R v Glebow[2002] QCA 442

SUPREME COURT OF QUEENSLAND

1. DAVIES JA:  I agree that this appeal must be dismissed.  Subject to what I am about to say I agree with the reasons of Jerrard JA.

2. It is important to remember that intent is a plain English word which does not need definition or elaboration. Attempts by a trial judge to do either may confuse and may even mislead a jury.

3. Of course it is permissible, and sometimes desirable in an appropriate case, to tell the jury:

1. that in ascertaining the defendant's intent they are drawing an inference from facts which they find established by the evidence concerning his or her state of mind;

2. that those facts may include the circumstances in which a relevant event occurred, the conduct of the defendant before, at the time of or even after that event and what the defendant has said at any of those times;

3. and that intent need not necessarily be long standing;  it may be a momentary intent formed immediately before the occurrence of a relevant event.

4. But in giving directions of that kind the trial judge is not attempting to define or elaborate upon the meaning of intent but rather to explain how the jury may infer intent especially when, as would ordinarily be the case, a defendant did not state his intent to do an act or make an omission prior to the occurrence of that act or omission.

5. JERRARD JA:  On 24 March 2000 Michael Christopher Greer and David Lance Qualischefski were walking on the Esplanade at Manly at about 11.30p.m. that night.  They walked by a table occupied by the appellant Glebow, his younger brother Raymond who was celebrating his 18^th birthday, a Clinton Earl, and a female. At least the male members of that latter group had been drinking alcohol since at least 7.00p.m., and were adversely affected by it.  Raymond Glebow accused Mr Greer and Mr Qualischefski of being “faggots”, and Clinton Earl assaulted both of them by punching each in the face at least once.  The appellant Gregory Glebow punched Michael Greer, and when Michael Greer was lying on the ground repeatedly kicked Michael Greer’s head.  He did so even after Raymond Glebow had said words to the effect “he’s had enough, let’s go”.  Michael Greer died on 24 December 2000, and the appellant Glebow was convicted of his murder after a five day trial that ended on 4 March 2002.  He now appeals against that conviction. 

6. The appellant had pleaded guilty to a charge of assault occasioning bodily harm of Qualischefski while in company. Clinton Earl was convicted by the jury of the manslaughter of Michael Greer and of assault occasioning bodily harm to Mr Qualischefski while in company. Raymond Glebow was acquitted by the jury of all charges arising from the death of Michael Greer and the assault on David Qualischefski.

7. The record shows that the appellant had entered a plea of guilty to a charge of doing grievous bodily harm to Michael Greer. Consistent with that plea, the outline of submissions made on his behalf in his appeal concedes that there was ample evidence on which the jury could find that the appellant was the person directly responsible for causing the head injury that resulted in Mr Greer’s death. Mr Greer had suffered a severe closed head injury as a result of the entirely unprovoked attack made upon him on 24 March 2000, and his death on 24 December 2000 resulted from a pulmonary embolism i.e. blood clots in his lungs. He had been released on leave from quite intensive care on 23 December 2000, and was then walking with the assistance of a four legged frame. The medical evidence at the trial, clearly accepted by the jury, was that it was the immobility resulting from the closed head injury which caused the formation of the blood clots that were the immediate cause of his death.

8. The appellant does not challenge on this appeal the conclusion, overwhelmingly available on the evidence, that he was the person who had kicked and repeatedly kicked Mr Greer in the head, nor the conclusion obviously drawn by the jury that those actions significantly or substantially contributed to the death^[1].  The complaint made in his appeal is that the jury could not have been satisfied beyond reasonable doubt that he intended to cause either the death of Michael Greer, or to cause to Michael Greer grievous bodily harm.  While the outline of argument concedes that the matters proved in evidence in the trial may have been sufficient to allow a properly instructed jury to infer the requisite intent, the appellant argues that the learned trial judge:

“Should have adequately explained to the jury the legal concept of criminal intent and forensic process of reasoning involved in properly inferring that crucial state of mind in a murder case”.

9. The evidence in the case was in short compass. Mr Qualischefski had identified the appellant as the person who repeatedly kicked Michael Greer, and so did the then accused Raymond Glebow when he gave evidence. Raymond Glebow’s evidence, of having witnessed Gregory Glebow repeatedly kick Michael Greer’s head, was not challenged by Gregory Glebow’s counsel. Medical evidence called by the prosecution described Mr Greer’s condition when admitted to the intensive care unit at the Princess Alexandra Hospital in the early morning of 25 March 2000. This was that Mr Greer was deeply unconscious, had bilateral hematomas, other facial bruising, diffuse bruising to the abdomen, and the closed head injury earlier described (an injury to the brain), the infliction of which would have required the administration of significant force to his head.

