[1]  MUIR JA:

Introduction

The appellant was convicted after a trial in the District Court of attempting to strike Senior Constable Stephen ("the complainant") with a motor vehicle with intent to resist his lawful arrest.  Before empanelment of the jury, the appellant pleaded guilty to three other counts on the indictment:  (count 1) unlawful use of a motor vehicle without the consent of the person in lawful possession of it; (count 2) the assault of the complainant, a police officer, while acting in the execution of his duty; (count 3) dangerously operating a vehicle when adversely affected by an intoxicating substance.  All counts arose from a single episode on 7 January 2007 when the appellant, driving a stolen Ford Laser motor vehicle, attempted to evade police officers.  He appeals against his conviction on count 4 and against his sentence for that offence on the grounds that it is manifestly excessive.

Relevant facts

[2] The complainant and Senior Constable Gregory were in uniform in an unmarked police car at about 6.50pm on Eagle Farm Road, Pinkenba when they identified, as a stolen car, a Ford Laser sedan driven by the appellant.  They did a U-turn, caught up to the Laser and activated their vehicle's flashing lights and siren.  The Laser failed to slow down or stop.  The police car then followed the Laser along Main Myrtletown Road, a continuation of Eagle Farm Road, into Priors Road, which runs off the former road at right angles.  The Laser was travelling, at times, at a speed which, in Senior Constable Gregory's estimation, was between 90 and 100 kilometres per hour.  When the Laser attempted, what appeared to the complainant to be a U-turn, Senior Constable Gregory positioned the police vehicle on the wrong side of the road facing the Laser, with a view to blocking the outbound lane of the road.  The complainant left the stationary police car and ran towards the driver's door of the Laser, calling out to the appellant, who was looking at him.  When he was about a metre to a metre and a half away from the Laser, the appellant revved its engine, turned its wheels hard left and reversed. 

[3] The complainant was struck by the swinging vehicle at about the point where the windscreen and the front door meet and thrown over its bonnet onto the roadway near the white centre line.  The appellant then reversed away from the complainant, who was then on all fours attempting to regain an upright position. 

[4] The complainant looked at the Laser, which was 10 to 15 metres away, heard its engine rev very loudly and saw what he took to be the driver looking down and placing the Laser into gear.  The Laser's wheels spun on loose stone on the shoulder of the road, the front wheels briefly lost traction and the car then came rapidly and directly at the complainant.  The complainant observed the driver looking directly at him.  In self-protection the complainant drew his service pistol and fired into the Laser's grill.  When the vehicle was less than five metres from him, and after two or three shots had been fired at it, it deviated slightly to the complainant's right.  He took a couple of steps back and stepped to his left, continuing to fire at the car, which passed within a metre of the complainant.  One shot struck a front right tyre of the vehicle, deflating it.

[5] The Laser then drove past the police car along Priors Road, eventually stopping on the shoulder of Priors Road.  The police officers pulled up nearby, alighted from their vehicle and apprehended the appellant.  They spoke to the appellant, whose speech was coherent.  Throughout the time during which the police officers had the Laser under observation there did not appear to be anything of significance about its handling which suggested that its driver was inebriated or otherwise lacking in capacity to control it properly.  Both police officers gave evidence and it was not suggested to either of them that they noticed or should have noticed any signs of inebriation in the appellant.

[6] The appellant was breath-tested by the police officers, who recorded a reading of .172.  Another test, approximately two hours, later gave a reading of .137.  The appellant declined to be interviewed and did not give evidence.

[7]  It is convenient to now address each of the four contentions advanced by the appellant's counsel.

There was a miscarriage of justice because of incorrect directions with respect to intoxication

[8] The argument advanced by the appellant's counsel was as follows.  The primary judge directed in terms appropriate to an offence not involving a specific intent before giving an appropriate direction for a charge which did involve a specific intent.  In so doing, the primary judge gave inconsistent directions which must have confused the jury and created a potential for error.

[9]  In the first part of his direction, the primary judge instructed the jury that[1]: 

"Intoxication does not relieve a person of responsibility for committing a crime.  It may help you when you are considering the state of his memory of the events surrounding the incident, or the state of his mind which gives rise to this charge when you are considering that.  It may offer some explanation for his conduct but it does not entitle him to an acquittal."  (emphasis added)

[10]  The second and, correct part, of the direction included the following[2]:

"A specific intent is an element of the offence with which we are dealing with here.  That is, intent to cause the malicious act of attempting to run the police officer Stephen down to resist arrest.  The prosecution must prove beyond reasonable doubt that the defendant had, in fact, formed the requisite specific intent to strike the police officer with his motor vehicle and thereby resist his lawful arrest.

There is evidence that the defendant had partaken of alcohol and was intoxicated when the incident occurred.  The evidence of intoxication is relevant to the issue of intent, in this case.  When an intention to cause a specific result is an element of an offence the intoxication, whether complete or partial and whether intentional or unintentional, may be regarded for the purpose of ascertaining whether such an intention, in fact, existed.

The fact the defendant was intoxicated by alcohol may be taken into account, may be regarded by you for the purpose of ascertaining whether the special intent, in fact, existed.

…

Because of the evidence as to the effect of intoxication or otherwise you are not satisfied beyond reasonable doubt that the defendant did, in fact, form the necessary intent to run police officer Stephen down, you must find him not guilty of the offence.

The evidence that the defendant was intoxicated will not, of itself, entitle him to a verdict of not guilty because a person when intoxicated may form the necessary intent, as we know from our own experience.  One who has formed the intent does not escape responsibility because intoxication has diminished his power to resist the temptation to carry it out."

