior of the caravan and then to disperse it through the holes in the green garden hose and into the interior of the caravan itself through the holes drilled into the base of the bed.
  5. [5]
    By the time the police arrived the cylinder was no longer connected to the garden hose and the short length of hose that entered the caravan had been disconnected from its smaller connecting blue hose that led to the garden hose.  A photograph taken by police later that morning showed the garden hose between the caravan and the carport, one end lying unattached.  Nearby a short piece of blue hose is visible on the ground.  That hose was seen by one of the police witnesses and he observed that its diameter was of a size that could be inserted into the opening of the green garden hose.  Who had disconnected the apparatus in this way was not explained.
  6. [6]
    Police took the appellant, Ms Ridgeway’s husband, to the Noosa Police Station where he was interviewed.  Senior Constable Harris promptly and candidly identified what it was that interested him:

“Okay.  Robert, um  I wish to ask you some questions in relation to a complaint we’re investigating of a nature where um some hoses were attached to a caravan and where all that gas was emitting into that caravan.  So that’s the investigation I’m um conducting at the moment in relation to that matter and I wanna ask you some questions in relation to that.  Do you understand that?”

  1. [7]
    The appellant seemed eager to be helpful.  He said:

“I would be very pleased to be able to do that, yes.”

  1. [8]
    After the usual warnings were given, Senior Constable Harris then repeated the subject in which he was interested.  The following exchange took place:

“SCON HARRIS:  Police attended your ah address in relation to a complaint made to police of the nature of the, the gas into the caravan um on your property.

RIDGEWAY:  Okay.

SCON HARRIS:  Um and police attended there and they’ve located yourself um and basically they’ve had a conversation with you and you were placed in the rear of the police car.  Is that the case?

RIDGEWAY:  Um yes but I have been told very told um and I have a disadvantage of not seeing what they’re talking about.

SCON HARRIS:  Yep.

RIDGEWAY:  The only thing I did get the advantage of seeing was they said there was a hose going there and I didn’t see any hose going there.

SCON HARRIS:  Yep.

RIDGEWAY:  And they said there was ah gas coming from-, maybe from the stove but how?  It’s already hardwired.  I don’t get that.

SCON HARRIS:  Okay.

RIDGEWAY:  And the other thing is then they said that there’s gas that could’ve been in that other bottle and I’m thinking no, it really couldn’t ‘cause that’s harmless.

SCON HARRIS:  Yep.

RIDGEWAY:  You know and not only that, it’s too small of an amount--

SCON HARRIS:  We’ll get to that --

RIDGEWAY:  To be a--

SCON HARRIS:  In a second with you.

RIDGEWAY:  Sorry.  Yeah I--

SCON HARRIS:  That’s alright--

RIDGEWAY:  They’re, they’re, they’re saying there’s a crime scene but I’m thinking what’s the crime?”

  1. [9]
    This was the first occasion of many during the interview when the appellant asserted that the gas inside that cylinder was “harmless”.  The reference to the “other bottle” must have been a reference to the gas cylinder to which the hose had been attached.
  2. [10]
    Before pursuing the interview further, Senior Constable Harris explained to the appellant that he was not under arrest and that he was at liberty to leave immediately.  The appellant responded:

“RIDGEWAY:  But you know I, I can’t do that.

SCON HARRIS:  Yep.

RIDGEWAY:  I, I really would like to be heard.

SCON HARRIS:  Yep.”

  1. [11]
    The appellant was then asked about his “knowledge or involvement” in relation to the hose and the gas cylinder.  He responded as follows:

“RIDGEWAY:  It’s completely harmless.  I’ve been using it all my life.  Um [INDISTINCT] where we work we, we seal all of your microwave circuitry in that so that there’s no corrosion or anything and it cools it as well.  It’s a good thermal conductor.  Um it’s really harmless and there’s no crime you know.  How can something harmless be a threat to anyone?  It isn’t you know it’s just, it’s just somebody saying that it is and that’s what I see and not only that but how can a quantity like that be harmless to anybody in, in a tr-, in a c, trailer?  That thing’s too big to be harmful.  I’ve worked in smaller office that that with you know worse than that.  I just know it’s, it’s never gonna do anything.  So [INDISTINCT].

SCON HARRIS:  So what are you actually referring--

RIDGEWAY:  [INDISTINCT]

SCON HARRIS:  What are you actually referring to when you talk?

RIDGEWAY:  The nitrogen gas is just--

SCON HARRIS:  Okay.

RIDGEWAY:  Harmless.  It’s just--

SCON HARRIS:  Okay.

RIDGEWAY:  It’s, it’s-, that’s why it’s useful.  You know it’s, it’s clean, it’s dry, it’s harmless, it’s um safe to work with.  Um what could happen if you blew it in some place?  Well it would cool it down I guess, like that’s about it you know.  I don’t see it.  I can’t see what they’re saying you know.  I, I, I can’t see what the fuss is.  I really can’t.  But um what I’m trying to figure out is um who does say that and who, who is amateurish enough to think that?  You know, who is that?  Because I know it isn’t you know and ask any scientist and they’ll tell ya what?  You know we work with that every day you know it’s like--”

  1. [12]
    The appellant told Senior Constable Harris that he used the nitrogen in the cylinder for “cooling and … cleaning, blowing off things”.  He said that the gas was “completely humidity free and dust free and if you blow something off with it, say an optical lens or something … or a microwave lens you know that it’s clean”.  He said that it was also “handy when I cool things”.
  2. [13]
    Senior Constable Harris asked who owned the cylinder.  The appellant explained that he rented the cylinder from “BOC”, which is a company that furnishes various gases in cylinders.  He said, “I’ve been doing this for a while … I’ve been renting these things for a while … I do this sort of thing all the time”.
  3. [14]
    He said that he had refilled the cylinder “two days ago maybe” and that he had refilled cylinders in that way “I think maybe three or four” times.
  4. [15]
    Senior Constable Harris returned to the hose that had been discovered in the caravan.  There was the following exchange:

“SCON HARRIS:  And in relation to um the caravan, inside the caravan I’ve seen some garden hose with some blue hose and some gaffer tape coming up underneath the caravan.  What can you tell me about that?

RIDGEWAY:  Well the blue hose is from the water supply I believe and the garden hose ah I think comes-, is one of the outlets-, I’m not a hundred percent sure um I’ve only just blown out the, the plumbing once and that’s really all I know about it.  Um you know blasted it with some air and that’s it, that’s all I know.  You know I do know the black hose goes under there and it doesn’t stay very well.