10. A witness living nearby had observed a group of three agitated men (apparently the three accused immediately after the assault), and that one of them was “shadow boxing”. While doing that he was repeatedly calling out words to the effect:

“I king hit him.  I don’t know if I’ve killed him, what do you reckon Raymond?  Have I fuckin killed him?”

That last question was repeatedly asked of “Raymond”.  There seems little doubt the appellant Glebow was the speaker.

11. Another witness described Mr Glebow’s group as noisy, before the attack which was made upon Mr Greer and Mr Qualischefski. When it finished Mr Glebow’s group took their esky and left. The entire incident involving the assaults was over quickly, and began and ended with the two men attacked being described as “faggots”. As they walked along the esplanade, one of the male members of the Mr Glebow’s group was quite verbally aggressive to some passers-by. The evidence shows that all three men were verbally or physically aggressive at the time of the assaults, and they were verbally abusive and aggressive to the police officers who detained them a little later and early in the morning of 25 March 2000, two or three kilometres from the site of the attack. All three men denied to the police, when individually questioned, that they had taken part in any assault that night.

12. The learned trial judge directed the jury that before it could find the appellant guilty of murder, it would have to be satisfied beyond reasonable doubt that the prosecution had proved he intended to kill Mr Greer, or to do him grievous bodily harm. The learned judge directed the jury that intention is a state of mind, and where, (as was commonly the case), there was no direct evidence of the existence of the necessary intention, it may be able to be inferred from facts which had been proved beyond reasonable doubt. The judge further directed that where circumstantial evidence only was relied on to prove murder, then the existence of the relevant intention must be the only inference reasonable open on the evidence which the jury accepted.

13. The learned judge directed the jury with care as to the burden of proof being on the Crown in respect of the specific intent it was obliged to prove, and as to the relevance of intoxication. No complaint is made now about the directions on intoxication, and none was made at the trial. The jury was directed that if not satisfied beyond reasonable doubt that the appellant was capable of forming the requisite intent to kill or do grievous bodily harm, then he must be acquitted; and likewise if the jury was satisfied that though capable of forming the requisite intent, he did not form it owing to his degree of intoxication, he must also be acquitted.

14. The court adjourned for the weekend after those directions on intent and intoxication had been given. The learned judge inquired whether any counsel wished to raise matters before adjourning, and none did. When the learned judge resumed giving directions the next Monday, the direction was repeated that intention is a state of mind; and the jury were reminded by the judge of the discussion on the Friday about how intent might be inferred. The judge then, in the course of further directions, reminded the jury of the submissions made, and of the evidence pointed to by each party regarding proof or disproof of the crucial intent.

15. The jury was reminded of the submission by the prosecution that intention was something which could be inferred from the degree of violence that was used, and in particular the kicking. They were reminded of the submission that other matters also relevant to the question of intention included:

• Whether any remorse was shown;

• Whether any assistance was given to the injured party;

• The continued aggressive conduct by the three accused as they moved down the esplanade, and away from the site of the assault.

16. The jury was also reminded of the submissions made by counsel for the appellant. These included that had his client kicked the deceased’s head hard and repeatedly, the jury would have expected more blood on the appellant’s shoes and trousers than was actually found. What was found was only that his left shoe was stained with Mr Greer’s blood. The submission made by counsel, and of which the jury was reminded, was that in the circumstances where there was less blood than counsel submitted might be expected, the jury should not infer the existence of the intent to kill.

17. The jury was then reminded of the argument made by counsel that, since the appellant was wearing joggers and not more solid footwear, then from his kicking the deceased’s head in those circumstances the jury should not find that the appellant intended to cause any serious disfigurement to Mr Greer, or any permanent injury to his health. The jury was likewise reminded that counsel had pointed to the fact that there were no statements made by the appellant which might support an intention to kill or inflict serious harm upon Mr Greer, and of the submission made that the statement overheard (“have I fuckin killed him”) showed not that Mr Glebow was bragging about what he had done, but rather was in a state of anxiety about it. Likewise, the jury was reminded of the brief duration of the attack, and that no weapon was used during it.

18. After those directions the jury was asked to retire and consider their verdict. No redirections were sought by any counsel on the topic of intent. It was an issue that equally affected the appellant and his co accused, and their counsel who appeared at the trial had a wealth of experience in both appearing to prosecute and to defend. The jury subsequently sought further directions on topics specified by the jury, but not on the nature or proof of intent; and although two opportunities thereby arose in which counsel might have sought further directions on that matter, none did.

