R v Rogers[2013] QCA 52

SUPREME COURT OF QUEENSLAND

[1] MARGARET McMURDO P:  The appellant was charged with attempted murder of her partner, Steven Smith (count 1).  She was alternatively charged with doing him grievous bodily harm with intent (count 2).  She was also charged with going armed so as to cause him fear (count 3).  All offences were said to have occurred on 10 October 2010 at Toowoomba.  On 5 March 2012, in the presence of the jury, she pleaded not guilty to count 1 but guilty to counts 2 and 3.  The prosecutor stated that he would not accept the guilty plea on count 2 in discharge of the indictment and the jury was empanelled.  Only count 1 was left for the jury's consideration.  After a four day trial, the jury convicted the appellant on count 1.  The judge's associate initially administered the allocutus only on count 1 but at the judge's direction she then administered the allocutus on counts 2 and 3.[1]  The court order sheet attached to the indictment, however, records that the allocutus was administered only on counts 1 and 3.  This reflects the correct procedure as count 2 was merely an alternative in the event the jury acquitted on count 1.  Curiously, the Verdict and Judgment Record states that a nolle prosequi was entered in respect of count 2 but the indictment in the Appeal Book does not contain any such endorsement and nor was one necessary as count 2 was a superfluous alternative count once the appellant was convicted on count 1.

[2] The appellant appeals against her conviction on count 1 only, contending that the learned trial judge erred in directing the jury to ignore her plea of guilty to count 2; in directing the jury about the use they could make of her plea of guilty to count 2; in failing to leave count 2 to the jury; and that the judge's failure to give directions about the elements of count 2 resulted in a miscarriage of justice.

[3] Before discussing these grounds of appeal, it is necessary to set out relevant aspects of the evidence and the proceedings at trial.

Relevant aspects of the evidence and the trial

[4] After the jury was empanelled, the judge gave directions about the appellant's plea to count 2.  They relevantly included:

"Now, the charge which is before you is a charge of attempted murder. You have heard that there was an alternative charge of, in effect, doing grievous bodily harm with intention to do grievous bodily harm, and you heard that the accused woman pleaded guilty to that. The Crown didn't accept that plea as sufficient. They say it's more than just that, it's attempted murder. So that's what you have to decide, is it attempted murder. There's another charge to which she has also pleaded guilty, and that's going armed so as to cause fear. That's an additional charge. Whatever happens to the first two alternative charges, she has pleaded guilty to that, so again, you don't have to worry about that charge. The one charge you have to worry about is attempted murder."[2]

[5] The prosecutor in his opening made clear that count 2 was only an alternative if the jury found the appellant not guilty on count 1.  He outlined the prosecution evidence he would call to support a conviction on count 1.  The only inference from that evidence, he submitted, was that the appellant's actions and words showed that she sought to kill Mr Smith.  She may have failed but she did attempt to kill him by a means well adapted to fulfilment, namely, taking a knife to his chest and neck.

[6] Counsel for the appellant also made an opening address to the jury.  He reminded the jury that the appellant had:

"entered a plea of guilty to this charge that lawyers call intentional grievous harm, or section 317, and a plea to going armed in public to cause fear.  What this means is that she's effectively intentionally caused GBH to Mr Smith.

And that means you don't have to consider that charge and indeed, at the end of this trial, of course, you would understand that if she's found not guilty of attempted murder, [his] Honour will then sentence her in relation to that matter.  But Ladies and Gentlemen, what, by her plea, she has also done, and that's really where you come in – what she has done is, she has said, 'I am not guilty of attempted murder.'

Now there is only one issue in this trial.  It's really a very simple case.  The prosecution, through my learned friend, has the burden of proof, that is, they must prove their case, and the standard of proof which they have to achieve is beyond reasonable doubt.  So the issue for you, ultimately, can really be put down to one sentence.  At the end of the day, have the Crown proved, beyond reasonable doubt, that that woman attempted to kill Mr Smith – not anything else – attempted to kill?"[3]

[7] Defence counsel also emphasised that it was common for courts to hear matters in which people threaten to kill but then do something much less.  The appellant was intoxicated and not thinking clearly.  After the jury had considered the prosecution evidence, they should ask themselves whether the Crown had proved beyond reasonable doubt that there was an intent to kill and "there is a huge difference in common sense between intending to hurt somebody and intending to kill them".[4]

[8] The following summation of the prosecution evidence is not contentious.  The appellant and Mr Smith were in a de facto relationship.  They had been drinking heavily throughout the afternoon of 10 October 2010, although mostly separately.  On the occasions when they were together they argued and, at one point, Mr Smith accused the appellant of infidelity.

