R v Butler[2006] QCA 51

SUPREME COURT OF QUEENSLAND

1. THE COURT:  On 25 August 2005, the appellant was convicted after a trial by jury of attempting to murder two police officers on 10 September 2004.  He had previously entered pleas of guilty to two counts of wilful damage to property.  In relation to the convictions for attempted murder, the appellant was sentenced to imprisonment for nine years and a serious violent offender declaration was made.  He now seeks to appeal against these convictions and the sentence imposed in respect of them.

2. The grounds which the appellant argued in relation to conviction were as follows:

"1.That in all the circumstances the verdicts of the Jury are unsafe and unsatisfactory.

2. That the Jury, acting reasonably, could not have rejected as a rational inference the possibility that the Appellant intended to kill himself.

3. That the evidence adduced by the Crown was not sufficient to support the element of 'intent to kill' required to establish the offence of attempted murder.

4. The learned Trial Judge erred in the directions he gave to the Jury as to the manner in which they should approach the issue of intent;

5. The learned Trial Judge erred when he failed to direct the Jury as to the manner in which they could use the evidence of events which occurred in February of 2004."

3. It is convenient to proceed immediately to a consideration of the first three grounds of appeal.

Grounds 1, 2 and 3

4. As the appellant's counsel acknowledged, the first three grounds fall to be resolved together as aspects of an argument that the verdict of the jury was unreasonable and should be set aside pursuant to s 668E of the Criminal Code 1899 (Qld).

5. In order to appreciate the appellant's argument, it is necessary to summarise the effect of the evidence at trial.

6. In 2003 the appellant established a relationship with Anne Tuttle. For a time they lived together with her children in the appellant's house in Charters Towers. In November 2003, Ms Tuttle moved with her children to her father's house at Blackwell which is a short distance out of Charters Towers. The appellant and Ms Tuttle continued to have regular contact but their relationship was uneasy.  Early in 2004 Ms Tuttle attempted to terminate the relationship.

7. At about 11.30 pm on 3 February 2004, the appellant broke into the Blackwell residence by smashing a glass door. He had a firearm. He told Ms Tuttle that he had to kill her. There was a struggle, but eventually Ms Tuttle calmed him down. She subsequently obtained a domestic violence order forbidding him from contacting Ms Tuttle or her children which was later altered to forbid contact with any members of Ms Tuttle's family.

8. At about 3.00 am on 10 September 2004, the appellant again broke into the Blackwell residence by smashing the glass door. He burst into her bedroom. According to Ms Tuttle he was carrying a firearm. Ms Tuttle pretended to be pleased to see him and convinced him to leave the house. He then left. Ms Tuttle gathered her children and drove to a friend's place from which she telephoned the police.

9. The appellant went to his mother's house. She told him that the police had telephoned and were looking for him. He said that he felt "very worried, very betrayed, very anxious". He then drove his Landcruiser motor vehicle back towards the Blackwell residence. His evidence was that he intended to see Ms Tuttle at Blackwell.

10. On his way he passed a police vehicle going in the opposite direction. In the police car were Senior Constables Mackey and Beck. They turned to follow the appellant to the Blackwell residence. At the residence they stopped just outside the yard of the house.

11. The appellant's evidence was that he saw that Ms Tuttle's car was gone and that the police were behind him. It occurred to him that he was going to go to gaol. He said that he decided to kill himself. He drove his vehicle through the front doors of the house. He got out of the car and picked up some knives from the kitchen. His evidence was that, at the time, he thought that the police, who were parked a short distance from the house, would shoot him if they saw that he had knives in his hands.

12. The police saw the appellant standing beside his car looking at them. They did not see the knives. The appellant said that he threw the knives away, got back into the Landcruiser, reversed it out of the house, and then drove directly at the police vehicle. Other evidence was to the effect that the knives were found upstairs in the house.

13. Senior Constable Mackey was driving the police car. He placed his vehicle in reverse and started to travel in an anti-clockwise direction. The Landcruiser kept following the police vehicle and rammed into its passenger side where Senior Constable Beck was sitting. Senior Constable Mackey said that he believed that the police vehicle was "hit hard" several times. He said that the police vehicle rolled over, and was righted when the appellant rammed it again. Ultimately, the Landcruiser mounted the bonnet of the police vehicle. The appellant disengaged the Landcruiser and the appellant then drove into the side of the police car forcing it to collide head on with a tree. Constable Mackey's evidence was that "for a short time" thereafter the Landcruiser kept pushing the police vehicle while it was up against the tree. The appellant then reversed out and drove away.