[11]  The first part of the direction was based on the model direction in the bench book for intoxication where the charge does not involve a specific intent.  The second part of the direction was based on the bench book model for intoxication where the charge does involve a specific intent.  Counsel for the respondent conceded that the part of the direction emphasised above constituted an error in law but submitted that the direction, considered as a whole, was correct and not confusing to the jury.  He submitted, in the alternative, that if the Court concluded that there was an error in law, there had been no substantial miscarriage of justice and the proviso should be applied.

[12]  In my view, the inclusion of the direction appropriate for an offence not involving a specific intent, whilst adding unnecessary verbiage did not serve to mislead to confuse the jury.  The central contention of the appellant's counsel is that it was wrong in law to state that intoxication does not entitle an accused to an acquittal.  But the proposition stated in the direction, taken in context, is a direction that intoxication, of itself, does not entitle an accused to an acquittal.  The direction is correct.  As the second part of the direction clearly stated, the existence of intoxication is relevant to the determination of whether the requisite intent was formed.  In my view, there is no inconsistency between the first and second parts of the direction. 

[13]  What I have referred to as the first and second parts of the direction were not, and were not presented to the jury as, discrete directions but as part of a direction on the role of intoxication.  The first part of the direction must be understood in light of the clear statements in the second part as to the use to be made of intoxication in determining whether the requisite intent exists.  A reasonable person hearing the second part of the direction, if he or she had thought that the first part of the direction meant that intoxication could not be used in ascertaining whether the requisite intents had been proved beyond reasonable doubt, could not have continued in his or her initial belief.  The words used by the primary judge are not to be subjected to minute scrutiny as if the transcript were a formal and complex legal document, but are to be construed by reference to what the words, when spoken, would have conveyed to reasonable jurors.

[14]  Although I am of the view that this ground of appeal must fail, it is not the case that the direction is entirely satisfactory.  The inclusion of superfluous material in a summing-up will tend to lessen the impact of the essential parts and make those parts more difficult for the jury to absorb.  The first part of the direction advised that "intoxication" may help the jury when "considering the state of his memory of the events surrounding the incident".  But, as the accused did not give evidence, the state of his memory was irrelevant. 

There was a miscarriage of justice in that the primary judge failed to adequately direct the jury as to the use they may make of events the subject of count 3 in deciding the circumstantial case advanced by the Crown on count 4 and in failing to direct properly on the standard of proof.

[15]  The appellant's contention is that if the jury were to use the incident the subject of count 3 as a circumstance from which to draw an inference on count 4 of an intention to strike the complainant, the jury had to be satisfied beyond reasonable doubt that the act the subject of count 3 was deliberate.[3]  It was contended also that the jury should have been so directed.

[16]  The prosecutor addressed the jury to the effect that they should consider the whole of the subject incident and have regard to its sequence.  He submitted that the striking with the Laser was deliberate and explained his reasons for the contention.  The prosecutor then said:

"That's the scenario we have in this case, ladies and gentlemen, a clear, deliberate hit followed by what was going to be another one."

[17]  The prosecutor then described what unfolded as Senior Constable Stephen scrambled to his feet. 

[18]  The appellant's counsel submits that there was a competing inference, in respect of count 3, namely that the appellant in his intoxicated state panicked and misjudged his manoeuvre and that, in consequence, the striking of the senior constable was an unintended but foreseeable accident.

[19]  Defence counsel at the trial referred to the plea of guilty for count 3 and in so doing said:

"There is no evidence that he knew that he clipped him.  Perhaps he didn't."

[20]  Defence counsel made no direct reference to intent or lack thereof and nor did the primary judge in his summing-up.  It may be that counsel took a forensic decision to say as little as possible about the count 3 striking.  It would have been a legitimate view, from the perspective of the defence that the less said about count 3, the better.

[21]  In Shepherd v The Queen, Dawson J, with whose reasons Toohey and Gaudron JJ agreed, said:[4]

"… it is quite correct to say that an intermediate fact which is an indispensable step upon the way to an inference of guilt, whether it be a fact derived from a single piece of evidence or a conclusion of fact drawn from a body of evidence, must be proved beyond reasonable doubt if the ultimate inference is to be the only reasonable hypothesis."

[22]  McHugh J rejected the proposition that a fact cannot be relied on to found an inference of guilt in a circumstantial evidence case unless it is proved beyond reasonable doubt.[5]  His Honour observed that:

"The more facts that are relied on to found the inference of guilt, the less likely it is that each or any fact will have to be proved beyond reasonable doubt to establish guilt beyond reasonable doubt.  Consequently, even when guilt beyond reasonable doubt cannot be inferred unless certain facts are proved, it may still be open to infer guilt beyond reasonable doubt even though each fact is not proved to that standard."

[23]  Mason CJ expressed general agreement with Dawson J's reasons.  Dawson J also said:[6]

"Whether it is desirable for a trial judge to identify an intermediate conclusion of fact in his charge to the jury in order to instruct them that it must be proved beyond reasonable doubt will depend upon the particular case.  Such an instruction will only be possible where the conclusion is a necessary link in a chain of reasoning.  Even then, particularly when that is obvious, the instruction may not be helpful."

[24]  A direction that the jury, if they accepted that the hitting of the applicant with the Laser was deliberate, could use this conclusion to draw an inference that the count 4 attempt was intentional only if they were satisfied beyond reasonable doubt that the count 3 striking was intentional, would not have been correct in principle.  It was not a necessary link in the jury's chain of reasoning in respect of count 4 that the count 3 striking was deliberate.  The jury could have reached the conclusion they did if they had considered that the appellant's conduct in relation to the count 3 incident was reckless rather than intentional.  Indeed, the evidence of what took place immediately after the count 3 incident provided, in itself, cogent evidence of an intention to run into the complainant. 

