SUPREME COURT OF QUEENSLAND

[1] WILLIAMS JA:  The circumstances giving rise to this appeal against conviction are fully set out in the reasons for judgment of Keane JA, and I will not repeat them.  I agree with the reasons of Keane JA that the appeal against conviction should be dismissed, but I add some brief observations of my own. 

[2] All the evidence, apart from that given by the appellant, suggested that at all times the appellant was the aggressor.  The appellant's evidence that he was under attack and acted in self-defence is not supported by the independent eye witness, Sutton.  In those circumstances the jury was clearly entitled to reject the appellant's assertion that he only acted in self-defence.

[3] That left the issue of intention as the critical matter for the jury's consideration.  In the summing up the jury was told that in considering what the appellant's intention was at the material time they could have regard to his conduct at about the time of the incident, statements made by him at the time, and his evidence as to his state of mind.  In the latter regard the jury was directed that intention might be inferred from the "evidence concerning his state of mind".  It is true that the learned trial judge did not specifically draw the jury's attention in the course of the summing up to that passage in the appellant's evidence quoted by Keane JA in [22] of his reasons, but that is not something which the jury could have overlooked given the general direction.

[4] Whilst the jury were clearly entitled to reject self-defence, it may well be that the appellant wrongly perceived himself to be under threat of attack.  If the jury considered that to be the case, then the question of intention would have to be addressed in those circumstances.  Given that he wrongly perceived himself to be under attack, nevertheless did he have an intention to kill?  The passages from the summing up quoted by Keane JA to my mind directed the jury's attention to all relevant aspects on the issue of intention and there was ample evidence on which a jury could have been satisfied beyond reasonable doubt that the appellant stabbed with the intention to kill. 

[5] I also agree with Keane JA that the application for leave to appeal against sentence should be dismissed.  The appellant's criminal history, particularly previous offences involving the use of a knife, distinguish this case from others where a lesser sentence had been imposed for attempted murder.

[6] I agree with the orders proposed.

[7]  KEANE JA:  On 11 August 2005, the appellant was convicted after a trial by jury in the Supreme Court of Queensland on one count of attempted murder.  There was an alternative count of intentionally doing grievous bodily harm.  On 16 August 2005, he was sentenced to 15 years imprisonment and the offence of attempted murder was declared to be a serious violent offence.  The appellant pleaded guilty to a number of less serious offences and was sentenced to shorter concurrent terms of imprisonment, with 410 days being declared as time served. 

[8] By notice of appeal filed on 26 August 2005, the appellant sought to appeal against the conviction for attempted murder on the ground that the "jury's verdict is, in all of the circumstances, unreasonable".  The appellant also sought to appeal against the sentence on the ground that it is "manifestly excessive". 

[9] The appellant was unrepresented when the matter came on for hearing on 9 March 2006.  The Court adjourned the hearing to enable the question of legal aid for legal representation of the appellant to be further considered.  The appellant was ably represented by Mr Rafter of Senior Counsel at the hearing of the appeal on 11 May 2006.

[10]  The appellant now seeks to agitate two further grounds of appeal against the conviction.  They are that:

(a) the learned trial judge failed adequately to direct the jury in relation to the issue of intention to kill; and

(b) the learned trial judge failed adequately to distinguish the issues of intent to kill (which arose in respect of count 1) and intent to do grievous bodily harm (which arose in respect of the alternative charge, count 2) in the event that the jury rejected self-defence.

[11]  I propose to discuss the appellant's grounds of appeal in turn, but first it is necessary to summarise the evidence at the trial which bears upon these issues.

The Crown case at trial

[12]  The case for the prosecution was that at about 10.20 pm on 3 July 2004 in Ruthven Street, Toowoomba, the appellant stabbed the complainant, Mr Matthew Inwood, in the lower abdomen with a bowie knife.  The knife had a 12.5 cm blade.  The appellant had been carrying the knife in his pocket. 

[13]  The appellant thrust the knife into the complainant's abdomen up to the hilt.  The complainant suffered lacerations to his abdominal wall.  The knife penetrated his colon and dissected a kidney.  His life was endangered by his wounds, and he was only saved by emergency treatment.  He underwent six operations.  His damaged kidney was removed, as was part of his colon.  He spent over three months in hospital.  Further treatment may be required.