14. Senior Constable Beck's evidence was to similar effect. Both Senior Constable Mackey and Senior Constable Beck initially recalled that the police vehicle had rolled twice, but investigations of the site by Senior Constable Noble suggested that only one rollover had occurred.

15. The appellant drove to Charters Towers Police Station where he presented himself to the officer in attendance and said "I did it again. I went off and I've run over a police car."

16. A short time later in a conversation with another police officer he said that he had driven into the house to try to kill himself, and that when that had not worked he had seen the police car and had driven towards it in the hope he might be shot by the police. At trial, the appellant gave evidence to similar effect. He said that he did not intend to kill the police. This was said in his evidence-in-chief and in cross-examination.

17. The appellant called evidence from his treating psychiatrist, Dr Richards, who said that the appellant had spoken of killing himself in early 2004 when his relationship with Ms Tuttle soured. He was placed in a psychiatric unit at that time because he was dangerously depressed. Dr Richards was of the opinion that the appellant suffers from a personality disorder which is not of an anti-social kind. Dr Richards' view was that this disorder would not prevent the appellant forming a conscious intent, but the appellant's ability to form such a conscious intent may have been somewhat diminished by the disorder.

18. The appellant accepts that in relation to the first three grounds of appeal the issue is whether it was open to the jury to conclude beyond reasonable doubt that the appellant was guilty of attempted murder. The appellant contends that the issue for this Court is whether the jury, acting reasonably, could have rejected, as a rational inference, the possibility that the appellant drove his vehicle without an intention to kill, rather than with an intention to cause serious damage to the police vehicle while being irresponsibly reckless as to whether the death of one or both of the police officers might be caused by the manner of his driving. In this regard the appellant relies on the decisions of the High Court in Knight v The Queen^[1] and Cutter v R.^[2]

19. On the authority of these decisions, the appellant argues that, even if the evidence of the appellant, which the jury were entitled to reject, is put to one side, the circumstances proved by the Crown were not such as to exclude the possibility that the appellant drove his Landcruiser into the police vehicle, whether in a directionless rage or with a view to being killed himself, but without a specific intent to take the life of either Constables Mackey or Beck. If that possibility could not be excluded, the appellant could not be found guilty of attempted murder though he was entirely reckless as to whether or not the police officers might be killed.

20. In an endeavour to make good this argument by reference to the facts of the case, the appellant points to:

1. the absence of any suggestion that the Landcruiser was driven by the appellant at any great speed at any time during his assault upon the police vehicle;

2. the difficulty in inferring that the appellant actually intended to cause the police vehicle to roll and thereby to create an extremely hazardous situation for the police officers;

3. the fact that the appellant did not press home his attack upon the police officers so as to give effect to an intent to kill in circumstances where it was open to him to do so.

21. The appellant submits that in lieu of the verdict of attempted murder, which should be set aside as unreasonable, a verdict of dangerous driving should be substituted and sentence passed accordingly.

22. The respondent submits that the jury were made well aware by the learned trial judge's directions of the necessity to find beyond reasonable doubt that the appellant had the specific intent to kill the police officers, and that neither reckless indifference to their fate nor an intent to do them grievous bodily harm was sufficient in this regard. That submission accurately summarises the learned trial judge's direction to the jury as will be seen when reference is made to the summing-up in the course of a consideration of the fourth ground of appeal.

23. Further, the respondent submits that it was open to the jury to infer from the appellant's actions an intent to kill on his part. In this regard, the respondent is able to point to:

1. the fact that the appellant drove into the passenger side door of the police vehicle where Senior Constable Beck was sitting;

2. the fact that the appellant persisted with his assault by repeatedly ramming the police vehicle to the point of rolling the police vehicle, and ramming the police car again thereafter.

24. The respondent submits that the appellant's determined persistence in such extraordinarily dangerous conduct was such as to entitle the jury to infer that it was explicable by the existence of an intent to kill. The respondent argues that the appellant may have been impelled by motives of anger towards Ms Tuttle or of self-destruction, but whatever the emotional well-springs of his actions, his persistence in his potentially lethal rampage is explicable only by the existence of an intent to kill the police officers.