[25]  Moreover, a direction that before the jury could use the evidence of striking with the Laser as a circumstance from which to draw an inference that the appellant intended to drive into the complainant on the roadway, they had to be satisfied that the striking was deliberate would have impermissibly and artificially fettered the jury in their role of judges of fact.

[26]  It does not seem to me that the appellant's knowledge that the man on the roadway a few metres in front of his accelerating car had been knocked down by his car minutes before, is not something to which the jury could have had regard, even if they did not consider the striking to be deliberate.  The count 3 incident was part of a more sustained interaction between the police officers and the appellant and the facts the subject of the count 4 incident could not be evaluated properly without reference to the facts relating to count 3. 

[27]  The jury were directed that they could not "reason that because the accused pleaded guilty to the other three counts he is, therefore, guilty of the fourth count or he is the kind of person who might commit such an offence …".

[28]  They were also given comprehensive directions about circumstantial evidence which included the following:

"… in general terms, in addition to facts proved by the evidence, you may also draw inferences; that is, deductions or conclusions from facts which you find to be established on the evidence.  If you accept a certain thing happened, then it might be right to infer that something else happened.  That's the process of drawing inferences from facts.

…

So there must be a logical and rational connection between the facts which you find and your deductions or conclusions.  You are not entitled to engage in speculation or intuition or guesswork.  You do not speculate about things which are not the subject of evidence or might have been said by anyone not called as a witness.  You try the case on the evidence before you, but you are also entitled to draw reasonable inferences upon proven facts.

Now, you might find yourself in a position – this has also been mentioned to you a little earlier – where more than one inference is reasonably open to you.  In that case, for example, if there is one inference consistent with the guilt of the accused and another consistent with innocence.  If that is the case, it is your duty to draw the inference consistent with innocence.  You draw the inference consistent with guilty only if you are satisfied of it or only if you are driven to it beyond reasonable doubt.  So that's important to remember.

If there is any reasonable hypothesis consistent with innocence on the facts you accept, it is your duty to find the defendant not guilty.  This follows from the requirement that guilt must be established beyond a reasonable doubt."

[29]  His Honour later returned to a discussion of circumstantial evidence and reminded the jury that "it is necessary not only that guilt should be a rational inference, but the only rational inference from the circumstances you are able to draw."

[30]  I am unable to accept that the primary judge erred in failing to direct the jury that they could not conclude that the guilty plea in relation to count 3 showed acceptance by the appellant that his striking of the complainant was intentional.

[31]  The primary judge gave the direction about the guilty pleas set out above.  The prosecution did not suggest that the plea of guilty to count 3 had any bearing on the prosecution's case and nor did the primary judge.  There was thus no reason for the jury to reason impermissibly in respect of the guilty plea and to do so would have been contrary to the direction that "count 4 must be considered only in the light of the evidence that has been adduced in respect of it."

The primary judge erred in failing to direct the jury to ignore a non-responsive and inadmissible answer to a question asked by the prosecutor of the complainant in re-examination

[32]  The relevant passage from the transcript is[7]:

"If you could just explain to us what your focus is at that that point and what your concentration levels are there?—As the vehicle's travelling directly towards me not deviating in its course, my intention was to stop the vehicle from proceeding directly towards me and injuring myself or killing myself."

[33]  There was no objection to the question or the answer.  That was not surprising.  Counsel would have been reluctant to be seen by the jury to be taking technical points about statements by a witness which, although probably non-responsive, were uncontroversial and not harmful to the appellant.  The failure to object is thus readily capable of explanation as the product of a sensible, forensic decision.  I say "probably non-responsive" because the answer is arguably the witness's indirect way of explaining that his concentration was intense.

[34]  Regrettably, instead of ignoring this evidence, the primary judge referred to it in his summing-up and that is also the subject of complaint.  It was not argued, however, that the content of the evidence or its recitation by the primary judge were prejudicial to the appellant in any way.  No re-direction was sought.  There is thus no merit in this contention either.

Amendment of count 4 on the indictment

[35]  Count 4 alleged "that on the seventh day of January 2007 at Brisbane in the State of Queensland JASON ROBERT SAEBAR with intent to resist his lawful arrest attempted to strike CAMERON NOEL STEPHEN with a motor vehicle."

[36]  Section 317 of the Criminal Code relevantly provides:

"Any person who, with intent –

…

(c) to resist … the lawful arrest … of any person;

…

Either –

…; or

(f) unlawfully strikes, or attempts in any way to strike, any person with any kind of projectile …"

[37]  The respondent's counsel submitted that in light of the wording of the relevant parts of s 317, the appropriate wording for the charge was "unlawfully attempted to strike …" and sought an order pursuant to s 572 of the Code that the indictment be amended accordingly.

[38]  I am satisfied that the amendment sought comes within s 572(1) and that "no injustice will be done by amending the indictment".[8]  It was not contended on the trial and could not have been contended, sensibly, that any attempt to run into the complainant was authorised, justified or excused by law.

[39]  I would order that count 4 on the indictment be amended by the insertion of "unlawfully" before "attempted".