[14]  Mr Inwood gave evidence that, on the evening when he was injured, he and his companions, Jeremy Binge and Paul Milliken, were sitting drinking beer near the Shamrock Hotel when the appellant joined them.  They had been drinking for some time, and were affected by alcohol.  The appellant was unknown to the complainant.  An amicable conversation ensued.  Milliken bought some more beer from the hotel and the group walked off down the street.  The appellant asked the complainant and his companions for cigarettes.  The complainant refused the request saying that the appellant had his "own smokes".  They walked on and the appellant threw a bottle of beer at the complainant's face.  The bottle hit the complainant's hands.  The complainant then felt pain and saw the appellant pulling a knife out of him.  The complainant then passed out.

[15]  Binge said that he had not met the appellant before.  He said that after he, Milliken and the complainant were refused entry to the Shamrock Hotel, the appellant joined them.  They chatted for half an hour before walking off down Ruthven Street.  Binge borrowed the appellant's jacket because it was cold.  The appellant asked Binge for a cigarette, but he had none.  He thought Milliken gave the appellant a cigarette.  The appellant then mumbled to himself, pulled out a knife from his hip and swung it at the complainant but missed.  He then stabbed the complainant with a jabbing motion in the stomach.  The appellant then came at Binge saying:  "You want some? … I'll take you out too."  He also said:  "I'll kill you too, you black motherfucker".  Binge fled and the appellant chased him.  Binge succeeded in evading the appellant for a while, but the appellant saw him again and chased him again.

[16]  Milliken also said that he had not met the appellant before the night in question.  He said that he was playing his guitar when the appellant joined the group.  After about five minutes, the group started walking down Ruthven Street.  The complainant and Binge were walking together.  Milliken said that he saw the appellant throw a bottle down.  The appellant appeared to become annoyed and asked for cigarettes.  He told the complainant and Binge that if they did not give him a cigarette:  "I'll fucking kill youse."  He saw the appellant stab the complainant under the rib cage.  Milliken said that Binge told the appellant to calm down and that the appellant then chased Binge up the street while Milliken stayed with the complainant to help him.  Mr Milliken said that he was not affected by alcohol.

[17]  Mr Paul Sutton, who happened to pass the complainant and his companions in Ruthven Street, said that initially the four seemed to be "in good spirits".  They were carrying alcohol.  He then saw one of them drop a bottle, and then appear to be punched by another man twice.  This incident occurred on the footpath.  He said that the recipient of the punches had not advanced on the aggressor.  Mr Sutton admitted that he was affected by alcohol at the time of the incident in question.

[18]  Mr Ian Tennent, on the night in question, was in Margaret Street looking towards Ruthven Street.  Mr Tennent saw the appellant and mistook him for an acquaintance.  Mr Tennent suffered from a schizo-affected disorder:  he said that his mistaking of the appellant for an acquaintance was "part of" his delusion.  Mr Tennent called out to the appellant who came over and spoke to him.  The appellant said that he had been to the Shamrock Hotel and thought his drink had been spiked.  He said that "he thought his mate - that he thought was his mate wasn’t his mate at all and he'd stabbed someone".  The appellant showed Tennent the knife he had used.  Tennent then saw the appellant run off chasing a man on the other side of the street.  Mr Tennent went back into a restaurant where he had eaten his evening meal and called the police.

[19]  Police officers apprehended the appellant shortly afterwards.  The appellant gave police a false name.  He denied being involved in a fight and he denied being in possession of a knife.

The appellant's case at trial

[20]  The appellant gave evidence that the complainant called him into a car park adjacent to the Shamrock Hotel, and shook the appellant's hand.  He said that the complainant offered to fight him, and that he declined.  He saw two other persons in the car park to whom he introduced himself.  He said that he sat down and chatted to all three men for about half an hour during which time the complainant threatened him twice and offered to fight him twice.  The appellant said that Binge said that he was there to back the complainant up.  The appellant said that, not wishing to fight, he thought that the best course was to try to "befriend" the other men.

