R v Middleton[2003] QCA 431

SUPREME COURT OF QUEENSLAND

[1]  THE COURT:  The appellant was convicted, following a trial of the offence, that on 22 June 2002 he murdered Jessie William Horne.  Horne died from the effects of a stab wound to his neck inflicted in the course of a scuffle at an hotel in Barcaldine.  It was common ground that only the deceased and the appellant were involved in the scuffle and that it was the appellant who effected the stabbing.

[2] The issues raised for the jury’s consideration were whether the appellant had acted in self-defence; whether the prosecution had proved the element of intent to kill or to do grievous bodily harm; and whether the appellant’s actions were taken in response to the deceased’s provocation.

[3] By this appeal, two points are raised:-

(1) whether the learned trial judge erred in refusing an application for the jury to be discharged soon after the commencement of the trial;

(2) whether the learned trial judge erred in his summing-up on the effect of intoxication for the purpose of s 28(3) of the Criminal Code.

Failure to discharge the jury

[4] After 12 persons had been selected to act as the jury, the learned trial judge enquired in the usual terms as to whether any of them was unable to act impartially.  Juror number three responded that she could not, informing the court from the jury box in the following terms –

"I am a motelier here in Longreach and on the last occasion that this gentleman appeared in court he was staying at our motel.  One morning when I was down at the laundry he was having quite a loud verbal abuse to the lady that is sitting over the other side there and I believe that I have an opinion that shouldn’t interfere."[1]

[5] His Honour discharged the juror and another juror was then selected from the awaiting panel.

[6] The manner in which the juror expressed herself cannot be gauged from the record but it was clearly done emphatically.  Counsel for the appellant, immediately after the first adjournment, made an application for the whole jury panel to be discharged.  He made the point that it was not just the words used by the former juror, but "her clear indication by pointing that she was talking about my client and someone who at least some of the jury might think was a member of my client’s family".[2]  The learned Crown prosecutor said in his response:

"Your Honour, my first impression of it was a little bit more harsh than what the transcript revealed and I think in the circumstances – at the highest, she indicated there was an argument between himself and a family member…"[3]

[7] Counsel for the defence, at trial, relied upon this concession to assert that the impact “isn’t fully conveyed by the words in the transcript but by the juror’s actions and the immediacy of her response in wanting to be discharged”.

[8] The learned trial judge correctly identified that the trial would centre upon the actions of the accused and the deceased in a physical altercation and would give rise to questions of intent and the defences available under the Code.  His Honour made the following finding:-

"In those circumstances it doesn’t seem to me that the fact that this particular defendant was involved in a verbal argument with somebody on the occasion of his being in town for a court appearance, presumably the committal proceedings, is such as is likely to taint the proceedings such that they ought to be now discontinued with the present jury.  In those circumstances the application is refused."

[9] Can it be said that his Honour’s assessment of the impact of the juror’s statement was wrong and that the exercise of his discretion miscarried?  The test to be applied was considered in Crofts v The Queen.[4]  The judgment of the majority (Toohey, Gaudron, Gummow and Kirby JJ) has the following passage:-[5]

"No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial effect that occurs during a trial.  The possibilities of slips occurring are inescapable.  Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact.  As the court below acknowledged, much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading the transcript.

Nevertheless, the duty of the appellate court, where the exercise of discretion to refuse a discharge is challenged, is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind.  The appellate court must also decide for itself whether, in these circumstances, the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice."

[10]  To similar effect (although leading to a different conclusion in the case) are the remarks of Dawson J[6] that a "high degree of need for such discharge must appear before a discharge will be ordered".

[11]  Counsel for the appellant argues that, if the information known to the juror and then communicated to the other jurors was “sufficiently serious” for her to be discharged, then it was similarly serious for the other members of the jury also to be discharged.  In short, the appellant argues that no meaningful distinction could be made between the one juror and the others.

[12]  There is undoubtedly a difference between one being an actual observer to an incident and having merely been told about it later.  For that reason, we do not accept that the impact on each juror's capacity to be impartial was of the same level of seriousness.

[13]  But it is the seriousness of the remaining jurors hearing of the comment in the context of the contested issues which needs to be assessed here.  The appellant contends that the former juror's comment impacted adversely on the remaining jurors' consideration of these defences but the respondent argues that the conduct referred to by the former juror bore no similarity or relevance to the conduct which was the subject of the trial.  The incident at the motel was not related to nor even similar to the conduct leading to the appellant being charged.  The information conveyed by the former juror being simply of a verbal argument, probably of a domestic nature, could not be said to be "serious in the context of the contested issues" which the jury had to resolve. 

[14]  The majority in Crofts also points to the significance, where there is a challenge to the exercise of the trial judge's discretion to refuse a discharge, of "the stage at which the mishap occurs".  Here, the jury learnt of the incident before the trial had even begun.  Its prejudicial effect, in our view, was limited by the fact that it was simply a reference to a verbal argument between family members.  Whatever its prejudicial effect, the learned trial judge's directions to the jury to have regard only to the evidence and to dismiss "all feelings of sympathy for or prejudice against the defendant or anyone else"[7] would overcome that effect.

[15]  The ultimate question which the appellate court must decide is "whether, in these circumstances, the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice".[8]

[16]  For the reasons mentioned above, the seriousness of the former juror’s statement in the context of the contested issues is of a low order and not likely to have been acted upon in the light of the trial judge’s instruction.  We are satisfied the learned trial judge has correctly exercised his discretion and there has not been occasioned any risk of a substantial miscarriage of justice.  Consequently, in our view, this ground of appeal must fail.