The verdict is unsafe and unsatisfactory as it was not open to the jury on the evidence to be satisfied beyond reasonable doubt of the appellant's guilt in light of a rational hypothesis consistent with innocence

[40]  The appellant's counsel concedes that the only rational inference open on the facts was that the appellant in driving the Laser in the circumstances the subject of count 4, was intending to avoid his arrest.  He concedes also that the driving of the vehicle directly at the complainant raised an inference that the appellant was attempting to hit the police officer in order to make good his escape.  However, it is submitted that this is not the only inference open on the facts, and that it is not an inference of such high probability that any other rational inference must necessarily be outweighed by it.  It is submitted that the appropriate test is whether a jury, acting reasonably, could have rejected as a rational inference the possibility of an absence of an intention to strike the police officer.[9]  It is further submitted that to enable the jury to be satisfied beyond reasonable doubt of the guilt of the appellant, it was necessary not only that his guilt should be a rational inference but that it should be the only rational inference that the circumstances would enable them to draw.[10]

[41]  The following further points were made.  Panic and fear of apprehension heightened by significant intoxication raises the real possibility that the appellant did not intend to hit the complainant but that he expected that the complainant would move out of his way or that he could veer away at the last moment.  The conclusion is open that the appellant may have already commenced to veer away from the police officer when the shot was fired and that the timing of these two matters was thus coincidental.  Moreover, the police officer did step away from the likely path of the vehicle as the appellant may have expected.  The police officer was not struck by the Laser and the appellant did not turn back.  The other avenues open to the appellant to escape are ones which are "most blessed with the benefit of hindsight".  There was an obvious risk in the appellant's driving towards the police officer that the police officer might be struck, but he may not have appreciated or intended that if his sole focus was to evade the police.  He cannot be taken to have intended the natural probable consequences of his act.

[42]  The approach to be taken by an appellate court in determining whether a verdict was unsafe or unsatisfactory in circumstances such as those under consideration was discussed in Knight v The Queen[11].  Mason CJ, Dawson and Toohey JJ said in their joint reasons:

"The question which arose in the Full Court and which arises in this appeal is whether the verdict of the jury on the second count was unsafe and unsatisfactory.  That question can, in the circumstances of this case, be rephrased to ask whether the jury, acting reasonably, could have rejected as a rational inference the possibility that the appellant fired, without an intent to kill, the shot which hit Salvo.  In considering that question, the Full Court were required to make their own assessment of the evidence, within the limits imposed by the fact that they neither saw nor heard the witnesses [13].  They were required to act upon that view of the facts which the jury were entitled to take having seen and heard the witnesses [14]."

[43]  Brennan and Gaudron JJ in their joint reasons said:[12]

"This case is not concerned with the problem of proof of the facts from which an inference is to be drawn [21]; it is concerned simply with the question whether a reasonable jury, on the facts as outlined, could have returned a verdict of guilty or, to put it another way, whether a reasonable jury could have been satisfied beyond a reasonable doubt that the inference of intent to kill was the only reasonable inference open on that evidence.  Although that question must be decided by this Court, it is not the satisfaction of appellate Justices that is material but the Court's assessment of the sufficiency of the evidence to satisfy a reasonable jury.  In Whitehorn v The Queen [22], Gibbs CJ and Brennan J agreed with Dawson J in rejecting the proposition that a doubt entertained by an appellate court is practically equivalent to a doubt which a reasonable jury ought to have entertained.  His Honour said [23] :

'In many cases it may be unnecessary to make such a distinction because a doubt experienced by an appellate court will be a doubt which a reasonable jury ought also to have experienced.  But the evidence before the appellate court will seldom, if ever, be in the same form as the evidence before the jury.  In particular, a court of appeal does not usually have the opportunity to assess the worth of a witness's evidence by seeing and hearing that evidence given.  Moreover, the jury performs its function within the atmosphere of the particular trial which it may not be possible to reproduce upon appeal.  These considerations point to important differences between the functions of a jury and those of a court of appeal.  A jury is able, and is required, to evaluate the evidence in a manner in which a court of appeal cannot. ... Far-reaching as the ground of appeal relied upon is, it is not intended to substitute for trial by twelve jurymen who have seen and heard the witnesses trial by three Judges who have not': Reg v Cable  [24].

It is far from inconceivable that a court of appeal may, upon the material before it and without regard to the verdict of the jury, entertain the possibility of a doubt itself but may properly conclude that the jury might reasonably have reached a verdict of guilty upon the evidence given at the trial.  Where a result may have turned wholly or largely upon questions of credibility or upon competing inferences such may well be the case.  It is, I think, for this reason that the observation has been made that the power to set aside verdicts which are against the weight of the evidence is to be exercised with caution and discrimination.  See Raspor v The Queen [25].  Such an observation would be largely meaningless if the question were merely whether the appellate court itself experienced a doubt.'

Following that exposition of the appellate function, in Carr v The Queen [26] Brennan J said:

'An appellate court must itself consider the evidence in order to determine whether it was open to the jury to convict, but the appellate court does not substitute its assessment of the significance and weight of the evidence for the assessment which the jury, properly appreciating its function, was entitled to make.' "  (emphasis added)

[44]  Brennan and Gaudron JJ were in the minority but I do not apprehend that there is any expression of principle in the above-quoted passage which is contrary to the majority view.

[45]  In my view, a reasonable jury could have been satisfied beyond reasonable doubt that the appellant intended to strike the police officer with the Laser.  The evidence suggests that the alcohol in the appellant's system had no discernible effect on his driving or conversation.  As is conceded, he was intent on resisting arrest.  The distance between the Laser and the complainant was only about 10 to 15 metres when the appellant commenced to drive towards him.[13]  The appellant revved up the engine, looked directly at the complainant and spun the car's wheels as it took off.  The vehicle changed course only after two to three shots were fired.  The officer then stepped away from the car’s line of travel and it also veered from its line of travel.  Other avenues of escape were open to the appellant.  He could have driven into Bancroft Street,[14] or for that matter, driven between the police car and Senior Constable Stephen.  And the driving at the complainant occurred immediately after the appellant had actually struck him with his vehicle, throwing him onto the roadway. 