[21]  The appellant said that after Milliken went to get more beer, Binge demanded one of the appellant's jackets.  The appellant gave him one of the two jackets he was wearing.  He said that the complainant, Binge and he walked off down Ruthven Street and Milliken caught up with them.  He said that he heard the complainant say that he was going to get him.  He turned towards the complainant, thus leaving Binge behind him, and the complainant advanced on him with a clenched fist saying "me and you".  The appellant said that he was aware Binge was behind him, and that he walked backwards and threw a bottle onto the ground smashing it and saying:  "Do not come past the bottle, I have a knife."  As he said this he brandished the knife, which he often carried, at the complainant.

[22]  The appellant said that the complainant kept on advancing upon him and that the appellant retreated to the middle of the street.  He said that when the complainant came close enough he stabbed him because he was in fear of his life.  He said that he feared that, if he fought the complainant, Binge would have joined in and they would have knocked him down and kicked and bashed him.  The appellant said that he did not intend to kill the complainant.  In his evidence-in-chief, the following was said:

"what did you think would happen to you as a result of getting kicked and bashed?--  I thought I would die.

Did you intend to kill him?--  No.

Did you intend to wound him with the knife?--  No, I didn’t even think he'd approach me.

Why did you do what you did?--  Just try and stop them attacking me."

[23]  In cross-examination, the appellant acknowledged that he had never met the complainant before the night in question, that he later hid the knife, that he lied to police about his name and that he did not call out for help even though there were other people in the street.  In the appellant's cross-examination, the following exchange occurred:

"… I suggest you actually plunged the knife into him as hard as you could?--  As he was running at me.

I suggest you plunged it into him as hard as you could?--  Yeah, as he was approaching me, yes.

So hard that it actually pushed his belly in so that the knife went in even further?--  I'd say his belly did push in, 'cause he was coming at me as I jabbed at him, and I was standing still. 

See, I suggest you were trying to kill him?--  No.  He was right in front of me.  I could have stabbed him several times."

Was the verdict reasonable?

[24]  The issue here is whether, on the whole of the evidence, it was open to the jury acting reasonably to be satisfied beyond reasonable doubt of the appellant's guilt.[1]  In my view, the answer to that question is clearly in the affirmative.

[25]  Insofar as the appellant sought to advance a case of self-defence, the appellant's evidence was inherently improbable and the jury were entitled to reject it.  The appellant had never met the complainant before.  There was no history of animosity which might render plausible the aggression which the appellant asserted that the complainant displayed towards him.  Had he wished to avoid the complainant's aggression when it was first manifest, he could simply have walked away.    The jury may also have thought it significant that the appellant did not call out for help.   

[26]  It is said on the appellant's behalf that, having regard to the state of intoxication of the principal Crown witnesses, the jury could not reasonably have accepted their evidence.  Mr Inwood conceded that he was "fairly well drunk", but said he could "still remember everything".  Binge denied that he was drunk, but conceded that he was "pretty tipsy".  In this regard, it is important that the appellant's version of the incident was contradicted in significant respects by the evidence of Mr Sutton who, though he admitted he was affected by alcohol, was an entirely independent witness.  According to Mr Sutton's recollection, the appellant's retreat onto the road never happened, and the complainant had not advanced upon the appellant. 

[27]  Further, the appellant's statement to Mr Tennent did not contain any hint that the stabbing was a matter of self-defence.  The appellant's false denials to the police also undermined the credibility of his evidence. 

[28]  While there were some discrepancies between the evidence of the complainant and that of Binge, Milliken and Sutton, the jury were entitled to accept that the common core of that evidence established beyond reasonable doubt that the appellant's attack on the complainant was not a matter of self-defence.  The jury were entitled to regard the differences in their versions as something to be expected where the witnesses had been drinking and the crucial events happened quickly.

[29]  Finally in this regard, the evidence of Mr Sutton supported the recollection of Binge that the appellant struck twice at the complainant.  Mr Tennent's evidence supported Binge's account of the appellant's pursuit.

[30]  The jury were, therefore, clearly entitled to reject the appellant's case of self-defence.