25. In our respectful opinion, the respondent's submission on this point should be accepted. The jury could, acting reasonably, have come to the view that the appellant's actions in ramming the police vehicle and persisting in that regard were informed by an intention to kill the occupants of that vehicle, whatever else may have also been going through his mind. The appellant may have been motivated to act as he did by suicidal ideation or anger towards Ms Tuttle, but these motives were not inconsistent with an intent to kill the occupants of the police vehicle. The real question is whether the jury were entitled to infer from the episode involving persistent application of lethal force by the appellant against the police officers in their vehicle an actual intention to bring that lethal force to bear on them. The answer to that question is in the affirmative. That the appellant may have changed his mind, as he plainly did when he ceased his rampage, does not mean that, while he was continuing his rampage, his intent was not to achieve that which was its obviously likely outcome in terms of the death of the police officers.

26. The present case is not one like Cutter v R where the appellant struck one potentially lethal blow.  In that case, the possibility that the blow was struck in anger without the specific intent to kill could not be excluded.  In the present case, it was open to the jury to conclude that the appellant's conscious persistence in the use of lethal force is explicable only by an intention to prosecute an intention to produce a lethal effect.  Whatever the motives which impelled the appellant, it was open to the jury reasonably to conclude that his conduct, objectively considered, was explicable only on the footing that it involved an actual intent to kill the police officers.

27. For these reasons, we would reject the first three grounds of appeal.

Ground 4

28. The appellant contends that the learned trial judge misdirected the jury by, in effect, directing them to ignore the appellant's evidence of his intention. The appellant submits that this flaw in the conduct of the trial arose because of the emphasis placed by the learned trial judge on the proposition that the appellant's intention was to be ascertained as a matter of objective inference from his conduct was such as to suggest that the evidence of the appellant on this issue could be ignored.

29. The respondent contends that the learned trial judge took the jury to the relevant passages of the appellant's evidence in relation to his intention, and that as a result the jury would necessarily have understood that the issue of intent was to be decided upon all of the evidence including the appellant's own evidence of his intention.

30. To resolve these competing submissions, it is obviously necessary to refer to the terms of the summing-up at some length. His Honour said:

"Evidence may be direct or it may be circumstantial.  Direct evidence is evidence which of its own force proves or tends to prove or disproves or tends to disprove a relevant fact.

  Circumstantial evidence, on the other hand, is of a different character.  It is evidence which allows you to draw an inference about a relevant fact.  If there is more than one inference open, reasonably open, and anyone of those inferences is consistent with the innocence of the accused, you must draw that inference.  This is a case in which circumstantial evidence is relevant because as you have heard, the critical issue here is whether the accused had an intention to kill.  That is something that can only be inferred from surrounding circumstances, that is, the existence or non-existence of an intent.

…

  It is for the prosecution to satisfy you of the guilt of the accused before you can return a verdict of guilty.  The accused does not have any onus resting upon him to prove his innocence.  In this case he has given evidence.  He was not obliged to give evidence.  There was no onus resting upon him to do so.  Having given evidence, you have that evidence along with all of the other evidence given in the case to consider when you retire to the jury room and where you have to address the issues that I will shortly tell you about.

…

  It is an essential element of the offence that at the time of the ramming of the police vehicle by the accused's vehicle he intended to kill each of the police officers.  Anything less than an intention to cause death is insufficient.  It is not sufficient, for example, that the accused may have been recklessly indifferent as to whether the police officers were killed or not.  Nor is it sufficient on a charge of attempted murder that he intended to do serious bodily harm or grievous bodily harm, a term that we are used to in the criminal Courts.  Nor would it be sufficient that he had some general intention to inflict harm on the police officers or damage to the police vehicle or that he simply in a state of fury acted without having any particular aim in mind.  There has to be proved to your satisfaction beyond a reasonable doubt that the accused at that time intended to kill.  That is the only intention that would be sufficient to render him guilty of the count of attempted murder.