[46]  The jury was entitled to conclude that the striking by the car was deliberate and that the mindset of the appellant was such that he was quite prepared to forcibly remove anyone who stood in the path of his escape.  Even if they formed the view that the count 3 striking was not deliberate they could have concluded that the appellant's actions showed a callous disregard of the safety of the complainant.  That would have been relevant to their evaluation of the appellant's conduct in driving the Laser at the complainant.

[47]  For the above reasons I would allow the application for an extension of time within which to appeal, but order that the appeal be dismissed.

Appeal against Sentence

[48]  In addition to pleading guilty to counts 1, 2 and 3, on the indictment containing the offence the subject of the appeal ("the first indictment"), the applicant pleaded guilty to: two offences on a two count indictment ("the second indictment"); entering premises (a motor vehicle) and stealing (a fishing rod); two summary offences of trespass, and three summary offences committed on 7 January 2007.

[49]  Sentences of two years imprisonment were imposed for each of counts 1 to 3 and six years was imposed for count 4 on the first indictment and, in respect of that count, a declaration was made that the applicant had been convicted of a serious violent offence.  The applicant was sentenced to one year imprisonment for each offence on the two count indictment.  Convictions were recorded in respect of all summary offences but no further penalty was imposed.  All terms of imprisonment were ordered to be served concurrently.

[50]  The applicant was born on 22 January 1975 and was 31 at the time of the offences.  He had an extensive prior criminal history which included convictions for unlawful use of motor vehicles, obstructing police officers and one conviction for assaulting a police officer.  He had other convictions for offences in relation to motor vehicles, including for dangerous driving and a number of convictions for stealing and like property offences.  On two occasions the applicant had been involved in police pursuits after being detected in a stolen motor vehicle.  On 14 July 2004, when the applicant was caught driving a stolen vehicle, a high speed police pursuit occurred.  The applicant, after leaving his vehicle, attempted to elude police.  When police officers finally caught up with him, he violently resisted arrest.

[51]  The applicant was on bail for the offences on the second indictment at the time of the commission of the offences on the first indictment. 

[52]  The primary judge gave this explanation of his approach to the imposition of the serious violent offence declaration[15]:

"As the period of imprisonment imposed above is less than 10 years and more than five, I have a discretion to exercise in whether or not  make such a declaration.  Principles upon which I must exercise that discretion are set out succinctly in the matter of The Queen v MacDougall and Collas [2006] QCA 365, particularly at paragraph 19 of the Court's judgment.

Essentially, as I read the judgment, the factors to be considered are the following:

(a)Whether the circumstances of the matter in question are 'beyond the norm' for such offences.

(b)'The existence of factors which warrant its exercise'.

(c)Such declarations 'be reserved for the most serious offences that by their nature, warrant them'.

(d)Whether there are circumstances of aggravation within the offence which might impact upon the protection of the public for whether 'adequate punishment requires a longer period in actual custody before eligibility for parole than would otherwise be required by the Act'.

On a consideration of all relevant factors, and having regard to the principles enunciated and taking into account the following matters relevant to you:

(a)That, at the time of these matters, you were a recidivist offender for this type of offence over a number of years.

(b)You were a disqualified driver on bail for other offences.

(c)It was a stolen vehicle, an offence which you had committed on a number of occasions in the past.

(d)You knew that you were being pursued by police officers.

(e)When cornered at the end of the chase, you struck the police officer with the vehicle, knocking him to the ground.  You then reversed and deliberately intended to run the police officer down again when the police officer was acting in the execution of his duty.  You failed to stop even when shots were fired and, in the course of that activity, you injured the police officer whilst in the execution of his duty."

[53]  Counsel for the applicant submitted in respect of most of the matters listed by the primary judge as relevant to the making of the declaration, that the matter did not, of itself, justify the making of the declaration.  This criticism lacks substance.  Plainly, the primary judge was identifying matters which, when considered together, were regarded by him as justifying the making of the declaration.  He did not identify any of the matters mentioned by him as ones to which he had given more or less weight, and there is no reason to suppose that the primary judge regarded all of the listed matters of equal weight.

[54]  It was submitted in relation to paragraph (a) of the primary judge's "factors to be considered" that it was inaccurate to describe the applicant as "a recidivist offender for this type of offence".  The description was general in nature and the applicant had prior convictions for offences committed in attempting to evade arrest whilst driving dangerously in a stolen car.  On one of those occasions he assaulted the arresting police officer.  But even if the description is considered overly loose or a little inaccurate, it does not lead to the conclusion that the primary judge misunderstood the true nature and extent of the applicant's prior convictions and sentenced on an erroneous basis.

[55]  It was submitted that there was a conflict in the authorities as to whether previous convictions were relevant to the making of a serious violent offence declaration.  Reference was made to observations of McPherson JA in R v Orchard[16] in which his Honour expressed doubt that prior convictions were relevant.  R v Mitchell[17] was identified as a case in which prior convictions, by implication, were treated as relevant.  In that case, however, the applicant for leave to appeal against sentence was unrepresented and the question now under consideration did not arise.  Nor was it considered directly in R v McDougall & Collas,[18] which is relied on by counsel for the respondent.  But in that case, the Court gave detailed consideration to the principles applicable to the making of such declarations.  After observing that "sentencing is a practical exercise which has regard to the needs of punishment, rehabilitation, deterrence, community vindication and community protection", the Court identified as relevant matters including the relevant sentencing principles set out in s 9 of the Penalties and Sentences Act 1992.  These include "any other relevant circumstance" and, plainly, a prisoner's prior criminal history is a relevant matter.[19]  Later in the reasons of the Court[20] it is said that:

"The considerations which may be taken into account in the exercise of the discretion are the same as those which may be taken into account in relation to other aspects of sentencing."