[31]  It is argued for the appellant that the injury to the complainant consisted only of one stab wound, and that this circumstance was not consistent with an intent to kill.  The wound was, however, a deep one estimated at between 15 and 20 centimetres.  It completely divided the left kidney.  It alone was plainly sufficient to kill the complainant.

[32]  It is also argued that the appellant did not know the complainant and so he had no reason to wish to kill him.  It must be said immediately here that the issue of intent must not be confused with the issue of motive.[2]

[33]  The jury were fully entitled to disbelieve the appellant's assertion that the depth of the wound resulted from the complainant's rushing at the appellant.  If the jury disbelieved the appellant in this regard, they were entitled to infer that the wound, plainly apt to kill, was deliberately inflicted.  The evidence of Milliken and Binge as to the appellant's statements of his intention, both before and after he stabbed the complainant, was apt to establish an intention to kill the complainant.  According to Milliken, before the appellant stabbed the complainant, he said:  "I'll fucking kill youse."  The appellant used a lethal weapon, a bowie knife with a 12.5 centimetre blade.  It was pressed home to the hilt.  He then threatened to kill Binge "too", and pursued him for no apparent purpose other than to carry out that threat.  These factual circumstances meant that the appellant could not reasonably be regarded as merely indulging in empty words when he threatened to use the knife to kill Binge "too".  These circumstances afforded ample support for the conclusion that the appellant did intend to kill the complainant even though the Crown established no motive for this vicious act.

The accuracy of the directions on the issue of intent

[34]  In the course of summing-up to the jury, the learned trial judge said:

"It is an essential element of the offence that the defendant had an intent to kill [the complainant] when he stabbed him.  Anything less than an intent to cause death is insufficient.  It is not sufficient, for example, that the defendant was recklessly indifferent as to whether [the complainant] lived or not.  Nor is it sufficient on a charge of attempted murder that the defendant intended to do grievous bodily harm.

Intention is a state of mind.  It is necessarily a matter of inference whether a person had an intent to kill.  So, in ascertaining the defendant's intention you are drawing an inference from facts which you find established by the evidence concerning his state of mind.  Intention may be inferred from the circumstances in which in the present case the stabbing occurred, and from the conduct of the defendant before, at the time of, and after he stabbed [the complainant].  And, of course, the evidence you accept as to what the defendant said at the time about his intention may be looked at.  As I have mentioned, you may draw inferences only from the facts you find proved …

And, importantly, if more than one inference is reasonably open, that is, an inference adverse to the defendant by pointing to his guilty [sic], and an inference in his favour, that is, one consistent with innocence you must give the defendant the benefit of the inference in his favour.  Therefore, you must be satisfied beyond reasonable doubt that the inference of an intention to kill [the complainant] was the only reasonable inference open on the evidence which you accept.

If you are not satisfied beyond reasonable doubt that there was an intent to kill the offence of attempted murder cannot be established and you must find the defendant not guilty of that charge." (emphasis added)

[35]  The trial judge had earlier told the jury that the evidence in the case was the evidence given in the course of the trial.

[36]  The appellant seeks to rely upon the recent decision of this Court in R v Butler[3] in support of a submission that the failure of the judge to refer to the appellant's evidence in which he denied an intention to kill the complainant meant that there was a "very real possibility that the jury did not appreciate that the appellant's evidence was available as a basis for entertaining a reasonable doubt as to whether [he] acted with intent to kill".[4]

[37]  In R v Butler, the defendant had been charged with attempted murder as a result of repeatedly ramming a police vehicle in an attempt, as he said, to kill himself.  The learned trial judge directed the jury on the issue of the defendant's intent that the existence or non-existence of an intent to kill was something which could "only be inferred from surrounding circumstances".[5] (emphasis added)  This direction was reiterated.  The jury were told that they might refer to the evidence of a psychiatrist on this issue, but the jury were not told that the defendant's own evidence as to the absence of the relevant intention was relevant to this issue. 