SCON HARRIS:  Which hose sorry?

RIDGEWAY:  There’s a black hose for--

SCON HARRIS:  Okay.

RIDGEWAY:  An outlet--

SCON HARRIS:  Okay.

RIDGEWAY:  And it doesn’t stay in place very well but those--

SCON HARRIS:  Okay.

RIDGEWAY:  Are the ones that ah I know about.

SCON HARRIS:  Okay.

RIDGEWAY:  So I mean there’s, there’s a lot I don’t know ‘cause it’s really it’s, it’s her hobby.  It’s not mine.

SCON HARRIS:  Okay.

RIDGEWAY:  Um but like I don’t know where the twelve volt battery’s supposed to go yet.  I can’t figure it out, so, so honestly I really haven’t spent that much time there.

SCON HARRIS:  Okay.

RIDGEWAY:  Um we have-, I, I, I’ve tried to help her out in some way like I, I spent time putting things in there for her.

SCON HARRIS:  Mmhmm.

RIDGEWAY:  Um like the electric blanket and um cleaned a few things while she was away and whatever and just tried to make sure feel like you know I care about her hobby.  Quite honestly the last place we went camping was awful.

SCON HARRIS:  So in relation to the hose, there’s a hose going um which lead from the gas bottle at the back of the property directly towards the caravan at the side of the house and the hose goes up underneath the caravan and it’s, it’s attached there with some black tape.  Do you have any knowledge of that?

RIDGEWAY:  I didn’t see any hose attached and I don’t think there was.

SCON HARRIS:  Yep.

RIDGEWAY:  I, I really don’t know that I believe that.  I mean well who said that?”

  1. [16]
    Senior Constable Wall, who was the other police officer present at the interview, told the appellant that somebody appears to have drilled up through the floor of the caravan and inserted a green garden hose itself into “the sort of the seat well” and the garden hose led to the nitrogen gas cylinder.  He explained that it appeared as though somebody was trying to gas someone with the gas inside the cylinder and that the structure was “fabricated to look like … you turn the bottle on and gas into the caravan”.
  2. [17]
    The appellant replied that he had not seen what was being described.
  3. [18]
    There was then the following exchange:

“SCON WALL:  When, when was the last time you were in the caravan?

RIDGEWAY:  Well I probably cleaned it um two days ago.

SCON WALL:  Yep.

RIDGEWAY:  Yep.  But she would’ve been in there since then, you know.

SCON WALL:  Yep.”

  1. [19]
    The appellant acknowledged that he had used the green garden hose found lying on the ground near the caravan but only to water plants.  He protested:

“I don’t know what anybody’s talking about when they say something’s connected up and I don’t believe it.”

  1. [20]
    He volunteered that they had acquired the caravan as a second-hand caravan and so he didn’t “know what else is done or isn’t done and I really don’t even know that much about it”.
  2. [21]
    The appellant was then asked about the black duct tape that was found attaching the hose to the underneath of the bed structure.  Senior Constable Harris asked the appellant whether he owned any such tape.  The appellant said that he did.  He said that he had used it recently to repair a phone line that had been damaged.  Senior Constable Harris then asked the appellant:

“SCON HARRIS:  Okay.  Anyway so in relation to you um having any involvement you’re saying you weren’t involved in, in the hose and it being connected to anything and in relation to an allegation that the those was connected to the gas and going into the caravan?”

  1. [22]
    The appellant denied any involvement and said, “that wouldn’t make any sense at all to me”.
  2. [23]
    Once again he said that nitrogen gas was “not going to hurt anybody”.  He volunteered to sit inside the caravan and have somebody release nitrogen into it.  He said, “it’s just a nothing”.
  3. [24]
    Later in the interview the appellant said that he had moved from the United States with his family at his wife’s request.  That meant that he had to quit his job.  He found it impossible to find a job in his field living on the Sunshine Coast.  He was working at home, he said, setting up “an antenna measure laboratory”.  He was working “on an inexpensive radar for third world countries um using really cheap magnetrons”.  He explained that there was friction between him and his wife about money.
  4. [25]
    He said that his wife had “threatened” him.  She had told him that she would get him “out of here”.  He said:

“That’s what she said to me and I’m saying really?  ‘Cause I know I don’t have to go.  You know I live there, this is my address.  I’m not leaving.”

  1. [26]
    He said that his wife had told him those things about two weeks ago.  She was complaining to him that she had no money and that she wanted a divorce.  He had suggested that they should have marital counselling as a first step but she had told him that she was going to see a lawyer.
  2. [27]
    The police officers asked the appellant whether he knew how heavy the cylinder might be:

“RIDGEWAY:  How heavy is it?

SCON WALL:  Yeah.

RIDGEWAY:  Ah, it’s not very easy but it’s okay.  I mean if you don’t have to go too far it’s okay.

SCON WALL:  Mmm.

RIDGEWAY:  Ah or you use a trolley.  Um it’s, it’s probably twenty kilos.

SCON WALL:  Yeah.

RIDGEWAY:  Not very heavy.

SCON WALL:  And how, how--

RIDGEWAY:  But I don’t, I don’t like to lift things like that.

SCON WALL:  Yeah.

RIDGEWAY:  Ah because I ah well I just can’t do very with that.”