  Intention is a state of mind.  It is necessarily a matter of inference whether a person had an intention to kill.  As I told you before, you may draw inferences but you may do so only from proven facts.  There must be a logical and rational connection between the facts as you find them and any inference you draw.  As I have said, if more than one inference is reasonably open, that is, an inference adverse to the accused - that is pointing to his guilt - and an inference in his favour - that is one consistent with his innocence - you must give him the benefit of the inference in his favour.  Therefore it might be said - in summary - you must be satisfied beyond a reasonable doubt that the inference of an intention to kill is the only reasonable inference open on the evidence as you find the evidence to be, that is, the evidence which you accept.

  If you are not satisfied beyond a reasonable doubt that there was an intent to kill the offence of attempted murder cannot be established and you must find the accused not guilty of these charges.  On the other hand, if you are satisfied beyond a reasonable doubt the element of intent will be proved.

…

  In summary here it is alleged that the accused attempted to kill each of the police officers in the vehicle by ramming the police vehicle with his four-wheel drive on a number of occasions.  Of course, the facts are entirely a matter for you, what you find.  It seems to me the critical issue, as I have said, is did he intend to kill the police officers at that time.

  I should mention this; because we are dealing with an intention as an element and as I said to you before, this is something that can only be inferred from external factors from surrounding circumstances - we cannot open up a person's mind and look inside it at the time.  Here, of course, you have other evidence, however, touching on this issue coming from a psychiatrist,
Dr Richards, and you of course - bearing in mind that he is a man with qualifications in this area, an expert - you bear in mind what he has said on the question of the accused's capacity to form an intention in - and I summarise this - his state of - as
Dr Richards' describes it 'emotional turmoil, his panic-stricken state'.

  So you consider all of the relevant evidence including of course the opinion of the psychiatrist in considering the question, 'Am I satisfied beyond a reasonable doubt that the accused had the intention to kill?'  I will of course come to his evidence in little detail shortly when I turn to the evidence generally."  (emphasis added)

31. We pause here in our review of the learned trial judge's summing-up to make three observations.

32. The first is that the learned sentencing judge, in describing intention as something which is "necessarily a matter of inference" and which can "only be inferred from external factors from surrounding circumstances - we cannot open up a person's mind and look inside it at the time", seems to have excluded the appellant's own evidence of his intention from the jury's consideration of the issue of intent. That was, with respect, incorrect. It is clear that the accused's own evidence of his state of mind was relevant to the issue of intent. In R v Palmer & Hite,^[3] Davies and Williams JJA were concerned to draw a distinction between the facts in Knight v The Queen^[4] and the facts of the case before them.  Their Honours said:

"Knight gave an extensive record of interview to investigating police detailing his version of relevant events, and he also gave evidence at the trial.  As was recorded by Mason CJ, Dawson and Toohey JJ at 498:

'Both in his record of interview and at the trial the appellant stated that he did not know that Battaglia had been shot.  He denied that he intended to kill or shoot Battaglia or, indeed, anyone.'

As is made clear by a reading of the judgments the defence, supported by evidence Knight gave at the trial, was that the discharge of the rifle was accidental.  In those circumstances it was not simply a matter of the jury drawing an inference as to the relevant intent; before the jury could draw the inference beyond reasonable doubt that the accused had an intent to kill they had to reject an alternative hypothesis reasonably open and supported by evidence before them."^[5]

33. The second point to be made here is that to say that the "non-existence of an intent" can be proved only by inference "from surrounding circumstances" is especially likely to lead the jury to disregard the appellant's evidence of the "non-existence" of the necessary intent to kill.

34. The third point to be made here is that, with respect, the error in excluding the appellant's evidence of his intentions from these observations, was compounded, rather than ameliorated, by his Honour referring expressly to the evidence of Dr Richards as evidence which was relevant to the task in hand.  The combination of the emphasis on "proven facts" or objective "external factors", the absence of reference to the relevance of the appellant's own evidence on this issue and the express reference to the relevance of the evidence of Dr Richards was distinctly apt to lead the jury to disregard the appellant's evidence of his intentions and his lack of intention to kill the police officers.

35. The learned trial judge's summing-up continued:

"Well, ladies and gentlemen, the evidence for the defence I now turn to.  The accused gave evidence about his history, his background, you will recall, his schooling and his work history; that his great aunt who he was close to who was killed and the effect that had upon him and also his developing a relation with Anne Tuttle, he had had some earlier relationships; that his business was badly affected in late 2003 and he suffered depression as a result of which he was admitted to hospital and that Anne Tuttle broke up the relationship at about this time too.