[38]  In the present case, the trial judge told the jury that intention might be inferred from the "evidence concerning his state of mind".  The jury were not directed that they could not have regard to the appellant's own evidence about his state of mind.  It is true that they were not expressly told that they might have regard to the appellant's evidence in court as opposed to what he said at the time of the stabbing, but the trial judge's direction was not apt to lead the jury to ignore the appellant's evidence in relation to the possibility that he acted without the necessary intent.  In this regard, the trial judge referred in detail to the appellant's evidence as to why he stabbed the complainant, reminding the jury of the appellant's evidence referred to in paragraph [22] above, before telling the jury that they might "only find the defendant guilty if you are satisfied beyond reasonable doubt that he stabbed Mr Inwood intending to kill him".  It may be noted that her Honour did not remind the jury of the appellant's evidence in cross-examination which is set out in paragraph [17] above.  Nevertheless, it is clear that the jury were referred to the appellant's denial of an intention to kill.  In R v Butler, the jury were not referred to parts of the accused's evidence where he had said that he had not intended to kill the police officers.[6]  Most importantly, the trial judge in R v Butler had been emphatic in his charge that intention or absence of intention could be found only from the surrounding circumstances.    

[39]  In my respectful opinion, the jury would not have been led by the trial judge's directions to disregard the appellant's evidence as to why he stabbed the complainant and as to what he intended in that regard.

Adequacy of the summing-up of the appellant's case

[40]  The appellant also complains that the trial judge's directions to the jury did not adequately address the issue of the appellant's intention in the event that the jury rejected the appellant's case of self-defence.[7]

[41]  It may be noted here that the jury sought redirections on the following issues:  "legal definition of the difference between attempted murder and grievous bodily harm" and "what is intent to attempt to murder".  In relation to the issue of "attempt", the trial judge read to the jury the definition of "attempt" in the Criminal Code and elaborated upon the elements of that definition for the purposes of the present case before saying:

"So the critical thing is the intention to kill.  So for the offence of attempted murder, or attempt to murder as you've mentioned it in the note, the critical thing is that the intention is an intention to kill.  No lesser intention is enough.  It must be an intention to kill, that is, to cause death."

[42]  Her Honour then addressed the other issue raised by the jury's note and concluded:

"So a critical issue for you, and you might think, really, that apart from the issue of self defence which goes to the unlawfulness of the stabbing, which is relevant for both offences, and which raises the question of self-defence, apart from that issue, the critical issue, you might think, is intention.  What was the intention of the defendant when he stabbed [the complainant]?  Was it an intention to kill, to cause death?  Or was it an intention to cause grievous bodily harm?

Or was there neither intention, in which case you will - if you are not satisfied beyond reasonable doubt that there was an intention to kill, then you cannot convict the defendant of the offence of attempted murder.

If you are not satisfied beyond reasonable doubt that the defendant had an intention to cause grievous bodily harm when he stabbed [the complainant], you cannot convict of the charge of grievous bodily harm with intent.  But if you consider that self-defence has been excluded beyond reasonable doubt, then it may be open to you, if you find that neither of the previous intentions I've mentioned has been proved beyond reasonable doubt, to return a verdict of grievous bodily harm - of guilty to grievous bodily harm."

[43]  In my view, having regard to this redirection and to the direction excerpted at paragraph [34] above, the trial judge did adequately explain to the jury the necessity for the prosecution to establish an intent to kill, as distinct from mere indifference as to whether or not the complainant died, if the jury found that self-defence was excluded.  The trial judge explained the difference between the intention involved in a charge of attempted murder and one of causing grievous bodily harm with intent to do so.  Her Honour stressed the need for the jury to be satisfied beyond reasonable doubt that the appellant intended to kill the complainant in order to bring in a verdict of guilty on the charge of attempted murder.

Sentence

[44]  The only ground on which the sentence is challenged is that it is manifestly excessive.  It is not suggested that the learned sentencing judge erred in failing to take into account any considerations relevant to the sound exercise of the sentencing discretion.  Nor is it suggested that her Honour took irrelevant considerations into account.

[45]  The appellant was born on 16 January 1978.  He was 26 years of age at the date of the offence and 27 years of age at the date of sentence.

