R v Simpson[2013] QCA 250

SUPREME COURT OF QUEENSLAND

[1] HOLMES JA:  I agree that the appeal should be dismissed for the reasons that Atkinson and North JJ have given.

[2] ATKINSON J:  The appellant, Neil Alan Simpson, and his co-offender, Toni Maree Prestidge, were convicted in the Supreme Court on 16 August 2012 on one count of attempted murder.  The conviction followed a six day jury trial.  The appellant's grounds of appeal against that conviction are:

1.In all the circumstances the conviction was unsafe and unsatisfactory;

2.That a miscarriage of justice occurred because the trial judge failed to adequately direct the jury in relation to the circumstances of the identification of the appellant as an offender;

3.That a miscarriage of justice occurred because the trial judge failed to adequately direct the jury in relation to circumstantial evidence and specifically how that direction related to the evidence of an intention to kill and identification evidence.

Facts of the offence

[3] The incident the subject of the conviction occurred on 18 January 2011.  The complainant was Patrick Fien.  He was friendly with the appellant's co-defendant Toni Prestidge and occasionally shared drugs and a sexual relationship with her.  On this particular occasion she invited him over to share drugs and a "threesome".  Mr Fien was dropped at Ms Prestidge's unit by his sister.  He said he felt uneasy so retrieved a knife that he had previously left in her garage and put it in his knapsack before he went into Ms Prestidge's unit.

[4] When he arrived at the unit he saw that there was a man he did not recognise present.  He was introduced to him by Ms Prestidge as "Simmo".  Ms Prestidge went out of the room to look for the drugs but then said she could not find them.  Mr Fien followed her as she looked for the drugs.  Mr Fien's evidence was that when he came back into the lounge room the man he had been introduced to as Simmo was over near Mr Fien's knapsack.

[5] Mr Fien then went towards his bag and as he did so he was hit on the back of his head with a piece of wood by Ms Prestidge.  He said the man then hit him with a baton and shoved a v-shaped piece of Perspex into his neck.  He heard the man saying "finish him, finish him now".  By that time Mr Fien said he was covered in blood.  He said that Ms Prestidge then tried to kick the piece of Perspex further into his throat and then stabbed him in the face with a knife.  Mr Fien then said to Simmo, "Mate, I'm dying here.  You're killing me.  You're going to do life in gaol, man, if they catch you, for nothing, for what?"  He then said that the male then stopped and Mr Fien made his escape over the balcony.  He called out to a woman to call an ambulance and then walked out on to the street where he sought assistance from a traffic controller.  He was admitted to hospital where he was treated for very severe wounds.

[6] On 25 January 2011 whilst still in hospital he identified both defendants from photo boards.  He recognised the appellant, Neil Simpson, as "the guy that was in the unit that day, Simmo - I was introduced as - to as Simmo".

[7] The appellant was interviewed by police on 25 January 2011 in Byron Bay.  Mr Simpson said that he been living at Ms Prestidge's unit for about a week and a half to two weeks when the incident happened.  Mr Simpson told the police that on the day of the incident in question he had seen Ms Prestidge texting on her mobile phone.  One of her friends came over, they were introduced and then he left.  He thought his name was Pat.  He shook his hand, finished what he was doing on the computer and then left.  He said he went to a friend's place at Nundah where they smoked cannabis together.  That friend was Chris Dunn.

[8] The appellant told police that he arrived back at the unit later in the day and found blood on the floor.  He saw blood on Ms Prestidge.  His reaction was "And I've just gone fuck this, see ya".  The only thing he touched was his "little bat" which should not have been there.  He went back to his friend's place.  He said he did not clean anything up before he left but he had cleaned the house on Monday 17 January and that any finger prints would be accounted for by that.  He said that his finger prints would be on a bleach bottle and a bucket and mop as a result.  He stayed at his friend's place for the night and then borrowed some money from his friend's parents and went to Toombul shopping centre to get the train into the city to catch a bus.  At Toombul shopping centre he said he fortuitously met Ms Prestidge and they took a taxi to the city and they left Brisbane together on a bus.  He said the meeting with Ms Prestidge was not prearranged.  She had paid for the bus trip out of Queensland as he did not have any money.

[9] He said he stayed one night at a motel in the South Tweed and Ms Prestridge stayed in a different motel in North Tweed just over the border into New South Wales.  They went together into a bank and then caught a bus to Pottsville and went from there to Byron Bay where he was picked up by the police.  In the course of the interview he asserted that his initial interest in Ms Prestidge was to have sex with her in a threesome with his friend Chris Dunn.