  1. [28]
    That interview took place on 5 July 2016.
  2. [29]
    Later, a chemical engineer, Mr Billy Chan, who was employed by BOC which is the company that had supplied the cylinder to the appellant, performed some experiments to determine what would happen to the atmosphere inside the caravan if nitrogen were to be released into it from a cylinder of the size found on the property.  He explained that 20.9 per cent of normal air consists of oxygen and much of the rest of the Earth’s atmosphere is nitrogen.  Releasing nitrogen from the cylinder into the caravan would displace normal air with pure nitrogen.  The percentage of oxygen in the caravan would slowly reduce.  The pressure gauge on the cylinder found at the property showed that the original quantity of nitrogen inside the cylinder had fallen from 163 bar to 115 bar.  Mr Chan conducted an experiment to test the reduction in the percentage of oxygen inside the caravan if the same quantity of nitrogen was released into it.  He found that the oxygen level would fall from 20.9 per cent to about 19.4 per cent.  According to the relevant Australian Standard a reduction of the percentage of oxygen in air to 19.5 percent is regarded as the “trigger point for people to leave the space”.
  3. [30]
    Mr Chan conducted another experiment to see what would happen if the whole of the contents of the cylinder were released into the caravan.  He found that the level of oxygen would come down to 15.64 per cent.
  4. [31]
    Mr Chan said that nitrogen can constitute a hazard in the workplace because of this potential to deplete the oxygen level in a confined space.  He said that incidents in industrial settings have resulted in fatalities.  Gas monitors are used in such places because nitrogen is odourless and colourless.
  5. [32]
    Mr Chan also explained that, for cleaning purposes, compressed air is generally used rather than compressed nitrogen.  A small air compressor can produce compressed air for this purpose but nitrogen has to be purchased and replenished.  He also explained that, in his experience, nitrogen offered “very minimal effect” as a coolant if it is just blown across a surface.  He said that if cooling is required using a compressed gas, then it is necessary to apply “a sharp change of pressure” but that “doesn’t apply to what we have seen in this case”.
  6. [33]
    Mr Chan said that “laser mix” was an expression used to describe a mixture of nitrogen and carbon dioxide.  Such a mixture has to be prepared with precision  and specialised equipment is necessary to achieve the right mix.  The mixture is used as part of “plasma laser cutting machines”.  The nitrogen cylinder at the appellant’s property was a separate and distinct product from the kind of nitrogen and carbon dioxide laser mix required for laser cutting.
  7. [34]
    Dr Adam Griffin is the Director of the Clinical Forensic Medicine Unit of Queensland Health.  He said that the inhalation of air containing nitrogen at sea level pressure causes no symptoms.  A problem arises when nitrogen excludes oxygen.  Successive reductions in the level of oxygen causes increased respiratory rate in humans, a reduction in fine motor control, a reduction in concentration, drowsiness, headaches, loss of consciousness and, ultimately, death.
  8. [35]
    Dr Griffin said that a reduction of the level of oxygen to 16.8 per cent of the atmosphere for a brief exposure would result in an increased breathing rate.  Exposure for a sustained period may result in more symptoms as time goes on.  An oxygen level in the order of 19 per cent would not be likely to result in death.  Depletion in oxygen to 10 or 12 per cent would cause more serious effects.  There would be a high risk of unconsciousness.
  9. [36]
    Dr Griffin said:

“… when we were talking previously around the examples of the 10 per cent oxygen level, the brain needs a high level of oxygen just for normal functioning.  So we know that those who do not have adequate oxygen delivery to their brain for periods of four minutes have irreversible brain damage … and rarely recover.  So the – if we’re looking at sustained periods of – of low-oxygen states, we actually start having other metabolic processes actually coming into play that are also harmful to the body.  So it’s difficult to actually put precision on time.”

  1. [37]
    There was evidence that the appellant had first purchased a cylinder of nitrogen from BOC on 27 June 2016.  He told the BOC representative that he needed the gas for welding.
  2. [38]
    As has been said, in his police interview, the appellant had acknowledged that his relationship with his wife was in difficulties.  He said that they had an angry argument on 17 June 2016 concerning their daughter’s behaviour.  According to Ms Ridgeway’s evidence, that argument culminated with the appellant pushing her against a wall and holding her there, while threatening to punch her with his right fist.  As a result of that she called the Domestic Violence Hotline and after that incident she began to sleep in the caravan.  However, according to the appellant it was Ms Ridgeway who struck him, fracturing his spectacles and injuring his ear.
  3. [39]
    The Domestic Violence Hotline advised Ms Ridgeway to consult a solicitor about a divorce and she arranged for an appointment with lawyers for 4 July 2016.  On 1 July 2016 she sent her husband an email that said:

“Hi, as you know, I have realised that we can no longer be together or live together.  I am visiting lawyers on Tuesday to talk about our divorce.  There will be a time when you will need to leave.  You know I can’t leave with Mum and the horses here and the kids will probably feel more comfortable if you left as they are used to me being around.  It will be easier if you start planning your departure now and not be shocked about having to do it later.”

  1. [40]
    On the following morning, which was a Saturday, the appellant told his wife that he wanted to “try and work it out”.  Ms Ridgeway said that she would think about it.  Nevertheless, on 4 July 2016 she kept her appointment with a lawyer to discuss getting a divorce.
  2. [41]
    In the meantime, as the evidence showed, on Friday, 1 July and on Saturday, 2 July 2016 the appellant used his laptop computer to search the internet for “major hazards” in connection with the use of nitrogen, including by suffocation.  He also searched for “nitrogen”, “nitrous”, “asphyxiation” and “suicide”.  He enquired into “aggressive female spouse causes” and “stroke in female spouse causes of personality change”.
  3. [42]
    On the same day that his wife consulted a solicitor about a divorce, the appellant went to BOC to return an empty nitrogen cylinder.  He took another one.  This cylinder had double the capacity of the cylinder that he had returned and it was this larger cylinder that Ms Ridgeway found connected by a hose to the interior of the caravan.
  4. [43]
    Mr Webster, the employee of BOC who had supplied the appellant with the large cylinder on 4 July 2016, saw him again on Thursday, 7 July.  The appellant had come to ask Mr Webster to give him a fresh invoice for the purchase of gas on 4 July.  The receipt issued on that day had described the purchased item as “Nitrogen, Indus, Dry, E size”.  The appellant asked Mr Webster to issue a new invoice changing the description of the item so that it read “Clean, Dry, Nitrogen also a component of it”.  Mr Webster replied “No.  Nitrogen is nitrogen”.
  5. [44]
    Police obtained evidence that the appellant’s fingerprints and DNA were on the duct tape that secured the hose to the underneath of the bed in the caravan.  By the time of trial, therefore, it was no longer possible for the appellant to deny his involvement in the construction of the contraption, as he had done at the first interview with police.
  6. [45]
    When the appellant gave evidence at his trial, he no longer denied knowledge about the hose that had been taped and screwed onto the base of the bed.  He was no longer asserting that he had not “spent that much time there”.  He abandoned his denial that he had seen any hose attached to parts of the caravan.  He also abandoned his position that the last time he had been in the caravan was when he had “probably cleaned it … two days ago”.  He now admitted his responsibility for building the device.  He said it was a drain.
  7. [46]
    His counsel opened his evidence as follows:

“[I]n early April 2016, Robert Ridgeway built a drain.  He built it after the rainy camping trip to Inskip Point.  He built the drain out of things he had to hand around the house.  He put the drain in the caravan under the head of the single bed.  He will tell you that he observed that the drain worked.  It directed water away from the head of the single bed and observed it dripping out the end of the drain, which was protruding through the floor of the caravan …

His evidence will be that the drain was working well, but he had observed that the duct tape had started to droop as a result of the heat that would build up in the caravan during the day.  His evidence will be it was an old caravan.  It wasn’t well insulted.  So around the 2nd of July, he went to Bunnings.  He bought some cable zippy-ties and some new black tape and he fixed the drain.  On the second occasion with the drain he affixed it to the wall with the cable zippy-ties and he placed new duct tape around it.  Members of the jury, his evidence will be very clear.  The green garden hose and black duct tape apparatus was a drain.  It was not a gas dispersal system.”

