SUPREME COURT OF QUEENSLAND

1. THOMAS JA: I agree with the reasons for judgment of White J and with the orders she proposes.

2. WHITE J:  The appellant was arraigned on charges of attempted murder, unlawful wounding with intent to do grievous bodily harm and unlawful wounding.  He pleaded guilty to unlawful wounding which was not accepted by the prosecutor in discharge of the indictment and the trial proceeded on the other alternate charges.  He was convicted of attempted murder and sentenced to 9 years imprisonment on 21 March 2001.

3. The appellant appeals against conviction and seeks leave to appeal against sentence. Mr A J Kimmins, who appeared for the appellant, was given leave to substitute new grounds of appeal, namely, that there has been a miscarriage of justice because the learned trial judge failed to direct the jury:

• about the appellant’s intoxication;

• about the appellant’s good character;

• that defence counsel had put to a prosecution witness that a particular conversation about which she had given evidence did not occur.

4. The complainant was a prostitute whose modus operandi was to ply her trade on a stretch of the Gold Coast Highway near Tallebudgera.  The appellant had employed her services on some five or six occasions in the six months prior to 30 October 1999.  She said that there was nothing untoward about these encounters and that on some occasions they would smoke cannabis together.

5. On 30 October 1999, which was a Saturday, the appellant and his family had been out on Moreton Bay in the family boat. Relations between the appellant and his wife were not harmonious and more discord occurred when they returned home. As a consequence, the appellant drove to the Gold Coast towing the boat allegedly to go fishing, picked up the complainant about 8.30 p.m. on the Highway and travelled to the Currumbin boat ramp. They got into the boat, the appellant paid the complainant $100 and after desultory conversation undressed and commenced some sexual intimacy.

6. As the complainant lent over to get a condom from her bag the appellant stabbed her in the back. He continued to do so in the anterior abdomen, lower pelvis, back and hand. There were eight stab wounds to her body and two to her left hand. The complainant thought that the knife broke whereupon the appellant faltered and moved away. She took the opportunity to escape through the hatch in the boat, ran into the street and sought assistance from passing motorists.

7. The appellant’s wife gave evidence that the appellant woke her about 10.30 p.m. in their bedroom that night. The appellant then washed and cleaned the boat for several hours and in the early morning got up and washed the mattresses from the boat. In response to his wife’s query he said that “he had spilt a bong which made a lot of mess”. The appellant’s long standing use of cannabis had been a source of contention between them.

8. Two days later the appellant made admissions to his wife that he had stabbed the complainant. He told her “I was mad with her [the complainant] because I gave you thrush”. The wife said that she had contracted a severe case of thrush about six weeks previously and this had been an aspect of the argument with the appellant. Shortly afterwards the appellant said to her, “It wasn’t me. It must have been the drugs”.

9. A week later he told his wife that he had picked the complainant up, they had gone to the boat and smoked a bong and when he went to get a drink from the esky he caught the complainant with his “stash” of cannabis. Thereafter, he said, the complainant had tried to attack him with a knife and a struggle ensued. He denied to his wife stabbing the complainant ten times which would appear to have been reported in newspapers which had been read by his wife.

10. The sole issue for decision at trial was the intention of the appellant at the time when he stabbed the complainant. The appellant did not give evidence.

Failure to direct in relation to intoxication

11. There was very limited evidence at the trial about the use of cannabis by the appellant immediately prior to him stabbing the complainant. Although the complainant agreed that she had smoked cannabis on previous occasions with the appellant she denied that she did so on this occasion and, presumably, by inference, neither had the appellant.

12. The appellant’s brother gave a statement to police in which he said that three days after the attack on the complainant the appellant had said to him that he and the complainant had “smoked a couple of bongs in the boat”. He did not disagree with that statement at trial.

13. Accordingly, the only positive evidence touching upon the consumption of drugs by the appellant was the evidence of the appellant’s wife as to what the appellant said to her and what his brother said had been related to him by the appellant.

14. There is a significant difference between evidence of consumption and evidence of intoxication which is necessary before s 28 of the Criminal Code might be considered.  The only evidence which in any way approached what the effect of consuming cannabis had had upon the appellant – if it had been taken – was the appellant’s statement to his wife, two days after the stabbing, “It wasn’t me.  It must have been the drugs”.  This is not evidence of intoxication, merely speculation.

15. There was no request by defence counsel for a direction on intoxication. This is not surprising because an intoxication direction will remind a jury that people often do things when intoxicated that they would never do when sober and that the intoxication may remove inhibitions and release passions normally kept under control which does not mean that the accused has not formed the requisite intent, Viro v R (1978-1979) 141 CLR 88 per Gibbs J at 112; R v Coleman (1990) 19 NSWLR 467 per Hunt J at 486.  Nonetheless, if there is evidence of intoxication sufficient to raise a reasonable doubt as to an accused person’s intention then the jury should be given a direction about how they might make use of an accused’s alleged intoxication, R v Stokes and Difford (1990) 51 A Crim R 25 per Hunt J at 32.