[56]  It is obvious, I think, that in exercising the discretion under s 161B(3), the primary focus must be on the nature, gravity and circumstances of the offence under consideration.  And, normally, disregarding those offences in the schedule to the Act which are not "violent" in the normal sense of that word, the sentencing judge would need to be satisfied that the offence was both serious and violent.[21]  Factors (b) and (c) were submitted to be ones which did not justify the imposition of the declaration "either as a single factor or in combination with other factors".  It may be accepted that these matters would not, of themselves, warrant the exercise of the discretion and that to have imposed a declaration on such a basis would have been erroneous.  As I have indicated, however, the primary judge did not base his conclusion on any single factor or on any two factors.  In my view, the fact that the subject offence was committed by a disqualified driver using a stolen vehicle and on bail for other offences were matters relevant to an assessment of the seriousness of the subject offence.

[57]  The applicant's knowledge that he was being pursued by police officers (consideration (d)) is submitted not to be a circumstance "beyond the norm" for the offence of dangerous operation of a motor vehicle and to be a feature linked more closely to count 3.  Accepting both of these propositions, it is, nevertheless, relevant.  The subject offence was committed against a background of a police pursuit and the applicant's knowledge of this was surely relevant when assessing the culpability of his conduct. 

[58]  Consideration (e) is submitted to contain two errors.  The first is that the injuries suffered by the complainant occurred in relation to count 3, not in relation to count 4.  The second is that the primary judge erred in sentencing on the factual basis that the applicant intended that his vehicle hit the complainant in the count 3 incident without informing defence counsel of his provisional view and without permitting defence counsel to make further submissions or to call evidence on that issue. 

[59]  There is no merit in the second ground.  The Crown Prosecutor addressed on the basis that the count 3 striking was deliberate and the primary judge expressly invited the defence counsel to make submissions on matters which included the applicant's knocking "the police officer down, and then revers(ing) at him, as it were."  In the course of the exchange with defence counsel in this regard, after defence counsel submitted "that the serious assault was one of more reckless disregard than an intention to hurt anyone", the primary judge said, "He would have known.  The police officer was within a metre of the door, telling him to stop, and that was the evidence, as I recall."  Defence counsel should have been in no doubt that the primary judge, having been invited by the prosecution to find that the striking of the complainant with the car had been intentional, was entertaining the possibility of making such a finding.

[60]  Counsel for the appellant placed reliance on the following passage from the reasons of Bridge LJ in R v Lester:[22]

"If the trial judge, in the face of what had been said on this appellant's behalf … in mitigation, was minded to draw such an inference adverse to the applicant, then … the appropriate course for the learned judge to have taken would have been to indicate to counsel for the appellant what was peripherally in his mind, to point out the basis of the suggested inference, and most important of all, to offer counsel the opportunity, if he was so minded, to call his client to give evidence …"

[61]  The appellant had been convicted of an offence of strict liability to which he pleaded guilty.  His counsel submitted that there was no evidence that his client had knowledge of any wrongdoing.  Although the judge had given no indication during the hearing "that he in any way dissented" from the submission, he sentenced the appellant on the basis that the appellant did have knowledge that the offence was being committed.  The facts in Lester are thus quite different from the facts of this case.  The observations of Bridge LJ were in respect of the facts I have just summarised.  No statement of general principle was made.  The general principle which applies is that the prisoner is entitled to procedural fairness.  The appellant was afforded procedural fairness.

[62]  As for the first alleged error, if the primary judge linked the injury to that part of the incident in which "shots were fired", he erred.  But in (e) his Honour was speaking generally of an incident which included the matters the subject of both of counts 3 and 4.  It is most unlikely that the primary judge concluded that the injury occurred in that part of the incident the subject of count 4 when the complainant was not struck by the vehicle or anything else.  Earlier in his sentencing remarks he had referred to the striking of the complainant in that part of the incident the subject of count 3.  He observed that if shots had not caused the appellant to change direction and if the complainant had not moved to his left, the complainant would have been struck a second time.  The conclusion is thus inescapable that the passage in question, whilst constituting either a careless and inapt use of language or a slip of the tongue, does not reveal any factual misunderstanding or appellable error. 

[63]  It was submitted that the sentence of six years was "plainly at the top end of the range for this type of offence."  In support of that submission, reliance was placed on R v Treptow; ex parte Attorney- General (Qld)[23] and R v Nielsen.[24]  In Treptow, which was an Attorney's appeal, the applicant was pursued by police cars through the streets of New Farm and Fortitude Valley for a protracted period.  The chase, and shots fired by the applicant at police in the course of it, posed a risk, not only to police, but to members of the public.  The offender Treptow was sentenced to three and one half years imprisonment after a plea of guilty for offences of attempting to strike with a projectile to prevent lawful detention.  The prosecutor had acknowledged that the respondent should be given credit for immediate remorse and had intimated that he could not argue with a sentence of five years imprisonment with a recommendation for consideration for release on parole after two.  It seems that there were "personal factors associated with the position of (the) respondent" taken into account by the primary judge but not put forward on the appeal.  The sentence was increased to five years imprisonment on an Attorney's appeal. 

[64]  The intoxicated 25 year old applicant in Nielsen drove his car onto a footpath at about 40 kilometres per hour, deliberately hitting a security officer and throwing him over the car's bonnet.  He was then seen to cause the car to swerve and to aim it at people.  After hitting the security officer, the applicant swerved his car at least three times at different groups of people, all of whom managed to evade being hit.  He then pursued a young woman, hit her and knocked her to the ground, breaking a limb.  He subsequently attempted to drive into another group of people and managed to hit one of them.  None of the applicant's victims suffered lasting physical injuries.  The applicant co-operated fully with authorities and his plea was treated as an early one.  He was 23 at the time of the offences and had no relevant criminal or traffic history.  He had a good work ethic, was remorseful, in employment and had made efforts to stop drinking alcohol after the offences.  Leave to appeal against a sentence of six years imprisonment for three counts of doing a malicious act with intent to do grievous bodily harm was refused.