  1. [47]
    The appellant said that his wife would not have allowed him to fix the roof of the caravan to stop the leak.  He did not explain how a hose that had been punched full of holes and was wrapped in cloth fabric could work as a drain.
  2. [48]
    The appellant also abandoned his claim that nitrogen was “harmless”.  He did not deny that he had searched the internet in relation to nitrogen as an asphyxiate.  He admitted that he had learned that “nine percent effective oxygen was dangerous” and that at that low concentration the atmosphere was “beginning to be dangerous, fatal”.  He repeated his claim that he wanted to use the nitrogen for plasma welding but did not address the evidence that Mr Chan had given that nitrogen alone was useless for that purpose.  Under cross-examination he admitted that he knew on 5 July 2016 that there were hazards associated with the use of both nitrogen and liquid nitrogen.  He knew of the risk of nitrogen in high volumes removing or displacing a volume of air.  He admitted that he had heard of workplace accidents involving nitrogen.  He admitted that the label on the very cylinder he had purchased showed a warning about nitrogen as an asphyxiate.
  3. [49]
    Having told police that he had put the cylinder “in the back of the parking lot because it’s too heavy to move” and that he had “no mobility, you know.  My joints are bad, and, basically, I could sit at a desk”, he now claimed that he used to move the gas cylinder into his work room whenever he used it.  He said:

“All I have to do is wheel it up there, and then my hands, I lift it up and over.  And I’m really not that bad.  I just – perhaps I over-exaggerated it.  I mean, I can do chin-ups …”

  1. [50]
    He explained that his difficulties in the police interview were because of the sleeping pills he had taken the night before and that he was still felling “very groggy” when being questioned.  During the interview with police the appellant had referred to taking arthritis medicine, blood pressure medicine, cholesterol medicine and “lots and lots of vitamins” but he had not mentioned sleeping pills.  When asked by police whether he felt affected by the medicine that he took for a heart condition he said, “I’m used to it.”  He said that the answer that he gave “was unfortunately not perfect”.
  2. [51]
    The jury retired to consider its verdict at 11.53 am on 25 June 2018 and returned with a guilty verdict at 2.40 pm.
  3. [52]
    Ground one of the appellant’s amended notice of appeal is that the guilty verdict was unreasonable or that it cannot be supported having regard to the evidence.  Consequently, it is necessary for the Court to undertake a review of the evidence in order to decide whether, upon the whole of the evidence, it was open for the jury to be satisfied beyond a reasonable doubt that the appellant was guilty.[1]
  4. [53]
    The appellant submits that the jury’s verdict was unreasonable because the “circumstantial evidence did not permit of the sole conclusion that the appellant intended to kill the complainant”.  He submitted that there were two parts to the defence case.  The first part was that the appellant did not set up the apparatus to feed nitrogen into the caravan.  It was submitted that the defence case at trial was that, assuming that this had ever been done by anyone, it was Ms Ridgeway who had been “directly or indirectly” responsible for connecting the gas cylinder to the apparatus leading to the caravan.  It was submitted that she was motivated to do so to get the appellant out of the house and to secure a better settlement in a divorce.  The appellant accepted that this part of the case depended upon the jury’s assessment of the credit of the appellant and Ms Ridgeway.
  5. [54]
    It was submitted that the second part of the defence case was that it was “absurd to suggest that a man with the scientific background that the appellant had would ever have believed that such an arrangement would cause the death of his wife”.  When he was interviewed, the appellant had said to police that he believed that it would not have been possible to cause any harm to his wife if nitrogen had been fed into the caravan in the way described and that the expert evidence at the trial proved that his belief was justified.  Consequently, it was submitted that it was not open to the jury to reject the appellant’s evidence about his belief and so it was not open to the jury to find that he had an intention to kill his wife even if he had set up the apparatus.
  6. [55]
    In summary, the appellant’s case was that the Crown had failed to exclude the hypothesis that Ms Ridgeway had constructed the apparatus.  This failure was due to three things.  First, there was evidence that she had a motive to implicate her husband falsely in a murder attempt.  Second, there was evidence that the contraption was ineffective to kill.  Third, there was evidence that the appellant must have appreciated that the apparatus could not have killed his wife.  It followed that the jury ought reasonably to have doubted that he had erected it in an attempt to kill her.
  7. [56]
    Section 306 of the Criminal Code (Qld) provides, relevantly, that the elements that the Crown had to prove were:
    1. (a)
      the appellant attempted to kill his wife; and
    2. (b)
      the attempt was unlawful.
  8. [57]
    The second of these elements was not in issue and can be put to one side.
  9. [58]
    Because section 306 concerns an attempt to commit the offence of unlawful killing, the provision invokes section 4 of the Code which defines attempts to commit offences.[2]  Section 4(1) provides, relevantly, that when a person, intending to commit an offence, begins to put the person’s intention into execution by means adapted to its fulfilment, and manifests the person’s intention by some overt act, but does not fulfil the person’s intention to such an extent as to commit the offence, the person is said to attempt to commit the offence.
  10. [59]
    It followed that it was necessary for the prosecution to prove that:
    1. (a)
      the appellant had an intention to kill his wife at the relevant time;
    2. (b)
      the appellant put his intention to kill into execution by means adapted to its fulfilment; and
    3. (c)
      the appellant manifested his intention to kill his wife by some overt act.
  11. [60]
    In Zaburoni v The Queen,[3] Kiefel, Bell and Keane JJ said:

“Where proof of the intention to produce a particular result is made an element of liability for an offence under the Code, the prosecution is required to establish that the accused meant to produce that result by his or her conduct.”[4]