[10] The appellant's counsel put to Mr Fien in cross-examination that he met the appellant at Ms Prestidge's unit and then the appellant left and the attack occurred after that.  Mr Fien adamantly disagreed.

[11] The other evidence in the case was the evidence of other lay witnesses, police evidence and medical evidence.  So far as the lay witnesses are concerned, evidence was given by Ms Prestidge's neighbour who heard a lot of bashing and banging noises, a male voice and a child crying and screaming.  The male voice was saying something like "I'm going to f'ing kill you".  She then saw two men come out on the balcony fighting.  She described their physical appearance and the large man who was completely covered in blood asked her to call the police.  In cross-examination she agreed it was possible that she heard a male voice saying "You're going to kill me" as opposed to "I'm going to kill you".  A traffic controller who was working nearby gave evidence that he saw Mr Fien covered in blood and called an ambulance.  Without objection, counsel for Ms Prestidge established through cross-examination that Mr Fien told him that his attacker's name was "Simmo".

[12] The police who attended the block of units where the incident occurred found a knife with a serrated edge with blood on it in the driveway.  They also found blood on the railings of the balcony of Ms Prestidge's unit.  There were blood droplets from the balcony leading into the kitchen and blood on the kitchen floor.  When the police arrived there was a distinct smell of bleach.  Another blood stained knife was found on the floor of the kitchen.  A baton with blood stains was also found on the kitchen floor.

[13] The forensic officer who gave evidence described the blood stains found below the balcony and on the balcony and that the majority of the blood stains were within the living room and the kitchen area.  She also smelt bleach in the kitchen area and observed that the blood stains on the kitchen floor and cupboards had been diluted.

[14] A finger print expert gave evidence of finding palm prints from the appellant in various places in Ms Prestidge's unit.  He also found a right palm print on the side of a Black and Gold lemon bleach bottle from under the sink and a right palm print on the top cap of the bottle of bleach.  The outside of the bottle also tested positive with a reagent for blood.  DNA consistent with that of Patrick Fien was located on the lid of the bleach bottle and on the side of the bleach bottle.

[15] Mr Fien had multiple stab wounds to his head, face, neck and back.  One had penetrated into the trachea which was potentially fatal and transected the thyroid.  He was operated on and then placed in intensive care until he was moved to the ward on 22 January 2011 and discharged on 26 January 2011.

[16] Chris Dunn declined to give a statement to the police.

Ground 1: Unsafe and unsatisfactory verdict

[17] The appellant submitted that it was not open to the jury on the whole of the evidence to be satisfied beyond reasonable doubt that the appellant was guilty of attempted murder as they could not be satisfied to the requisite standard that his intention was an intention to kill.  It was submitted that factors which pointed against that were that the competing inference of the intention of the appellant to do serious harm was equally open with the inference that he had a specific intention to kill.  It was submitted that this was particularly so as the motive for the assault was unclear, the assailants desisted and words such as "finish him, finish him off" were not necessarily to be taken literally.

[18] The respondent submitted that intent needed to be decided at the time of the acts not at a subsequent time when a decision may have been made to desist.  The appellant was on the evidence responsible for the use of a weapon to the throat of the complainant which resulted in a life threatening injury together with oral statements made by the appellant to "finish him, finish him now".  The jury were given very clear directions that it was an essential element of the offence of attempted murder that the defendant had an intent to kill Mr Fien at the time of or during the relevant act or acts inflicted upon him.  Anything less than an intent to cause death was insufficient.

[19] The test which must be applied by the appellate court in considering this ground of appeal is whether "upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty".[1]  It was in my view open to the jury reasonably to conclude that the appellant's conduct, objectively considered, was explicable only on the footing that he had an actual intent to kill: see R v Butler.[2]  I have referred to the evidence in some detail and it can be concluded from this review of the evidence that it was not attended by a doubt which a reasonable jury ought to have experienced such that there is a sufficient possibility that an innocent person has been convicted.[3]

Ground 2: Failure to direct adequately on identification

[20] The appellant's submission was that the identification by Mr Fien of the appellant as one of his assailants contained inherent weaknesses.  It was argued that there should have been a full Domican direction in accordance with the approach of the High Court in Domican v The Queen.[4]  In that case, at 561-562, the plurality held:

"Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed.  The terms of the warning need not follow any particular formula.  But it must be cogent and effective.  It must be appropriate to the circumstances of the case.  Consequently, the jury must be instructed 'as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case'.  A warning in general terms is insufficient.  The attention of the jury 'should be drawn to any weaknesses in the identification evidence'.  Reference to counsel's arguments is insufficient.  The jury must have the benefit of a direction which has the authority of the judge's office behind it.  It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence". [citations omitted]

[21] In this case no such direction was sought or given.  The question is whether or not it was necessary.  While the appellant denied being involved in the assault, he did not deny that he was present in the unit and was introduced to the complainant.  The issue is not one of identification, but whether the evidence given by the complainant that the man whom he met who was admittedly the appellant participated in the attack on him.  As such this is not an identification case as was Domican where there is any question as to the correctness of the identification of the accused person.