16. Mr Kimmins relied on a passage in the judgment of Gibbs J in Viro at 118 referred to in Stokes and Difford

“… a judge, if in any doubt as to whether there is sufficient material to raise such an issue, should leave the issue to the jury”.

His Honour was there referring to the issue of self defence although the approach would not be different in the case of intoxication as was recognised by Hunt J in Stokes and Difford at 31.

17. The difficulty for the appellant is that there was no evidence which would raise the issue of intoxication, partial or complete, in contrast to consumption of cannabis. In cases such as Stokes and Difford, R v Reynolds CA No 31 of 1982, an unreported decision of 29 July 1982; R v Soper CA No 245 of 1992, an unreported decision of 11 March 1993; R v Rose (1996) 87 A Crim R 109; and R v Faure [1999] 2 VR 537, referred to by Mr Kimmins, there was evidence to a greater or lesser extent of the accused’s intoxication.

Failure to direct as to good character

18. The only evidence pointing to the appellant’s good character occurred in one brief passage during the cross-examination of a prosecution witness, Victor Jeffries.

“You have known my client, haven’t you, for some 12 years, I think you told the prosecutor?--  That would be about right, yes.

In that period of 12 years, have you ever seen him commit an act of violence?—No.”

In discussion with defence counsel in the absence of the jury and before addresses the learned trial judge asked whether, in the light of that question and answer, he was seeking a formal direction on good character mentioning that any such direction would have to be qualified by the limited nature of the evidence and that the appellant had pleaded guilty to unlawful wounding.  No direction was sought.  Mr Kimmins submitted that counsel may well not have asked for a good character direction in light of her Honour’s intimation that any such direction would be qualified but that her Honour was obliged to do so once the evidence raised the issue.

19. The reception of good character evidence in a criminal trial is, as McHugh J observed in Melbourne v R (1999) 198 CLR 1 at 15 anomalous when compared with the common law’s rejection of bad character evidence except in limited circumstances.  McHugh and Hayne JJ held that, contrary to English and New Zealand authority, in Australia there is no rule of law that in every case where good character is raised the trial judge must direct the jury as to the manner in which that evidence may be used.  McHugh J concluded at 14

“… The preferable position is that the trial judge must retain a discretion as to whether to direct the jury on evidence of good character after evaluation its probative significance in relation to both:

1. the accused’s propensity to commit the crime charged; and

2. the accused’s credibility.

The judge may conclude that the good character evidence adduced is of probative significance in relation to (a) only, (b) only, both (a) and (b) or neither (a) nor (b), and can direct (or not direct) the jury accordingly.  Whether the discretion has miscarried in a particular case will depend upon the facts of that case.  But Australian courts should not now introduce a rule that a direction on character is always required once the accused has adduced evidence of good character.”

20. Here there was conflict between the complainant’s evidence at trial and the appellant’s brief out of court statements to his wife and friends as to how the attack commenced. If the jury accepted the appellant’s version or had a doubt about the complainant’s evidence on this they might well have had a reasonable doubt about whether the Crown had proved that the appellant had the necessary intent to kill when he stabbed the complainant. There was no suggestion that anyone other than the appellant had inflicted the stab wounds on the complainant. Indeed the appellant had accepted responsibility for them. Self-defence did not arise. If good character were to be put to the jury, in light of the question asked of Mr Jeffries, it might be thought that the evidence would tend to go to propensity rather than credibility. No ground work had been laid by the defence for offering the brief evidence of Mr Jeffries that in 12 years he had not seen the appellant act violently.  Neither the appellant’s wife or brother who, presumably, had opportunity to observe the appellant much more closely, had been asked about his good character.  The jury might well have concluded, had they been directed about good character, that those witnesses could say nothing to the appellant’s advantage on that matter.  Further, it is likely to be regarded as an insult to common sense to direct the jury about the good character of a married man whom the jury has heard  resorted to prostitutes and disregarded the law regarding the possession and supply of illegal drugs, R v Aziz [1996] AC 41 at 53, when such minimal good character evidence had been adduced.

21. The state of the evidence did not suggest that the learned trial judge should have exercised her discretion in favour of a direction about the appellant’s good character.

Failure to remind the jury of the thrush conversation

22. The appellant’s wife, as mentioned above, gave evidence that her husband had said to her that he was “mad with her [the complainant] because I gave you thrush”. It was put by defence counsel to her that that conversation had not taken place. The wife rejected that suggestion. This was said by the prosecutor to be a possible motive for the attack by the appellant on the complainant. In her summing-up the learned trial judge said

“[The prosecutor] suggested that if [the appellant] believed that [the complainant] was responsible for the infection of his wife, that might be the beginnings for the explanation for what occurred”.

Mr Kimmins submitted that failure to remind the jury either then or in some other part of the summing-up that it had been put to the appellant’s wife that this conversation did not take place and that they might infer therefrom that those were the appellant’s instructions to his counsel was a misdirection amounting to a miscarriage of justice.