  1. [61]
    On the Crown’s case the appellant connected the cylinder to the caravan by means of the hose, having drilled a hole in the caravan’s floor for that purpose.  He had put holes in the hose where it appeared under his wife’s bed and had drilled holes in the base of the bed to allow the gas to escape into the interior of the caravan.  He had then opened the valve on the nitrogen cylinder to allow the nitrogen to escape from the cylinder and pass into the caravan.  He did these things in order to asphyxiate his wife.  The relevant time at which the appellant’s state of mind is material is when he did that act.
  2. [62]
    If the jury accepted the appellant’s evidence that he believed that emptying the cylinder of nitrogen into the caravan could not kill his wife, or if the jury had a doubt about whether he held that belief, it could not have found that he had put the apparatus in place with a murderous intent or that he had opened the gas valve with that intent.  It would have been obliged to acquit him.
  3. [63]
    It assisted the defence case that the method of murder proposed by the Crown was one that could not have been effective.  However, the impossibility of the means chosen by an offender to kill a person does not, as a matter of law, mean that the offender cannot be guilty of attempted murder.  That is because section 4(3) provides:

“It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence.”

  1. [64]
    The words “not known to the offender” are crucial to the operation of the subsection because knowledge of impossibility, or a doubt by a jury about such knowledge, would be inconsistent with the jury’s conclusion that the appellant had a murderous intent and inconsistent with a conclusion that the appellant had put his intention into execution by the alleged means.
  2. [65]
    The appellant is therefore right to submit that it was crucial for the prosecution to prove beyond a reasonable doubt that he believed that the introduction of nitrogen into the caravan by the means employed would have been effective to kill his wife.  A reasonable doubt about that fact required his acquittal.
  3. [66]
    In considering the evidence in this case it is important to draw a distinction between what was shown to be impossible and what was not shown to be impossible.  On the Crown case it was impossible to kill Ms Ridgeway by releasing all of the nitrogen from a cylinder of the size that was found into a caravan of the size in which Ms Ridgeway was sleeping.  However, the Crown did prove, as the appellant himself accepted, that it is possible to introduce nitrogen into a confined space in such a way so as to asphyxiate a person in that space.
  4. [67]
    The impossibility that existed here was, on the Crown case, because the particular cylinder did not contain enough gas to do the job.  This inadequacy was due to the appellant’s incompetence in executing his intention to murder his wife.  On the Crown case, the appellant erected the system because he mistakenly believed that it would kill her by asphyxiation.
  5. [68]
    In A General View of the Criminal Law of England, Sir James Fitzjames Stephen remarked upon the difficulty presented when a person is charged under the common law with an attempt to murder by impossible means.[5]  After dealing with the problems that judges had found in cases involving attempts to murder by the use of an unloaded firearm, Sir Stephen said:[6]

“All the clauses about attempts to murder, might be comprehended in these words.  ‘Whoever shall attempt to commit murder shall, &c’.  This would avoid all questions as to whether certain acts are an administering of poison, whether a particular substance is poison…”

  1. [69]
    Having regard to the well-known origins of the Criminal Code (Qld) it is not surprising that section 4(3) conforms to the view that Sir Stephen advocated.
  2. [70]
    In R v White[7] the accused put cyanide into his mother’s drink intending to kill her.  The dose was insufficient to kill and the mother did not even drink the potion that the accused had prepared.  It was held that White was guilty of attempting to murder whether he thought that the dose was sufficient to kill or whether he intended to kill by giving a series of doses having a cumulative effect.  It made no difference to the second alternative that in fact cyanide has no cumulative effect.
  3. [71]
    There have been many cases in various jurisdictions in which an accused has been found guilty of attempted murder although the means adopted were impossible.  In R v Collingridge[8] the appellant introduced an electrical wire into the bathwater in which his wife was kneeling.  The live wire did not touch her body and he did not attempt to bring it into contact with her.  She felt a tingling sensation and screamed.  The appellant grabbed the wire and pulled it out of the bath.  The evidence at the trial was that the amount of current carried by a wire of the thickness that had been used could not have killed the appellant’s wife and could not even have caused her any real harm or pain.  Nevertheless, the jury’s verdict of guilty was upheld.  Bray CJ said:[9]

“Indeed, though it is not necessary to decide it, I think that, even if it was not possible that an electric wire like this one could in these circumstances have harmed Mrs Collingridge, no matter what she did, still it was a case of insufficiency of means and not a case of physical impossibility.  Electricity competently handled can be used as an instrument of murder and the victim was there to be murdered by electricity if it had been competently handled.”

  1. [72]
    In Haughton v Smith[10] Lord Reid said:[11]

“A man may set out to commit a crime with inadequate tools.  He finds that he cannot break in because the door is too strong for him.  Or he uses poison which is not strong enough.  He is certainly guilty of attempt: with better equipment or greater skill he could have committed the full crime.”