[22] There was of course circumstantial evidence supporting the correctness of the identification including the finger prints, the attempt to clean up the blood and the evidence of flight.  However the critical question in terms of whether or not this direction should have been given depends on whether or not this was strictly an identification case.  It was not and so the suggested direction, which was not sought, was not necessary.  This is not a case where it could be said that there was any doubt as to the identification of the appellant as being at his co-offender's unit.  The doubt was not on the reliability of the evidence of identification but rather the reliability of the evidence as to the actions of the admittedly identified person.  As such a Domican direction was not required.

Ground 3: Failure to direct adequately in relation to circumstantial evidence relating to an intention to kill and identification evidence

[23] The topic of the identification evidence has already been covered and no more needs to be said about this.

[24] The appellant submitted that the specific intention to kill could only be proved by inference in this case.  It was submitted that the directions to the jury in relation to circumstantial evidence were perfunctory, and that in addition the trial judge should have drawn specific attention to the relevant intermediate facts from which the inference of a specific intention could have been drawn.

[25] True it is that intent as a state of mind must, apart from admissions, be proved by inference.  The direction given by the trial judge to the jury in this case while brief was entirely appropriate in that it set out the test of which the jury had to be satisfied before they could safely draw the inference of the appellant's state of mind, that he had an intent to kill.

[26] I have already referred to the learned trial judge's directions that an essential element of the offence was that the appellant had an intent to kill Mr Fien during the relevant act or acts inflicted upon him.  His Honour repeated that anything less than an intent to cause death was insufficient and compared that to various states of mind which would not be sufficient and then told the jury that they must be satisfied beyond reasonable doubt that the defendant had an intention to kill.

[27] His Honour then dealt with the jury's task with regard to proof of intention as follows:

"Now, intention is a state of mind.  It is necessarily a matter of inference whether a person had an intent to kill.  As I have said, you may draw inferences only from the proven facts.  There must be a logical and rational connection between the facts as you find them and any inference you draw.  Importantly, if more than [one] inference is reasonably open, that is, an inference adverse to the defendant, one pointing to his or her guilt, and an inference in the defendant's favour that is one consistent with innocence, you must give the defendant the benefit of the inference in his or her favour.

Therefore, you must be satisfied beyond reasonable doubt that the inference of an intention to kill Mr Fien is 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 the charge.  On the other hand, if you come to the conclusion beyond reasonable doubt that the defendant had an intent to kill at the relevant time, then the element of intent will have been proved".

[28] While that direction may be regarded as brief, it was not insufficient in the circumstances of a short trial.  The facts which supported that inference were the ferocity of the attack, the nature of the injuries and the statements apparently made by the appellant.  A listing of those facts by the trial judge would not have assisted the defence.  While it might have been desirable, it was unnecessary for the trial judge to identify each of those facts relied upon by the prosecution at this point in the summing up.  In fact it could be argued that the direction "You must be satisfied beyond reasonable doubt that the inference of an intention to kill is the only reasonable inference open on the evidence you accept" might well have been an overstatement which was disadvantageous to the prosecution.  It could certainly not be a subject of complaint by the defence.

Conclusion

[29] As none of the grounds of appeal have been made out, the appeal should be dismissed.

[30] NORTH J:  The issue at the trial was not the identification of the appellant Simpson, but whether he participated in the attack upon the complainant Patrick Fien.  The complainant gave evidence that when he arrived at the flat occupied by Prestidge, both she and a man who was introduced to him as “Simmo” were present.  His evidence was that both attacked him.  In cross-examination of the complainant, neither counsel for the appellant nor counsel for Prestidge[5] suggested that Simmo was not present at the flat when the complainant arrived.  What was in issue was whether Simmo left before the attack upon the complainant.  This is manifest from the conduct of the appellant’s case at trial.  Experienced counsel for the appellant put to Fien squarely that his client was present at the flat initially but that he left the flat and that the attack occurred after that[6] and without objection by counsel for the appellant the crown prosecutor led from the complainant Fien the fact that “Neil Simpson” was present at the flat.[7]  In the particular circumstances evidence of identification did not “represent a significant part of the proof of guilt” of the appellant, consequently a “Domican” direction was not required.[8]

[31] I have read the reasons for judgment of Atkinson J.  I agree with her Honour’s reasons and with the order she proposes.