…

  He said when he got there the gate was open but the car was gone from the point where she would normally leave it and that he immediately thought she was not there, the police were behind him and he was going to go to gaol.  He was asked:

'What did you decide to do?--  Kill myself.  Drive my car into the house.  I didn’t want to go to gaol.  I didn’t want to be raped.  I didn’t want to be, you know, locked up where I never got to see the sun.

How fast were you going––-?--  As fast as I could.  As I was coming up I slowed up a bit until I worked out that the gate was open and the car was gone and then I just accelerated.  There was a concrete edge, a fence, gardens, drove through those, went airborne, went through the doors and through the wall and ended up right inside the house.

You didn’t kill yourself?--  No.

Can you remember what happened next?--  I jumped out panicky, the wall had moved, the kitchen had moved, there was a row of knives on the wall, I raced around, picked up two knives, ran around to the car.

Why did you pick the knives up?--  You know, I thought they'd be right behind me, if I had two knives in my hand they'd shoot me.

Did they shoot at you?--  I came back around to where the car was and they never even came up to the house. They were pulled up further down in the paddock.'

  He was asked about the knives in the photos, he said he did not know how they came to be there.  He said he believed there were lights on in the police vehicle; he had not closed the door to his vehicle.  He said he put it in reverse, backed out back down towards the electric fence gate:

'What was going through your mind?--  I just wanted the police to shoot me.  I wanted to not go to gaol.

Were you thinking about Anne at that time?--  Not really.  I was just, you know, I thought she betrayed me.  I didn't want to go to gaol, I'd rather be dead than raped and have to fight all the time and be locked up.'

  He said he realised he would be in big trouble because he breached the DVO order.  At that time he said:

'When I backed out of the house the police car had come up to where the electric gate fence was.  I had come towards them, they had reversed, they were reversing.  They had reversed off to the right.  As we were going down on my right I have followed them off the road, contacted them again on the passenger side.  They were just going around me like I was in the middle of them and the police car was going around me and I contacted it again.  At some stage they changed directions and they were going forward.  I was still in the middle, I contacted it on the passenger side, the police car, they were going forward, contacted it, it has rolled over onto its roof, back onto its wheels.  My car was on the bonnet, one wheel was on the bonnet, my LandCruiser was on the bonnet.  One wheel was off the bonnet and I could see stuff there on the bonnet.  I looked down, I could see Policeman Mackey was looking up at me.  He undid his seatbelt.  I tried reversing off the bonnet, I could not get off.  It just looked like he was going to jump out and grab me.  I pulled the vehicle into four wheel drive and backed off.  The police car was straight in front of me, I was looking - there were two policemen looking at me.  I stayed there for a little bit, they were not going to shoot me, and they were just sitting there and I have taken off and just headed off down the road.

When you made contact with your vehicle with the police vehicle what was going through your mind?--  I just wanted them to shoot me.'

  And he said that as he got down the road he thought a bit better of things, realised that he had done wrong, started to rationalise, 'Handed myself into the police station'.  And he said he did not remember the conversation with Constable Machin.  He said that he spoke to Detective Burns and Detective Richardson at the watch-house and he told them that he wanted to kill himself and when that did not work he wanted the police to kill him."

36. His Honour did not remind the jury of the appellant's evidence-in-chief that he did not intend to kill the police officers. His Honour did, however, remind the jury of the appellant's evidence in cross-examination that he "just wanted them to shoot me". More importantly at this point, one may note that the learned trial judge has not explained to the jury the use to be made of the appellant's evidence. In particular, his Honour has not explained that, contrary to the tenor of his earlier remarks, the jury are at liberty to act upon the appellant's evidence on the issue of intent.

37. The appellant's counsel has submitted in particular that the learned trial judge's directions, considered as a whole, may well have led the jury to the view that the "non-existence" of an intent to kill could not legitimately be ascertained by reference to that party's evidence about his own state of mind. In our respectful opinion, the appellant's submission must be accepted.^[6] 

38. The learned trial judge's summing-up was apt to restrict the jury's consideration of the issue as to the existence or non-existence of the relevant intent to the actual conduct of the appellant and the inferences which might be drawn from that conduct so as thereby to cause them to disregard the appellant's evidence on this issue.