  1. [73]
    In Britten v Alpogut[12] the appellant was found guilty of attempting to bring a prohibited import into Australia.  He intended to import, and he believed that he was importing, cannabis, which is a prohibited import.  However, he did not know that the substance that he believed to be cannabis was not cannabis.  The Full Court of the Supreme Court of Victoria upheld the conviction.  R v MAI[13] was another case of an attempt to commit the offence of possession of a prohibited import in circumstances in which it was physically impossible for the accused to commit the offence because the substance that the accused thought was heroin was in fact not heroin.
  2. [74]
    The first question for the jury was whether it was satisfied beyond a reasonable doubt that the appellant had built the system of hosing connected to the cylinder and to the interior of the caravan.  On the Crown case as it was presented, this was a fact to be inferred from circumstantial evidence in the face of the appellant’s denial of any knowledge of the existence of such a system when he spoke to police.  However, at the trial the appellant admitted that he had created the system of hosing that was found in the caravan but denied that he had created it to transport gas or that he had connected the hose to the gas cylinder.  He said that he had erected the system of hosing to function as a drain.
  3. [75]
    It was open to the jury to reject that explanation.  There were many problems in the way of accepting it.
  4. [76]
    First, the appellant’s credit was impaired by his failure to offer this explanation when first interviewed by police.  It was open to the jury to conclude that the police interview was a natural opportunity at which to put forward an explanation that was instead offered for the first time at the trial.  This was particularly so given the appellant’s expressed eagerness at the interview to assist police by giving an innocent explanation for whatever it was that they had found.  The interviewer had expressly directed the appellant’s attention to his use of duct tape, yet the appellant did not mention the theory that he put forward only after he knew that his fingerprints and DNA were on the duct tape.  Having denied to police any knowledge of hoses and other such things, at the trial the appellant said that he had indeed used the duct tape that he had bought (only two days before the police interview) in order to repair a defect in a drainage system that he had first erected in April of the same year.
  5. [77]
    Second, the verisimilitude of his explanation was reduced by the obvious uselessness of a system that involved using a perforated hose and duct tape as a drain to carry water.  The holes that the appellant had poked in the green garden hose that he had taped underneath the bed would have been very useful to allow the carriage of gas into the caravan but the jury might well have thought that those holes made the hose entirely useless to carry away water.
  6. [78]
    The appellant was also unable to explain why his contraption was too short to cover the distance over which he said it was meant to stop water leaking into the base of the caravan.
  7. [79]
    Finally, the jury might well have concluded that the appellant’s explanation for why he did not just fix the leak in the roof rather than erect his elaborate system was implausible.  That explanation was that his wife would have complained if he had attempted a repair yet the erection of the drainage system was itself an attempt at repair.
  8. [80]
    All of those matters impinged upon the appellant’s credit and upon the plausibility of the only hypothesis consistent with his innocence that arose on the evidence at the trial.
  9. [81]
    The jury was entitled to accept Ms Ridgeway’s evidence, and the supporting evidence of her brother and sister-in-law, about the state of the hosing when it was found, namely, that it had then been connected to the gas cylinder which was turned on.
  10. [82]
    The jury was entitled to be satisfied beyond a reasonable doubt that the appellant had constructed the apparatus in order to deliver nitrogen gas from the cylinder that he had purchased into the caravan in which his wife was sleeping.
  11. [83]
    Having found that the appellant had built the system and connected it to a cylinder of nitrogen that he had then opened so as to introduce the gas into the place where his wife was sleeping, the jury had then to decide whether it was satisfied that the appellant had done so with the intention of killing his wife.
  12. [84]
    There was no evidence at the trial to support any innocent hypothesis to explain the appellant’s intentions in erecting a nitrogen delivery system.  Rather, what was put forward was an invitation for the jury to accept that (or, at least, have a doubt about whether) the appellant always knew, or correctly believed, that using nitrogen in that way would not have caused death in this case.  However, that was neither what the appellant told police nor what he told the jury.
  13. [85]
    At the interview he asserted, as a fact that he knew was untrue, that nitrogen was entirely harmless.  At the trial he admitted that he had known of the capacity of nitrogen to asphyxiate.  Indeed, the label on the cylinder said as much and the appellant had been proven to research that very subject.  That research revealed, he said, that a concentration of nitrogen in the atmosphere such that the proportion of oxygen was reduced to nine per cent would “was dangerous … beginning to be dangerous, fatal”.
  14. [86]
    The appellant told police at the initial interview that nitrogen was harmless.  He offered this proposition to police to support his claim that it would have made no sense for anyone to build a system of hosing to transfer nitrogen into the caravan.  The statement was false and, at the trial, the appellant accepted that it was false.  By the time he came to give evidence, after the prosecution’s experts had told the jury about the dangers of nitrogen to human life, the appellant’s state of knowledge and belief had shifted from nitrogen being “completely harmless  …  I’ve been using it all my life” to knowing that it can be “dangerous, fatal”.  There was no evidence that anybody knew that the system was ineffective to kill until Mr Chan conducted his experiment and had found that to be so.  It was only in re-examination by his counsel that the appellant asserted, in response to a leading question, that he had “looked up on the web on the volume” and had determined that he did not have enough gas to cause danger from asphyxiation within his office, a space smaller than the caravan.  He said that he had used an online calculator to determine that the quantity of gas in the large cylinder would be insufficient to create a danger if released into his office.  It was open to the jury to reject that evidence.
  15. [87]
    The Crown relied upon the appellant’s falsehoods to police for two purposes.  First, the lies were capable of affecting the appellant’s credit in the eyes of the jury.  They could justify a rejection of his explanation about the purpose of the hosing and his evidence about his belief concerning the danger of the system he had built.  Second, the lies constituted circumstantial evidence that supported a conclusion that the appellant held a belief that if he fed the gas from his (latest and larger) cylinder of nitrogen into the caravan while she was sleeping, then he would kill his wife.
  16. [88]
    There was evidence that the appellant had a motive to kill his wife because she was taking preliminary steps to divorce him and she had demanded that he leave the matrimonial home.  She had also left a will making him her beneficiary.  This evidence of motive was evidence of murderous intent, which, together with the evidence of lies, supported a conclusion that the appellant believed that he had built a system that would be effective to kill.
  17. [89]
    There was no evidence to support the hypothesis that the appellant had built a system in order to introduce nitrogen into the caravan for some, different, innocent purpose.
  18. [90]
    The appellant invokes R v Baden-Clay.[14]  However, that case supports the respondent’s case rather than the appellant’s case.  An alternative hypothesis to explain a circumstantial case must arise fairly upon the evidence.  In this case there was no alternative hypothesis arising from the evidence that could innocently explain the appellant’s conduct in building equipment to introduce nitrogen into the caravan.  The only alternative hypothesis that the jury had to consider was that the appellant had built a drainage system.  Once that was rejected, there was nothing left to explain the appellant’s actions in an innocent way and the jury had to decide whether it accepted the Crown explanation for the evidence.
  19. [91]
    That evidence was capable of proving beyond a reasonable doubt that the appellant had constructed a system to convey nitrogen gas from the cylinder in the carport by a hose to the interior of the caravan.  The jury could have concluded that that system was erected on the day Ms Ridgeway was consulting lawyers about a divorce.
  20. [92]