[46]  The appellant has a criminal history involving drug offences and, importantly, offences involving personal violence.  In June 1997, he was given a suspended sentence of one year's imprisonment for trafficking in dangerous drugs.  He breached that sentence on several occasions.  In September 1998, he was convicted of robbery with actual violence.  He was sentenced to three years imprisonment suspended after 15 months.  On this occasion, he held up a bottle shop using a knife.  He was later dealt with for the breach of these two orders and was sentenced to a total of six months imprisonment to be served cumulatively upon the sentence for the robbery, which was re-opened, and the three year term was replaced with a four year term suspended after 18 months for a period of four years.

[47]  In May 2000, he was given a year's probation for breaking and entering.  In March 2001, he was fined for wilful damage.

[48]  In December 2001, he was imprisoned for two and a half years, suspended after one year for four years for attempted arson.  Concurrent terms were also imposed for two offences of common assault, two offences of wilful damage, one count of possession of a knife in a public place, and one breach of a domestic violence order.

[49]  On 24 September 2003, he was resentenced for the break and enter offence as a consequence of breaching the probation order.  He was imprisoned for four months, suspended after two months for an operational period of 18 months.  The appellant's conviction for attempted murder breached this last-mentioned sentence.

[50]  The learned sentencing judge took into account the appellant's criminal record including the very disturbing circumstance that this was the third occasion on which the appellant had committed offences involving the use of a knife, and the unprovoked nature of the attack in a public place. 

[51]  The appellant seeks to rely on the decision of this Court in R v Brown.[8]  There a sentence of seven years imprisonment which had been imposed after a trial for attempted murder involving a stabbing incident following a verbal altercation at a hotel was held by this Court not to be manifestly excessive.  The decision establishes no more than that; but, in any event, the offender in that case had no record of violent assaults, much less violent assaults with a knife.

[52]  Her Honour was rightly of the view that a stern sentence was needed to deter the appellant and others from engaging in violence in public places.  The complainant suffered very serious injuries.  The appellant's record of violent offending made considerations of personal deterrence of particular importance in this case.  The sentence imposed by her Honour reflects these considerations. 

[53]  The respondent relies upon the decision of this Court in R v Bird & Schipper.[9]  In that case, a term of 16 years was imposed by this Court upon a 17 year old first offender who savagely attacked a woman in a park with the help of another girl.  In that case, the offender had admitted her involvement and pleaded guilty.  This was a case of repeated stabbing of an older woman in the head, neck and side.  As this Court said recently in R v Tevita:[10]

"the severity of the sentence imposed necessarily varies with the seriousness of the injuries inflicted on the person targeted; and the extent to which the intention was put into effect by the accused's acts.  The contrast is between a single blow, or stroke or shot, and a repetition of the acts intended to cause death."

[54]  In the present case, there was only one act of stabbing, but the knife was a particularly dangerous example of that weapon, and it was thrust home to the hilt.  The complainant's injuries were life threatening.  In R v Tevita,[11] this Court referred to the reasons of Williams JA in R v Rochester[12] in which, after a review of recent sentences, his Honour said that the approximate range for attempts to kill was between 10 years to 17 years imprisonment.

[55]  In my view, it is clear that the sentence is well within the range indicated by previous decisions of this Court for offending of this level of criminality.  In R v Lepp,[13] a sentence of 16 years was upheld on appeal in a case where an 18 year old female offender stabbed a Family Services Officer once in the chest.  In that case, the victim's injuries were less serious than those suffered by the complainant in this case, and the offender was a young person who did not have a criminal record as bad as the appellant in this case.  Furthermore, here, the appellant's crime was committed while he was at liberty under two suspended sentences.

[56]  The sentence is in no way excessive, much less manifestly so.

Conclusion and orders

[57]  The appeal should be dismissed.  The application for leave to appeal against sentence should be refused.

[58]  WHITE J:  I have read the reasons for judgment of Keane JA and the further observations of Williams JA.  There is nothing more that I can usefully add to their elaboration of the facts or the way in which the learned judge below dealt with the issue of what evidence the jury could consider when considering the evidence about the appellant’s state of mind.

[59]  I agree that the appeal against conviction should be dismissed.

[60]  I also agree that the application for leave to appeal against sentence should be refused, bearing in mind his criminal history including that this was the third occasion on which the applicant had committed offences involving the use of a knife.