39. In this regard, it is true to say, as counsel for the respondent submits, that the learned sentencing judge reminded the jury of much of the appellant's evidence of his intentions. It may be asked rhetorically, "What was the point of referring the jury to that evidence if they were not to take it into account on the issue of intent?" The response to this rhetorical question is that this is precisely the flaw in the summing-up. Indeed, the summing-up does not make the point of that evidence clear to the jury, especially having regard to the earlier express directions as to the limited kind of evidence from which the appellant's intention or lack thereof is to be determined. The jury may well have been led to have no regard to the appellant's evidence of his intent.

40. It is not possible, in our respectful opinion, to exclude the 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 the appellant acted with intent to kill. There is an unacceptable risk that one or more of the jurors may have accepted the appellant's self-serving statements on oath, but felt obliged to disregard them. The suggested direction on intention in the Queensland Supreme and District Courts Benchbook includes the reminder, at the conclusion, that "… of course, whatever a person has said about his intention may be looked at for the purpose of deciding what the intention was at the relevant time".

41. The appellant submits that, in these circumstances, this Court could not apply
    s 668E(1A) of the Criminal Code.  He relies on the decision in Weiss v The Queen.^[7]  This submission is not controverted by the respondent, and the submission must, we think, be upheld.  This Court should not be astute to apply the proviso in a case where the jury's verdict reflects the absence of a consideration of the credibility of material evidence.  Especially is this so in a case, such as the present, where this Court does not have the advantage of seeing and hearing from a crucial witness upon a vital issue.  As a result, the convictions on the counts of attempted murder should be quashed and a new trial ordered.

Ground 5

42. The conclusion that the convictions for attempted murder should be set aside draws further support from a consideration of the appellant's argument in relation to ground 5.

43. The respondent observes that the evidence of the events which occurred in February 2004 between the appellant and Ms Tuttle was introduced with the consent of the appellant, and indeed formed part of the evidentiary basis for Dr Richards' evidence. Nevertheless, the question is not whether the evidence was properly admitted, but whether the jury understood the limitations on the use which might be made of this evidence in the course of their deliberations.

44. The jury may well have reasoned that the evidence of the February 2004 episode was capable of providing a basis for reasoning that the appellant was a man with no regard to the law or the rights of others, that he was a violent man "with murder in his heart", and, indeed, that he was the kind of person predisposed to act violently with murderous intent towards Ms Tuttle or towards others. The jury should have been told that they could not use such reasoning as the basis for a conclusion that the appellant was likely to have formed the intent to kill Senior Constables Mackey and Beck. There was here a real risk of serious prejudice to the appellant from the use of propensity reasoning which should have been addressed by the learned trial judge. Especially is that so where, as here, the learned Crown prosecutor had submitted to the jury that "a person like Mr Butler can form such an intention just as easily, perhaps more easily, than a normally operating person …".

45. In BRS v The Queen,^[8] McHugh J said that:

"If evidence revealing a criminal or reprehensible propensity is admitted, the trial judge must give the jury careful directions concerning the use which they can make of the evidence.  If the evidence is admitted for a reason other than reliance on propensity, the judge must direct the jury that they can use the evidence for the relevant purpose and for no other purpose.  In some cases, the judge may need to be more specific.  He or she may need to direct the jurors that they cannot use the evidence for an identified purpose."

46. In our respectful opinion, in the words of Fitzgerald P in R v K,^[9] "it was incumbent on the trial judge to ensure that the jury fully understood that any process of propensity reasoning was totally wrong".

47. It is to be emphasised that the issue is not whether the evidence in question was admissible; rather, it is whether the jury understood that they could not use the evidence to support the inference that the appellant was a man who was readily disposed to form the intention to kill.^[10]  In the absence of a stringent warning in this regard, the danger that the jury would reason in this way was very real.

Conclusion and orders

48. For these reasons, we consider that the appeal must be allowed and the convictions for attempted murder set aside.

49. There should be a retrial of the counts of attempted murder. In these circumstances, it is not necessary to deal with the application for leave to appeal against sentence.