[9] Mr Smith gave evidence that the attack occurred without warning shortly before midnight when he was heavily intoxicated.  The appellant repeatedly said during the attack "I'm going to kill you, you cunt".[5]

[10] Daniel Peacock gave evidence that Mr Smith called the appellant a slut before she went upstairs to a unit, returned with a knife and attacked him.  She said "I've had enough of this shit.  I'm going to kill him."[6]  Sean Byrnes also heard her say "I'm going to kill you."[7]

[11] The appellant slashed at Mr Smith causing five injuries, three of which were minor.  The fourth was a 10 cm wide, 2 cm deep laceration to the chest.  The most significant injury and the one amounting to grievous bodily harm was a 4 cm laceration to his neck which severed an artery and caused heavy bleeding.  Mr Smith required surgery to stop the bleeding without which his life would have been endangered.  The neck injury was more consistent with a slashing rather than a stabbing motion.  The following exchange occurred during defence counsel's cross-examination of Dr Allsopp about Mr Smith's injuries:

"Could I also put this to you – and I want to just give you the relevant part of the definition of grievous bodily harm.  Relevantly, it means, 'Any bodily injury of such a nature that if left untreated would endanger or be likely to endanger life or to cause or be likely to cause permanent injury to health.'? -- Mmm-hmm."[8]

[12] The appellant stopped her attack on Mr Smith and he escaped.  Imogen Allan heard the appellant threaten to kill people in the unit complex generally; the appellant was very upset and a man told her: "You're insane".[9]  She recalled the appellant saying "I didn't hurt him bad … If I wanted to kill him, I would have slit his throat."[10]  Christina Kennedy heard her say something similar to the police.  The appellant was yelling out threats to kill everyone in the unit complex.

[13] The appellant did not give or call evidence.

[14] The prosecutor in his closing address stated that it was clear:

"that the real point of contention in this trial, the issue for you to decide that is in contest, is what was her state of mind at the relevant time.  And in answering that question, that primary question for you to consider, you obviously have seen that she pleaded guilty to the alternative charge of causing grievous bodily harm with intent to cause grievous bodily harm.  The prosecution case is that, in fact, the only reasonable conclusion on the evidence that's been presented to you in this case is that it was not simply an intention to cause grievous bodily harm, it was an intention to kill."[11]

[15] After referring to the evidence, the prosecutor submitted that the jury would infer from the evidence that the appellant stabbed Mr Smith intending to kill him.  He continued:

"Now, in this case, as I began, it's important for me to again state where there is alternative charges, that is not the prosecution having a bob each way.  What it allows you, as members of the jury, to do is find the facts as you find them to be and decide the appropriate charge.  Now, here, the question is, is attempted murder the appropriate charge?  Will you find that?

It is not the task of the prosecution to pre-empt, in every case, the expected findings.  And in a case where an intention is at issue, that is something which, based on the evidence, you need to decide for yourselves.  The point is not, in my submission, and I'm not trying to have a go at my learned friend, but he did raise the fact that, well, if you find her not guilty of the attempted murder, then you've heard her plea to the alternative count and she will be dealt with by His Honour for that.  That invokes an element of reasoning that, well, we don't need to find an attempted murder because we know there'll be something coming to her anyway.

That is not the function in this trial that you have.  It is to decide whether attempted murder is the charge she should be answerable for.  Simply because you've heard a plea to a different charge, does not in any way affect your task for this first count.  If you find, if you are satisfied that her words and her deeds speak irresistibly to the fact that she was attempting to murder [Mr Smith], as that offence is made out in law, then your duty is to convict [the appellant]"[12] (errors as in the original).

[16] The defence case was that the prosecution evidence was equally consistent with an intention to hurt Mr Smith rather than to kill him.  The appellant's threats to kill were probably no more than angry hot air.  She was heavily intoxicated.  She desisted when he was plainly not dead.  The most serious injury, the neck injury, was consistent with a slash rather a stab.  Defence counsel in his closing address, stated:

"Now, this lady has committed a very serious offence; that is, section 317, intentionally causing grievous harm.  She's also pleaded guilty, you know, to going armed.