[65]  A significant feature of the appellant's offending, not present in Nielsen, was that he attempted to run his car into a police officer engaged in the performance of his duties.  That conduct merited severe punishment.  The appellant's unfortunate and relevant criminal history and the persistence of his offending also demonstrated a need for personal deterrence and the protection of the community.

[66]  The appellant's counsel's submission that a sentence of four years is appropriate therefore cannot be accepted.  Of greater merit is the submission that a serious violent offence declaration should not have been made.  There was no actual violence involved in count 4, although the appellant's conduct had the potential to cause grave injury.  The complainant's injury was inflicted by the conduct the subject of count 3.  No declaration was made in respect of that offence and there is no appeal against the sentence.

[67]  To my mind, the making of the declaration in these circumstances gives the appearance, at least, that the appellant is being punished again for count 3.  But apart from that, the effect of the declaration, in my view, is to make the sentence manifestly excessive.  A sentence of six years adequately takes into account the exacerbating features of the offence.

[68]  I would allow the application for leave and vary the sentence imposed for count 4 by setting aside the serious violent offence declaration.

[69]  WHITE AJA:  I have read the reasons of Muir JA where the facts are set out and the reasons of Philip McMurdo J where those facts are more fully explored and I need, therefore, add no more to them.  The charge in respect of which the appellant went to trial was that:

“...with intent to resist his lawful arrest [he] [unlawfully] attempted to strike [Constable Stephen] with a motor vehicle.”

[70]  This count reflects s 317 of the Criminal Code shed of any irrelevant words.  At the trial the issue for the jury to resolve related to the state of mind of the appellant as he drove “towards” Constable Stephen on Priors Road.  R v Leavitt[25] makes clear that if an offender “wildly or haphazardly” creates a situation of danger for other persons with the intention of avoiding arrest he would not commit an offence under s 317.[26]

[71]  It is essential for the prosecution to prove that the offender acted as he did to achieve a particular result rather than:

“[C]ontemplate the possibility or even the likelihood of such result by such action.”[27]

Williams J in Leavitt noted that:

“One cannot ‘attempt’ to do something unless one contemplates a particular result and intends to bring it about.”[28]

As McMurdo J has said,[29] here, it was not sufficient that the appellant was recklessly indifferent to the possibility that Constable Stephen might be hit by the car, or even that he would be hit, if he was not trying to do so. 

[72]  His Honour has analysed the uncontroversial facts and how they might be related to the topography and the possible influence of the excessive consumption of alcohol by the appellant on his capacity to reason clearly and to exercise sound judgment.  I agree with his Honour that the jury could not, if properly directed, have excluded the reasonable hypothesis that, in the state of panic, with his judgment likely affected by alcohol, the appellant attempted to flee from the police by driving back along Priors Road.  As he did so he probably expected Constable Stephen to jump out of the path of his vehicle, or may even have been reckless about whether he would or not, but he was not trying to strike him with the car. 

[73]  If the jury could not exclude that hypothesis then they must have had a doubt about the essential element of the charge of intention to strike.  That being so, and since no relevant facts were disputed, there was no advantage enjoyed by the jury to explain the conviction.[30]  Accordingly, the conviction ought to be quashed.

[74] I agree with the orders proposed by McMurdo J.

[75]  McMURDO J: The appellant was convicted of an offence under s 317 which relevantly provides:

“317Any person who, with intent –

…

(c)to resist or prevent the lawful arrest or detention of any person…

(f) unlawfully strikes, or attempts in any way to strike, any person with any kind of projectile or anything else capable of achieving the intention…

is guilty of a crime, and is liable to imprisonment for life.”

[76]  Accordingly, the prosecution had to prove that the appellant intended to do two things.  The first was to escape from the police, or in terms of s 317, to resist or prevent his lawful arrest or detention.  There was no issue as to that intent.  Secondly, in proving that the appellant was attempting to strike the policeman, the prosecution had to prove that the appellant intended that to happen.  In R v Leavitt[31], Andrews SPJ (as he then was) said that this offence required some “action to achieve a particular result”, rather than simply a contemplated possibility or the likelihood of such a result.[32]  By reference to the facts in that case, his Honour remarked that the offence:

“had been made so narrow as to enable a person wildly or haphazardly to use a firearm and create a situation of danger for other persons with the intention of avoiding arrest without committing an offence under the section.”[33]

[77]  Therefore it was not sufficient that the appellant was recklessly indifferent to the prospect that the policeman would be hit by the car, or thought that probably the policeman would be hit by the car, if that was not what the appellant was trying to do. 

[78]  Muir JA has set out fully the facts, but it is necessary that I refer to them in order to explain the inferences which, in my view, were open.  The appellant was pursued by the police car to the end of Priors Road.  At that point the only way forward was by a left turn into Bancroft Road.  The appellant instead swung his car to the right and stopped on the other side of Priors Road from that on which he had driven.  Constable Stephen described this as an attempted U-turn and said that the front wheels of the stolen car were on the shoulder of the road after it had turned, in effect, more than 90 degrees.  It was at this point that Constable Stephen walked towards it.

