The Queen v Hardie[1999] QCA 352

COURT OF APPEAL

PINCUS JA

THOMAS JA

CHESTERMAN J

BRISBANE

DATE 24/08/99

JUDGMENT

PINCUS JA:  The appellant was convicted, after a trial before the Chief Justice, of attempted murder.  He appeals against his conviction and applies for leave to appeal against sentence.  The notice of appeal against conviction says that the verdict was unsafe and unsatisfactory. 

There was evidence that the appellant, on the evening of 7 July 1998, came to the house of one Murray at Scarborough.  Later Murray, a person called Stephens and the appellant went out together in a truck and this was done, as Murray swore, to obtain some car parts.  In his argument to us today the appellant has emphasised that this was the purpose of the journey.  The appellant asked his companions to wait and he went inside a house at Georgina Street, Woody Point alone.  Then, it is said, the house was occupied by the complainant and a Ms Samuels. 

The Crown case was that the appellant obtained a knife from the kitchen and he told Ms Samuels that when the complainant, who was then talking on the telephone, got off the phone he was going to stab her in the eye.  There was evidence that the appellant struck the complainant and threatened to kill her, pushed her out the door and told her to keep walking.  After they had walked some distance, according to the evidence, the appellant renewed his threat to kill, grabbed the complainant and cut her throat from left to right, and also stabbed her in the back of the head and in the back left shoulder area.

In the appellant's summary of argument it is said that he had no intention in coming to the premises other than to pick up car parts, and in his oral argument today this has been repeated.  The summary goes on:

"Some time on entering the premises a argument and fight started and subsequently [the complainant] was subsequently assaulted and stabbed by the applicant."

The point taken is that the Crown did not prove intention to kill.

I should mention the medical evidence, which was given by telephone.  A Dr Peterson examined the complainant and found that, as a result of having her throat cut, there was a 15 centimetre cut from the left side to the right side of the neck and it was one to one-and-a-half centimetres deep.  There had been substantial blood loss.  There was also a two centimetre long cut immediately below the scapula bone on the left side at the back, which caused a collapse of the lung.  To cause that, according to the doctor, there would have had to be a penetration of the order of one and a half to two centimetres.  There was a third cut, about three centimetres in length, at the base of the skull.

In cross-examination of the complainant, counsel who appeared below did not dispute that the injuries complained of were suffered and that is not disputed now, in the argument which Mr Hardie has addressed to us.  The principal point taken in cross-examination, and which has been repeated today, was that in a statement to the police taken while the complainant was in hospital she did not say that the appellant said, "I'm going to kill you," at one stage.  She appeared to accept that she had not told the police that but said, by way of explanation, that she had "just pretty much got off a life support machine".  Another suggestion made in cross-examination was that the complainant said to the appellant when they were outside the house that she was going to "get some apes to fix you up, you cunt".  Counsel then suggested that, when that remark was made, the appellant pulled the complainant's head back and got the knife and cut her throat and stabbed her.

Murray, whom I have previously mentioned, gave evidence that he saw the appellant and the complainant come out of the block of units.  He saw the appellant slapping the complainant round the back of the head and subsequently heard her complain that her throat had been cut.  Murray said that he and Stephens picked the appellant up in the vehicle and he said, "I slit her fucking throat.  The moll deserved it."  They returned to Murray's house, according to Murray's evidence, where he made similar remarks.

Ms Jokowski, who had been living at Murray's house, said that she heard the appellant say, on his return to the house, "I've cut the slut's throat.  She deserved it.  I should have done it properly."  Subsequently, it appeared from a radio broadcast that a woman had her throat cut at Woody Point and the appellant said that he should go to the hospital and "finish the slut off".  Andrew Stumpf, another occupant of the Murray house, said that on the appellant's return to the house he kept saying, "I cut her fucking throat.  The stupid bitch deserves it."  Stumpf was not challenged on that.

The only question raised of any substance is whether there was evidence on which it was open to the jury to be satisfied that this throat cutting, which was an act of a kind which plainly could have caused the death of the complainant, was done with intent to kill her.  The most direct evidence of intent was, of course, that of the complainant and the principal criticism which the appellant makes of that, orally and in writing, is that on one of the occasions on which, according to the complainant's evidence, a threat of killing was made she did not tell the police initially of that threat.  Also it is said, both in writing and before us, that the threat which was, according to the complainant, made in the house was not heard by others. 

But these were jury matters.  It was, in my view, plainly open to a rational jury to accept the evidence of the complainant in spite of the inconsistency and, as to the interview in the hospital, to accept what the witness said, which was that she was "pretty well drugged up and had just come off a life support machine for three days" and "pretty well in shock about it all".