19. The record of proceedings and the summing up by the learned judge shows that both the prosecution and the defence accepted at the trial that the existence or absence of the necessary intent was a matter which could be inferred from the evidence. There seems to have been in truth very little contest about any relevant fact. Neither party complained of any inaccuracy or unfairness in the directions given, which reflected the approach common to all counsel in the trial, namely that whether or not the appellant had formed a particular intention, and its nature, could be inferred from the proven circumstances. The circumstances relied on by each party were explained to the jury. The critical circumstance was that the appellant repeatedly kicked another inert person in the head.

20. The directions on proof of intent given by the learned trial judge were both common sense ones, and were supported by authority. In R v Willmot (No. 2) [1985] 2 Qd R 413, Connolly J warned that when giving directions to a jury elaboration or paraphrase of what was meant by “intent” (in s 302(1)(a)) should be avoided.  The learned judge added that the jury should, of course, be told in appropriate cases that intention is not the same as motive or desire; and that they should also be told that they are to decide whether the relevant intention alleged is established on the whole of the evidence. 

21. DM Campbell J wrote a separate judgment in that case, but did not appear to disagree at all with those particular observations of Connolly J. Moynihan J agreed with the reasons of both DM Campbell J and Connolly J. Nothing in the directions given by the learned trial judge in this case offends in any way against those particular observations of Connolly J.

22. Connolly J also observed in R v Willmot that the ordinary and natural meaning of the word “intends” is, to have in mind; and that what is involved is the directing of the mind, having a purpose or design.   As conceded by counsel for the appellant, the jury would have been entitled on the evidence described to be satisfied beyond reasonable doubt that the appellant at the very least meant or had in mind to cause grievous bodily harm to Mr Greer, and had directed his mind to that result, he having it as a purpose or design.  What the directions of the learned trial judge  had to make clear was that the jury had to be satisfied that the necessary intent did exist; and that direction was repeatedly given throughout the summing up.

23. The interesting argument made by the appellant’s senior counsel is that the jury should have been advised that although intention is ultimately a subjective state of mind, ascertaining it usually involves an initial objective process of reasoning. It was submitted that the first question for the jury to ask itself was what would have been in the mind of an ordinary person who did what the appellant did and said, and then the jury should consider whether there was any reason why the appellant’s own state of mind might have been different, for example because of intoxication, lack of awareness, or his having some other purpose in mind. I consider the danger involved in giving directions of that sort is that it requires the jury to focus first on the mind of an ordinary person, and thus to apply what might be called an objective test, and then upon whether any reason exists why that test should not apply to the particular accused. That seems to me to be the opposite of what the jury was required to do, namely to determine from the facts established in evidence whether it could conclude beyond reasonable doubt, and excluding any other inference, that Mr Glebow intended to kill Mr Greer or do him grievous bodily harm. Mr Glebow’s subjective intent was the issue, and any other inquiry would potentially mislead. The direction suggested by counsel verges on the misdirection that a person may be presumed to intend the reasonable or natural consequences of his acts^[2].

24. Senior counsel for the appellant also urged that the jury should have been directed that a result is intended when the prospect of achieving it is the reason for doing it, (which senior counsel contended was the approach “favoured by Connolly J” in Willmot); or when its occurrence is an outcome that was foreseen as a moral certainty (said in submissions to be the sense preferred by DM Campbell J in Willmot).  In Willmot DM Campbell J did describe the then law in the United Kingdom as being that a person intended the consequences of a voluntary act either when the person desired it to happen, (whether or not that person foresaw that it would probably happen), or when that person foresaw the overwhelming probability of the event happening, whether that person desired it or not.

25. DM Campbell J did not expressly embrace that latter alternative method of describing the required proof of intent. Directions as to the foresight of the probability of a result occurring, or the overwhelming probability, or its occurrence as a moral certainty, all contain the risks identified in the judgment of Connolly J in R v Willmot of effectively introducing the common law concept of malice aforethought into the Criminal Code.  Directions that achieved that result would be an error of law.  Mr Glebow was not charged with having unlawfully killed Mr Greer when foreseeing as probable or overwhelmingly probable, or as a moral certainty, that he would kill Mr Greer or cause him grievous bodily harm.  He was charged with unlawfully killing him when intending to do so, or when intending to cause him grievous bodily harm.  I do not think Mr Glebow lost any chance of acquittal properly open to him by reason of the trial judge having not directed the jury in terms of foresight of the moral certainty, or of the overwhelming probability, or of the probability, of grievous bodily harm or death occurring.  One infers that neither did the experienced counsel at the trial. 