[79]  When Constable Stephen was almost alongside the stolen car, it suddenly reversed with its wheels turned to the left, so that the front of the car swung to the right and hit him.  This was the subject of the second count on the indictment, which was an assault of the police officer.  There was no necessary element of intent in that offence.  By this reversal of the stolen car, it was at least very likely that he would be hit.  And the appellant must have known that there had been some contact between the car and the policeman, as is clear from the policeman’s description of his rolling over the bonnet.  But that was not inconsistent with a mere indifference to the policeman’s safety; it was not explicable only by an intention to strike the policeman.  It was the manoeuvre which would be expected of the appellant, if he was meaning to escape by driving back along Priors Road, consistently with his attempted U-turn.  This explains why this second count was a charge of assault, rather than another charge of striking under s 317.

[80]  Consistently with that intended escape, the stolen car was reversed to where it faced up Priors Road.  The police car had pulled to the right when the appellant had attempted his U-turn.  Its driver, Constable Gregory, said that at first he had thought that the appellant was turning right to drive across some vacant land, rather than attempting a U-turn, and that he had turned right to follow him.  He described how he feared that the police car would run into a culvert and he then stopped with at least the front of his car on gravel at the side of the road.  The police car was not then blocking an escape back along Priors Road.  The stolen car had room to travel back along Priors Road with the police car on its left, as in fact it did.  At this point Constable Stephen was just to the left-hand side of a white line in the middle of Priors Road (looking in the direction in which the car would then travel).  As the stolen car moved forward, its path was in the direction of the policeman before it deviated slightly to the left when it was about five metres from him.  Until that happened, Constable Stephen said that he was in line with the appellant in the driver’s seat, rather than with the middle of the front of the car.  As appears from photographs of the scene, this was not a wide road and there was room on the bitumen for only one car in each direction.  So the path which the stolen car started to take was not so unusual that it could be explained only by the appellant attempting to strike Constable Stephen.  Instead, it would appear to have been the most direct path back along Priors Road.

[81]  The prosecution case emphasised that there were other paths which the appellant could have taken.  It is said that he could have tried to escape along Bancroft Road.  But there was no basis for the jury to find that the appellant decided to drive back along Priors Road, rather than along Bancroft Road, so that he could strike the policeman.  The appellant had attempted to perform a U-turn when he reached the end of Priors Road, before Constable Stephen had left the police car, and he was simply persisting in that course.  The more relevant argument for the prosecution was that the appellant could have driven back along Priors Road but without following a line where the policeman would be struck if he did not move out of the way, so that the path which the appellant did take could be explained only by an intent to strike him. 

[82]  In hindsight it can be accepted that there was room for the appellant to drive either further to the left of the policeman but still to the right of the police car, or by driving on the incorrect side of Priors Road, to the right of the policeman.  But other circumstances have to be considered.  This was not a leisurely drive but an attempted escape in which there had been a high speed chase for some kilometres.  And the appellant was very intoxicated:  his blood alcohol level was then about three times the legal limit.  Although he was capable of forming the alleged intent, and of driving as he had driven, the effect of his intoxication upon his judgment, especially when he was likely to have been in a state of panic, could not be excluded. 

[83]  It was clearly open to the jury to find that when the appellant started to drive in the direction of Constable Stephen, he knew where Stephen was and he knew that if he did not deviate or Stephen did not move, then the policeman would be hit.  But the jury had to consider the hypothesis that in a state of panic and fear and with his judgment impaired by alcohol, the appellant instinctively began to drive along Priors Road on his correct side, perhaps expecting that Constable Stephen would get out of his way, or perhaps being recklessly indifferent to Stephen’s safety, but not trying to strike him.

[84]  I am unable to see how that hypothesis was excluded.  It was not so inherently unlikely in the circumstances which I have described that he would set off on a path which appeared to have been the most direct one.  Significantly, he was not driving directly at Constable Stephen, in the sense that the middle of the car was in line with the policeman.  The case was that he was attempting to strike the policeman in order to escape, but it is difficult to see that there was any advantage for his escape by striking the policeman, rather than driving past him.  At this stage, as he set off along Priors Road, the policeman had not drawn his gun.  The prosecution emphasised that the car deviated only once shots were fired.  But by then the car was within five metres of the policeman and the possibility that the appellant had coincidently moved to avoid him could not be excluded. 

[85]  In my view the inference which the jury must have drawn from these facts was not the only rational inference which was open, and accordingly, the jury should have been left in doubt as to whether the appellant had the requisite intent.  The question is whether it was reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty[34], and not simply whether this court experiences such a doubt about the appellant’s guilt.  But where that doubt is held by an appellate court, as McHugh, Gummow and Kirby JJ said in MFA v The Queen[35]:

“It is only where the jury’s advantage of seeing and hearing the evidence can explain the difference in conclusion about the accused’s guilt that the appellate court may decide that no miscarriage of justice has occurred.”

[86]  At this trial the oral evidence consisted of the testimony of the two police officers.  Each was cross-examined, but there was no challenge to their evidence of what occurred, as distinct from inadmissible evidence of their impressions of what the appellant had been meaning to do.  There was then no controversy as to the facts of which there was direct evidence.  The question was what the jury could make of those facts, and in particular whether it was able to infer from them that the appellant had the requisite intent.  In considering that question, there was no relevant advantage which the jury had in seeing or hearing the police officers give their evidence.

[87]  In my conclusion the appeal should be allowed, the conviction upon this count quashed and an acquittal entered.

[88]  If the majority view had been to dismiss the appeal against conviction, I would have agreed with Muir JA that the declaration of a conviction of a serious violent offence should be set aside.  That declaration was made, and could only have been made, for the conviction which will be quashed.

[89]  The appellant pleaded guilty to the other counts upon the indictment for which he was sentenced to one term of two years and two terms of one year, to be served concurrently.  Allowing for his period of pre-sentence custody, that two years’ imprisonment would expire on 7 January next.  I would fix his parole release date as today.