    It was open to the jury to conclude that a divorce on the terms then proposed by Ms Ridgeway would have been catastrophic for the appellant.  He was living in Australia with no means of livelihood.  He told police that he was receiving unemployment benefits.  Otherwise, his prospects of earning a living by his professional qualifications were poor or remote.  There is no suggestion that he had any answer to the problem of where he would live if he had to leave the matrimonial home.  On the other hand, he and his wife owned real property in common and he knew that she had made a will leaving all of her property, including the residential home owned solely by her, to him.
  21. [93]
    The jury might well have concluded that the appellant was in a position in which, if he did nothing, he would soon be homeless and destitute.  However, if he killed his wife he could remain in the family home together with his children but be rid of his troublesome wife.  Instead of suffering the financial consequences that he would otherwise have to face and instead of being made homeless, he would, instead, become the sole owner of all of the matrimonial property.
  22. [94]
    Motive, if proven, is a matter from which a jury might properly infer intention.[15]
  23. [95]
    It was open for the jury to accept Ms Ridgeway’s evidence that she had seen the hose inside the caravan connected by a system of inter-connecting hoses to the nitrogen cylinder.  The appellant’s internet searches into the asphyxiating properties of nitrogen, as well as his acknowledgment of the dangers when giving evidence, could justify a conclusion that he had a mistaken belief about the effectiveness of the system he had erected as a killing device.
  24. [96]
    For the foregoing reasons there was evidence upon which the jury could be satisfied beyond a reasonable doubt about the appellant’s guilt.
  25. [97]
    By ground two of his notice of appeal the appellant contends that there has been a miscarriage of justice caused by the trial judge’s directions about proof of the appellant’s intention.  The defect is said to be a failure on the part of the trial judge to point out to the jury than an essential step in the chain of reasoning was that the appellant believed that introducing nitrogen into the caravan would kill Ms Ridgeway.
  26. [98]
    The trial judge’s directions concerning intent fell into three parts.  First, his Honour directed the jury that it was “an essential element of the offence that the defendant had an intention to kill Pepita Ridgeway at the time of or during the relevant act or acts”.  His Honour pointed out that anything less than an intent to cause death would be insufficient.  His Honour then directed the jury that proof of intent was necessarily a matter of inference.  His Honour informed the jury that they could only draw inferences from the proven facts and that there must be a logical and rational connection between the facts as found by the jury and any inference drawn from those facts.  His Honour also pointed out that if more than one inference was reasonably open and if one inference was adverse to the defendant, pointing to his guilt, and another was consistent with his innocence, then the jury was obliged to accept the inference that was most favourable to the accused.
  27. [99]
    The second part of the direction comprised the usual direction given by trial judges about the nature of inferences and how rational inferences may be drawn from evidence.
  28. [100]
    The appellant does not complain about the content of those directions.  Rather, he submits that the trial judge should have “given greater assistance with the identification of the evidence that went to prove an intention to kill”.
  29. [101]
    No redirection was sought.  It follows that it was for the appellant to establish that there has been a miscarriage of justice.  The appellant had to establish that the absence of such a direction might have affected the verdict and that, had a proper direction been given, the jury might have acquitted the appellant.
  30. [102]
    The appellant’s submissions do not go that far.  He contends that the jury should have been given greater assistance in identifying the evidence about intention.
  31. [103]
    Apart from cases in which an irregularity in the conduct of the trial is so material that the irregularity constitutes a miscarriage of justice in itself without the need to consider its effect on the verdict, in a case like the present the appellant must show that the irregularity affected the result.  There is no onus on the prosecution to show that it did not.[16]
  32. [104]
    The appellant merely submits that the learned trial judge “did not discuss an essential step in the chain of reasoning that could lead to a finding of an intention to kill”.  That step, it is said, was a finding that the appellant believed that the system would kill the appellant’s wife.  However, once the jury concluded that the appellant had built a system to introduce nitrogen into the caravan, the appellant’s purpose in building it became a simple matter.  In the context of the evidence in this case, the potential danger of the gas together with the appellant’s circumstances and his various statements constituted evidence that could prove the appellant’s mistaken belief about the lethality of the system he had built and his purpose in building it.
  33. [105]
    His Honour dealt with that evidence in his summing up.  After instructing the jury about the significance of the appellant’s statements to police and his attempt to change the invoice for the gas cylinder, as well as the limitations to be placed upon that significance, the learned trial judge directed the jury about proof of intention.  Then, after dealing with the evidence of the witnesses, his Honour returned to the issue of proof of intention and emphasised the nature of the onus borne by the prosecution.
  34. [106]
    His Honour did not traverse the evidence with a view of showing the jury how it might be used to show guilt.  To that extent it is correct to say that his Honour did not identify the series of evidentiary steps that the jury could take to find guilty intent.  However, doing so would have assisted the prosecution and not the defence.  Perhaps for that reason, the appellant has not advanced any submissions to demonstrate that there has been a miscarriage of justice in the sense that he has lost a chance of acquittal that should have been open to him.  Beyond a bare assertion that “the trial miscarried through a lack of proper directions on this point”, the appellant has not attempted to demonstrate the existence of a miscarriage of justice.  This ground should be rejected.
  35. [107]
    By ground three the appellant contends that there has been a miscarriage of justice caused by the learned trial judge’s directions about the use of post-offence conduct as proof of the appellant’s intention.  To a degree, this ground is inconsistent with ground two because it complains about the learned trial judge’s identification of evidence that can prove intent.
  36. [108]
    In this respect the appellant points to the evidence led by the Crown about the appellant’s failure to tell police during his interview that he had erected a drainage system under the bed and the appellant’s asking BOC to alter the receipt.
  37. [109]
    The appellant submits that there was an alternative hypothesis that would explain both pieces of evidence.  That hypothesis was that the appellant had set up the apparatus “to harass his wife”.  Upon that footing, his post-offence conduct was said to be indicative of his sense of guilt for trying to harass her with gas rather than his sense of guilt in trying to kill her.
  38. [110]
    That ground must fail because harassment by the use of nitrogen, as an alternative hypothesis, did not arise as an issue in this case.  It is true that the Crown had originally charged the appellant with an alternative count of administering a noxious thing, namely nitrogen, with intent to injure or annoy his wife.  The learned trial judge acceded to the appellant’s submission that there was no case to answer on that charge.  There was a directed verdict of not guilty.  However, having disposed of the charge, the appellant did not advance such a theory at the trial and there was no evidence to support it.  After the no case submission was accepted nothing more was heard of that hypothesis.  For obvious reasons, the Crown could not refer to it again and instead concentrated on proving its attempted murder case.  Indeed, it would have been remarkable if the appellant’s counsel had put that hypothesis forward during the trial.  It would have conflicted directly with the appellant’s claim that he had inserted the hose into the caravan as a device to drain water.  It would have conflicted directly with his evidence that he had had nothing to do with introducing nitrogen into the caravan.  Further, if it had been raised in that way, it might have constituted an invitation to reject the appellant’s evidence as untrue.
  39. [111]
    The appellant’s trial counsel’s failure to raise the point is therefore explained upon the basis that there was an advantage to the appellant in remaining silent about that possibility and potential for harm if such a theory, in complete conflict with the defence case, had been offered.
  40. [112]
    In any event, contrary to the appellant’s submission,[17] the trial judge’s directions did not work to permit the jury to determine that the appellant had an intention to kill by inferring this intent from his omission to mention his creation of the drain to police and from his attempt to obtain a new receipt for the purchase of the nitrogen cylinder.  On the contrary, his Honour’s direction about those two matters was as follows:

“I ask you to remember this.  People don’t always act rationally.  And conduct of this sort can often be explained in other ways:  the result of fear or panic or other reasons having nothing to do with the offence charged.  You must have regard to what has been said to you by the defendant as to the explanations for his conduct.  And he gave evidence of that.  All of these matters must be considered by you in deciding whether you can safely draw any inference from the conduct.

Moreover, before the evidence of the defendant’s conduct, those two items after the event, can assist the prosecution, you would have to find not only that it was motivated by a consciousness of guilt on his part, but also that what was in his mind was guilt of the offence charged, not some other misconduct.  If and only if you reach the conclusion that there is no other explanation for his conduct, such as panic or fear of wrongful accusation, you are entitled to use that finding as a circumstance pointing to the guilt of the defendant to be considered with all the other evidence in the case.  Standing by itself, those two items of evidence cannot prove guilt.”  (Emphasis added)

  1. [113]
    This ground should be rejected.
  2. [114]
    For the same reasons, ground four should also be rejected.  By ground four the appellant contends that there was a failure to distinguish attempted murder from other offending based on the same physical acts, but with different mental elements, and which might explain the post-offence conduct relied upon by the Crown and which was the subject of an Edwards[18] direction.
  3. [115]
    To support this ground the appellant repeats his submissions that he made in support of ground three.  Those submissions should be rejected for the same reasons that have already been given.
  4. [116]
    The appellant also submits that the jury was inadequately directed about the use of that evidence.  It is now submitted that there were other possible offences or misconduct that might have given rise to the post-offence conduct and which might explain that conduct.  It is now said that the post-offence conduct might indicate consciousness of guilt of the offence of common assault by the application of gas,[19] disabling in order to commit an indictable offence[20] or an attempt to stupefy in order to commit an indictable offence.[21]
  5. [117]
    In support of this ground, the appellant cites R v Trebeck.[22]  However, Trebeck was a murder case in which there was a failure to direct the jury about manslaughter as an alternative to murder in a case in which evidence of post-offence conduct to prove a consciousness of guilt of murder should also have been left to the jury upon the basis that it might prove only consciousness of guilt of manslaughter.[23]
  6. [118]
    The present is an entirely different case.
  7. [119]
    As was submitted by Mr Heaton QC, who appeared for the respondent, once the jury accepted that the appellant had connected the gas cylinder to the interior of the caravan and opened the valve on the cylinder to allow nitrogen to enter the caravan, any scenario consistent with innocence of attempted murder was neither apparent nor suggested in the course of the trial.  It would therefore have been unrealistic for the trial judge to have complicated his directions by referring to such non-issues.
  8. [120]
    As the High Court said in Baden-Clay,[24] it is not necessary for a jury to consider a hypothesis which was not put to it for tactical reasons, which is directly contrary to the evidence that the accused gave at the trial and which is directly contrary to the way in which the accused’s counsel conducted the defence.  In the present case the appellant not only denied that he had any intention to expose his wife to the gas but denied that he had installed the apparatus by which to do so.  Any intention on his part to do anything other than to kill his wife (on the Crown’s case) or to drain water (on his case) simply did not arise on the evidence and did not have to be considered.
  9. [121]
    This ground should also be rejected.
  10. [122]
    For these reasons, the appeal should be dismissed.
  11. [123]
    PHILIPPIDES JA:  I agree that the appeal should be dismissed for the reasons given by Sofronoff P.
  12. [124]
    FLANAGAN J:  I agree with Sofronoff P.

Footnotes

[1] SKA v The Queen (2011) 243 CLR 400 at [41].

[2] R v O’Neill [1996] 2 Qd R 326, at 432 per Dowsett J with whom Pincus JA agreed at p 422.

[3]  (2016) 256 CLR 482.

[4] supra at [14].

[5]  MacMillan & Co, 1863, 2005 reprint, the Law Book Exchange Ltd at p 123-124.

[6]supra at p 124.

[7]  [1910] 2 KB 124.

[8]  (1976) 16 SASR 117.

[9] supra at 125.

[10]  [1975] AC 476.

[11] supra at 500.

[12]  [1987] VR 929.

[13]  (1992) 26 NSWLR 371.

[14]  (2016) 258 CLR 308.

[15] Baden-Clay supra at [70] quoting De Gruchy v The Queen (2002) 211 CLR 85, at [28].

[16] TKWJ v The Queen (2002) 212 CLR 124, at [72] – [73]; Dhanhoa v The Queen (2003) 217 CLR 1, at [38].

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

[18] Edwards v The Queen (1993) 178 CLR 193, at 208.

[19]  s 245(1): A person who … applies force of any kind to the person of another … without the other person’s consent … is said to assault that other person. s 245(2) …  “applies force” includes the case of applying … gas; s 335(1): Any person who unlawfully assaults another is guilty of a misdemeanour and is liable … to imprisonment for 3 years.

[20]  s 315: Any person who … by any means calculated to … suffocate … and with intent to commit an indictable offence … renders any person incapable of resistance … is guilty of a crime.

[21]  s 316: Any person who, with intent to commit … an indictable offence … administers … any stupefying … thing to any person, is guilty of a crime ….

[22] [2018] QCA 183.

[23] supra, at [32] and [46]-[48].

[24] supra, at [63].

Close

Editorial Notes

  • Published Case Name:

    R v Ridgeway

  • Shortened Case Name:

    R v Ridgeway

  • MNC:

    [2020] QCA 38

  • Court:

    QCA

  • Judge(s):

    Sofronoff P, Philippides JA, Flanagan J

  • Date:

    10 Mar 2020

Litigation History

EventCitation or FileDateNotes
Primary JudgmentSC878/18 (No Citation)25 Jun 2018Date of Conviction (Martin J).
Appeal Determined (QCA)[2020] QCA 3810 Mar 2020Appeal against conviction dismissed: Sofronoff P and Philippides JA and Flanagan J.

Appeal Status

Appeal Determined (QCA)
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