26. The directions suggested by senior counsel, namely that the jury be told a result is intended when the prospect of achieving it is the reason for doing it, or when its occurrence is an outcome that was foreseen as a moral certainty, also have the defect of being very close to the directions of the learned trial judge in R v Hughes (1994) 76 A Crim R 177, which this court held on appeal were a misdirection.  In that matter the learned judge had attempted to assist the jury with the explanation that an intention to kill or do grievous bodily harm:

“….depends upon the foreseeability of the consequences the desire to produce a result”.  (Hughes at 179)

and

“You may conclude that (the blow on the head) …..might have affected his capacity to foresee the consequences, which is what intention to do something is all about.  As I have said before, it is an intention or desire to cause a result, some element of foresight of the consequences”.  (Hughes at p 18).

27. All members of this court found fault with those directions. Pincus JA considered those directions might have induced the jury to think that if either foresight of the consequences or a desire to produce a result was shown, that that was enough to establish proof of intent. Pincus JA clearly considered a misdirection.^[3]

28. Davies JA wrote that the jury could have been misled by those directions into thinking that if the Crown proved capacity to foresee the consequences it proved the relevant intention. His Honour wrote that although foresight of the consequences may be evidence from which intention may be inferred, the capacity to foresee them is not sufficient.^[4]  Davies JA also reminded that desire is not an element of intention, and that intention is a plain English word, and attempts to paraphrase it can lead to confusion and occasionally to a jury being misled.

29. Cullinane J held that while no doubt a desire to bring about a particular result is a relevant consideration when considering the question of whether an intention existed, it cannot be elevated to an element of intention. His Honour held that similarly foresight, foreseeability, and the capacity to foresee are all relevant considerations when considering whether an intention existed in fact. However, proof of all or any one of these, even if accompanied by desire to produce a result, cannot be equated with proof of intention. Like Pincus JA, Cullinane J clearly considered the directions actually given a misdirection.^[5]

30. The submissions of the appellant’s counsel included that this court might be a little more adventurous about assisting trial judges in directions which will in turn assist juries with their difficult task of establishing if a relevant intention is established. I think the weight of appellate authority in this court positively, and for the very good reasons explained in those authorities, discourages trial judges from volunteering to the jury any paraphrase of the meaning of intention where no assistance on that has been sought.

31. When jurors do ask for assistance on the point, trial judges will find helpful the suggested further direction in footnote 3 of the Supreme and District Courts of Queensland Bench Book to this effect:

It may sometimes be useful to tell a jury that intent denotes premeditation, that the prosecution has to prove that the defendant had the necessary intention at the time of the alleged offence, that it need not have been a long standing intent, and that it is sufficient for it to have been formed in a matter of seconds, say in a sudden flash of temper.

Judges may also find assistance in the description by Connolly J in R v Willmot that the ordinary natural meaning of the word includes to “mean” or “have a purpose or design”, and the observation of Barwick CJ in Ianella v French (1976) 119 CLR 84 at 95 that intention connotes an element of purpose.

32. In the circumstances I am satisfied that the appeal against conviction should be dismissed.

33. MACKENZIE J:  I agree that the appeal should be dismissed.  As Connolly J observed in R v Willmot (No 2) [1985] 2 Qd R 413, 418, it is not only unnecessary but undesirable to set about explaining an ordinary and well understood word in the English language in directing a jury on intent. 

34. Where a particular intent is an element of an offence, the inquiry by the jury must focus on whether the accused actually had that intent at the time the relevant act occurred. The nature of the act or acts done by the accused is often a critical factor in such an inquiry since, in the absence of circumstances suggesting otherwise, an inference that the person had the necessary intent will be easily drawn to the appropriate standard because of their nature.

35. In a sense, that involves a perception that, in the absence of factors weakening the inference, a person doing those acts must inevitably have had the relevant intention. However in my opinion it would not be correct nor helpful to structure the direction in a form that starts with an instruction to the jury to consider what would have been in the mind of an ordinary person who did what the accused did and then tells them to consider whether there was any reason why the accused’s state of mind might have been different because of some personal characteristic, or because he or she had some other purpose in mind.

36. Most commonly, the existence of intention is determined circumstantially. Segmenting the direction in the way suggested is likely to confuse rather than assist a jury in going about its deliberations. The matters to which Davies JA refers are in many cases appropriate directions since they will direct the jurors’ minds to factors upon which they should focus in deciding whether intention exists in a particular case.

37. I agree with the orders proposed.