There was other evidence which bore upon the question whether the jury was entitled to find that the appellant intended to kill.  There was the fact that Ms Samuels gave evidence, unchallenged, of an attempt to stab the complainant in the eye.  There was evidence that when the appellant later spoke of the incident he appeared to regret that he had not done more harm and said that he should go to the hospital and finish the complainant off.  Of course, the jury was entitled to take into account that the evidence of the complainant of the threat to kill her was not contradicted by any evidence from another witness, and in particular not by evidence from the appellant.

The case was one in which the accused, as was common ground, deliberately cut the complainant across the throat in such a way as to cause significant blood loss but not deeply enough to kill her.  That is, there was plainly enough evidence supporting an intent to do at least grievous bodily harm and the question was whether the intent went further.  It is my opinion that the evidence was quite sufficient to justify the jury's conclusion. 

A separate attack which was made on the conviction was that it was said that the Judge did not make clear to the jury that the intent had to be in existence at the time of the attack.  That seems to me to have no substance whatever, because the Judge stated that plainly enough on two occasions.

With respect to the application for leave to appeal against sentence, I notice that the appellant, who was 23 years of age when he committed the offence, has a significant criminal history.  It includes offences of dishonesty such as stealing and there are also on his record a number of assaults.  The complainant has signed a statement in which she describes the impact of the events on her life as absolutely devastating and gives details, of a kind which one would expect, as to the result of the attack.  The Judge took a serious view of the matter and sentenced the appellant to 14 years imprisonment.

There has been reference in the argument today to a charge, as to which there was a plea of guilty, of unlawful use of a motor vehicle in respect of which there was a sentence of two years imprisonment concurrent.  Mrs Clare, who has appeared for the respondent, has suggested that the 14 year sentence may be justified partly on the basis of the Judge's having taken into account the culpability of the unlawful use of the motor vehicle.  I find it unnecessary to discuss that submission.

The trial Judge referred to the fact that after cutting the victim's throat the appellant went off and boasted about that.  He said that the offender had exhibited a disturbing degree of defiance with no suggestion of remorse.  In argument today, the appellant has said that he was not at liberty to tell the Judge that he was remorseful.  But in fact it seemed quite clear and was not disputed that his attitude immediately after the event in question was quite the opposite of remorse.

The primary Judge expressed some pessimism about the prospects of rehabilitation.  There was before His Honour a report from a psychologist given to the Legal Aid Office which speaks of an unsatisfactory childhood and a drug dependence problem.  The appellant told the psychologist that on the night of the offence he had taken Rohypnol and "speed".  He was assessed as being of below average intelligence, emotionally unstable but not showing any functional neurological deficits.  The psychologist whose report is, in my view, a helpful one remarked, "His acts of distraught, violent behaviour seem to be occasioned by a combination of intoxication with an already unstable personality in a relatively dull young man."

It may be of course that as he becomes older the appellant will become less inclined to violent behaviour, but at present, on this report and on the basis of his behaviour towards the complainant, he must seem to constitute a possible danger.

We have been referred to comparable cases:  Byers (CA No 430 of 1994, 28 February 1995); Hewitt (CA No 405 of 1993, 3 December 1993); and Lepp (CA No 229 of 1998, 4 December 1998).  Lepp is in some respects a rather worse case, although reasonably comparable.  The sentence of 16 years imposed in that case tends to support the view which the primary Judge took here. 

I note that, because of the nature of the offence and the state of the law since the insertion of Section 9A in the Penalties and Sentences Act 1992, the appellant will not be eligible for release on parole until he has completed 80 per cent of his head sentence.  But for the changes wrought by the provisions contained in Part 9A of the Penalties and Sentences Act 1992, he would have been eligible for parole at a substantially earlier date.  That was the situation which had pertained in the case of Lepp to which I have referred, and the Court did not in that case treat it as justifying any reduction of the head sentence.  In this connection, I also mention the remarks which this Court made in Robinson (CA No 72 of 1998, 26 May 1998); in Booth (CA No 338 of 1998, 30 March 1999), in particular in the reasons of McPherson JA at page 14; and in Bojovic (CA No 4 of 1999, 8 June 1999), in particular at page 11 of the Court's reasons.  These authorities show, in my view, that the Judge was right not to reduce the sentence, below the range which would otherwise have been applicable, because of the application to the appellant at Part 9A. 

The period of time which he will have to serve before becoming eligible for release on parole is substantially in excess of that which he would have had to serve before this change in the law.  But that is really a matter for the legislature and it is not proper for this Court to, in effect, attempt to defeat the legislative intention by imposing a sentence in a lower range than would otherwise have been appropriate.

My view of the matter is that the attack on the conviction as being unsafe should fail, that the attack on the Judge's summing-up should suffer a similar fate and that the appeal against conviction should be dismissed. I would also refuse the application for leave to appeal against sentence.

THOMAS JA:  I agree.

CHESTERMAN J:  I agree.

PINCUS JA:  The order will be as I have indicated, and the Court will now adjourn.