Directions on intoxication

[17]  There was clear evidence that the appellant had been drinking over a period of some hours before the fatal stabbing.  According to the witness Mr Curtis, who was the bar attendant for much of the period, the appellant was at the bar at 4 pm when the former commenced his shift.  Thereafter, Mr Curtis served the appellant mid-strength beers throughout the course of the afternoon and evening.  Apart from a period of 15-20 minutes, the appellant remained at the bar for the whole of the period up to the incident which occurred at approximately midnight.  Despite the length of the appellant’s drinking session, Mr Curtis's observation of him was that "he seemed OK", but that his demeanour changed after a conversation with the deceased shortly before the incident.  There was no evidence as to how much alcohol the appellant consumed and he was not tested for blood alcohol levels.

[18]  Different police officers gave evidence that he showed no indicia of the adverse effects of alcohol.  This notwithstanding, a medical officer could detect the smell of alcohol on the appellant when he spoke to him about two hours after the incident.  The evidence going to the level of the appellant's intoxication was thus quite limited.

[19]  To convict of murder the jury had to be satisfied beyond reasonable doubt of the appellant's intention to cause death or to do grievous bodily harm.  For the purpose of ascertaining whether such an intention existed, the matter of the appellant’s intoxication whether complete or partial, whether intentional or unintentional, has to be "regarded" within the meaning of s 28(3) of the Criminal Code.

[20]  The appellant alleges that the learned trial judge in his summing-up gave undue emphasis to the appellant’s capacity to form, as opposed to his actually having formed, the relevant intention.  The appellant argues that upon the evidence it was all but inevitable that the jury would conclude that the appellant had the capacity and that his Honour’s directions elevated the issue of capacity to the extent that the true issue of the actual formation of intent was overshadowed.

[21]  The topic was touched upon at various points in the summing-up.  The latter was delivered in two stages – the main part during one afternoon, the remainder on the following morning at which time the earlier directions given were recapitulated.  As a result, the various directions on intoxication were not formulated in precisely the same terms.

[22]  Nonetheless, for the respondent, Mr Copley of Counsel argued that the summing-up, in its entirety, identified all the matters enumerated by Philp J in R v Nicholson[9] and also complied with those addressed by Gibbs J in Viro v The Queen.[10]

[23]  The learned trial judge introduced the relevance of intoxication "to the question of whether or not Mr Middleton was capable of forming the relevant intention".[11]  After canvassing the evidence, his Honour then gave a direction in the following terms:-

"If you are not satisfied beyond reasonable doubt that he was capable of forming such an intention and did in fact form that intention, then you must find him not guilty of murder on that basis."[12]

[24]  The direction in those terms is unexceptional and, indeed, correct insofar as it emphasises the need for the jury’s satisfaction as to the accused's having actually formed the requisite intention.  Thereafter his Honour continued with an explanatory comment, which is often included in such directions.  The transcript records his concluding words as follows:-

"So if you are satisfied that he had the capacity to form an intention, then intoxication plays no other part in your consideration."[13]

[25]  Such a statement, assuming the correctness of the transcript, is clearly wrong and was conceded by the respondent to be so.  But the record continues:-

"It is of course for the prosecution to satisfy you beyond reasonable doubt that although intoxicated, the defendant did in fact have this requisite intention."[14]

This statement refocusses the jury’s attention on the correct question it had to determine.

[26]  During his Honour’s recapitulation next morning he listed the competing contentions going to the issue of the appellant’s intention at the time of the stabbing and included, in that list, the consumption of alcohol as it bore upon the appellant’s capacity to form an intention.  Elaborating upon this, his Honour again discussed the evidence going to the level of intoxication and concluded with these remarks:-

"If you are left with a reasonable doubt as to whether [the appellant] actually meant to kill [the deceased] or cause him a life threatening injury as opposed to acting without any real thought as to the consequences, or was incapable of forming the intention, then you would find him not guilty of murder but guilty of manslaughter."[15]

[27]  The only link the words “incapable of forming the intention” could have, on the evidence, is to the appellant's consumption of alcohol.

[28]  Left in that form, the direction does not express the purpose of s 28(3) of the Code which provides that the level of a defendant’s intoxication "may be regarded" for the purpose of ascertaining whether such an intention was proven to exist.  The point was made by McPherson JA in R v Batchelor[16] where he said:-

"There are some authorities that suggest that in directing a jury on s 28(3) the judge will ordinarily say that, if satisfied that the accused was so intoxicated as not to be capable of forming the requisite intention, then the jury must acquit.  As a matter of fact or inference, that must necessarily be so.  For if, at the time, the accused was incapable of forming the intention to cause the relevant specific result, then he cannot have formed it in fact.  But the question posed by s 28(3) remains one of whether, despite the effects of intoxication, the intention was formed rather than whether it was capable of being formed.  Reference to the accused’s capability to form it is perhaps one way of conveying the point to the jury, but it is not in law either a critical or essential, nor even a sufficient, direction under s 28(3)."

[29]  When s 28(3) arises for consideration, there is perhaps no problem in taking in a two step approach – determining, firstly, whether the defendant had the capacity to, and, secondly, whether the defendant did in fact form the intention.  The purpose of the sub-section is in our view better served by focussing only on the question of whether the defendant did in fact form the intention, any concern about "capacity" being subsumed in that enquiry.

[30]  In this case, the various directions both correctly and incorrectly identified the issue for the jury.  Were the directions left as enunciated in the first part of the summing-up the balance would, in our view, favour not interfering.  But the incorrect formulation of the direction during his Honour’s recapitulation, shortly before the jury’s retirement, may well have prevented the jury’s proper deliberation of the issue of whether the prosecution had proven the defendant acted with the relevant intention.

[31]  In these circumstances, despite the limited evidence as to the level of the appellant's intoxication, it seems to us that the conviction should be quashed and a new trial should be ordered.  The appellant is remanded in custody until further order of the Court.