23. Her Honour gave appropriate directions to the jury that suggestions made to witnesses that were not agreed to, were not evidence and that they were entitled to reject or accept all or part of a witness’s evidence. Her Honour summarised the defence submissions including the unlikelihood that the appellant intended to kill the complainant because, indirectly, she had caused him to infect his wife. This was an important issue to the defence and it was put adequately before the jury. There could be no doubt in the jury’s mind that the conversation attributed to the appellant by his wife was denied by the appellant. The issues were appropriately identified and there was no obligation on the learned trial judge to direct the jury in the way contended for by the appellant.

24. There is no substance in any of the grounds raised by the appellant. The appeal should be dismissed.

Sentence Application

25. The applicant for leave to appeal against sentence was aged 43 years at the time of committing the offence. He had been fined for offences of soliciting for the purposes of prostitution and convicted of dangerous driving and fined and disqualified from driving for six months in July 1998. He otherwise had no previous convictions. A report from Dr B Klug, a consultant psychiatrist, referred to the applicant’s 20 year cannabis habit in the course of which he smoked an average of 20 “cones” daily. The applicant admitted to taking small quantities of amphetamine from time to time. The applicant told Dr Klug that he used the drugs in an attempt to control long-standing depression. He had had good employment for many years although had lost his job with Telstra recently. After the offence he had taken steps to overcome his drug dependency by gradual lessening of use and then ceased altogether. This had led to an improvement in his mood.

26. The learned sentencing judge noted that despite the level of violence offered to the complainant she had made good physical recovery although her Honour observed that this might not be the case with her psychological recovery. There was no victim impact statement from the complainant.

27. Defence counsel had submitted that the appropriate range was between 8 to 10 years imprisonment. The prosecutor contended for a sentence between 12 and 14 years.

28. Before this Court Mr Kimmins submitted that the sentence was manifestly excessive and the proper range was a term of imprisonment of 7 to 8 years. He sought support for that position from a number of cases of attempted murder where sentences lower than that imposed below were given. Mr Kimmins referred to R v Brown CA No 125 of 1992, an unreported decision of 3 June 1992.  A 19 year old young man was convicted of attempted murder and sentenced to a term of six years imprisonment which was not altered on appeal.   He threatened to kill police who were brought in to the kitchen by his mother and lunged with a knife in a downward stabbing motion towards the neck or shoulder region of one of the police officers.  It missed its target by a short margin.  The applicant had had a very unhappy and disturbed childhood and had previous convictions for assault and robbery.  It was a very different case from the present.

29. In R v Bitossi [1984] 2 Qd R 51, the applicant was sentenced, after a trial, to seven years and four months imprisonment for attempted murder.  A shotgun had been discharged into a bar of a Gold Coast hotel wounding a number of persons including one who bore the brunt of the injuries.  There was no application for leave to appeal against the sentence imposed. 

30. The applicant in R v Farquhar, CA No 349 of 1994, an unreported decision of 16 November 1994, was sentenced to eight years imprisonment in respect of the attempted murder of the man with whom she had been living.  She assaulted him by jumping on his head and hitting him with a bottle.  She delivered bare foot kicks to his head while he was unconscious and jumped on his stomach.  The complainant was left with serious symptoms wherein his balance was greatly impaired and he had speech and memory problems due to the severity of his head injuries.  The applicant had a previous conviction for unlawfully wounding the same man and was psychiatrically disturbed.  The sentence was not disturbed on appeal.  In the course of his remarks Dowsett J noted that there was a tendency to concentrate in such cases

“…too much upon the assault and too little upon the element of intent.  The gravamen of the offence of attempted murder is precisely that – that there was an intention to kill,” p4.

31. In R v Kingelty and Griffiths [2000] QCA 198, CA Nos 390 and 413 of 1999, an unreported decision of 26 May 2000, a decision relied on by both Mr Kimmins and Mr Campbell, the applicants for leave to appeal against sentence had pleaded guilty to attempted murder and were sentenced to terms of imprisonment of eight years and ten years respectively.  In Kingelty’s case a declaration of a serious violent offence was made.  The applicants were aged 24 and 22 respectively and had no relevant previous convictions.  Because of past grievances they decided to attack the complainant who had been in a de facto relationship with Kingelty.  Griffiths engaged in a violent attack with a cane knife whilst Kingelty waited outside in the get-away vehicle and shouted encouragement.  The complainant suffered a fractured skull and a serious injury to his arm.  The sentences were not altered on appeal and would suggest that the sentence here was within range.

32. The learned sentencing judge appropriately described the attack as appalling and unprovoked upon a vulnerable woman. She noted the applicant’s good work record and lack of relevant criminal history and that he had taken steps to overcome his drug dependence and had sought treatment for his depression. She rightly emphasised the need for deterrence against such conduct. Her Honour could have, but did not, declare the applicant to be convicted of a serious violent offence under s 161B(3) of the Penalties and Sentences Act 1992 (Qld).  The sentence imposed was not manifestly excessive.

33. I would refuse the application for leave to appeal against sentence.

34. WILSON J: I agree with the reasons for judgment of White J, and with the orders Her Honour proposes.