Now, as the prosecutor said, of course, at the end of this case, she will be sentenced, and that's as it should be.  There is no possible excuse for what she did.  But, ladies and gentlemen, she did not attempt to murder Mr Smith that night.  That is taking this a mile too far.  And I say to you, right at the outset, there's a huge difference in commonsense and in law between wanting to hurt somebody and wanting to kill them."[13]

[17] Defence counsel emphasised the standard and onus of proof.  After referring to the evidence, he submitted they could not be satisfied that the appellant intended to kill Mr Smith.  He added:

"And you have to have that intent, the intent to kill, when you use the knife.  And what the defence say to you, ladies and gentlemen, she never had that intent.  She went to hurt him.  She accepts that.  She pleads guilty to that.  But she never went to kill him."[14]

[18] The judge gave the following pertinent directions to the jury.  They could draw an inference of guilt only if guilt was the sole rational inference open in the circumstances.  If there was any reasonable hypothesis consistent with innocence, they must acquit.  They must be satisfied beyond reasonable doubt that the appellant intended to kill Mr Smith.  They must be satisfied beyond reasonable doubt that the inference of an intention to kill Mr Smith was the only reasonable inference open on the evidence which they accept.  It would not be sufficient to find that the appellant was recklessly indifferent as to whether he lived or not, but no more.  Nor would it be sufficient that she intended to do serious bodily harm, but no more.  The law requires an intent to kill.  His Honour did not tell the jury the meaning of the term "grievous bodily harm".

The trial judge's report

[19] The trial judge, unusually, raised matters which were apparently of concern to him in his report to this Court under s 671A Criminal Code 1899 (Qld).  Of relevance to this appeal, these included:

"There was only one issue at the trial: did the accused intend to kill the complainant when she stabbed him.  Necessarily this depended on circumstantial evidence.  Neither the evidence nor addresses by counsel were protracted.  In summing up, I saw no need to identify specific aspects of the evidence relied on by the defence as capable of constituting hypotheses consistent with innocence.

Although no ground of appeal raises the point,[[15]] it may be that the summing up would have better assisted the jury had it made that identification.  I am unable to refer to any aspect of the trial which would indicate what line of reasoning the jury adopted in order to exclude all hypotheses consistent with innocence."[16]

The appellant's contentions

[20] The appellant's contentions are as follows.  As defence counsel stated at trial, a reasonable hypothesis open on the evidence was that the appellant intended only to do grievous bodily harm to Mr Smith and not to kill him.  The trial judge's directions to the jury at the commencement of the trial[17] did not include a direction as to the meaning of grievous bodily harm; something much more serious than a simple intention to hurt.  Nor did his Honour direct the jury that the appellant's plea of guilty to count 2 amounted to an admission of an intention to do grievous bodily harm.  The judge's comments to the jury at the commencement of the trial, in the absence of later directions as to the meaning of grievous bodily harm, may have left the jury with the false impression that an intention to do grievous bodily harm was no more than an intention to hurt.  The judge's directions devalued the defence case.  Consistent with R v Collins; ex parte Attorney-General,[18] the judge should have left both counts 1 and 2 for the jury's consideration.  Had he done so, he would have explained the meaning of "grievous bodily harm" when directing the jury as to the elements of count 2.

[21] The trial judge in his report to the Court of Appeal appears to have apprehended as much.  The result is that, in the circumstances of this case, the failure to leave count 2 to the jury has led to a miscarriage of justice.  The appeal against conviction should be allowed, the convictions set aside and a retrial ordered.

The respondent's contentions

[22] The course taken by the judge in leaving only count 1 to the jury was open: Collins.[19]  The appellant's trial counsel took no objection to that course and did not seek any redirections on this issue.  The judge directed the jury that an intent to do serious harm was not sufficient to amount to an intent to kill.  This was an adequate direction in all the circumstances.  The process adopted of leaving only count 1 to the jury and the judicial directions given have not amounted to or caused a miscarriage of justice.  The appeal against conviction should be dismissed.

Conclusion

[23] It is rightly common ground that counts 1 to 3 were properly joined under s 567 Criminal Code.  Counts 1 and 2 were alternative counts; if the jury convicted on count 1, there could be no conviction on count 2.  The appellant's guilty pleas to counts 2 and 3 were formal admissions of the facts essential to those charges: Collins.[20]  This means that the appellant's guilty plea to count 2 was an admission that she stabbed Mr Smith intending to do him grievous bodily harm.  The term "grievous bodily harm" is defined in s 1 Criminal Code as meaning:

"(a)the loss of a distinct part or an organ of the body; or

(b)serious disfigurement; or

(c)any bodily injury of such a nature that, if left untreated, would endanger or be likely to endanger life, or cause or be likely to cause permanent injury to health;

whether or not treatment is or could have been available."

[24] The prosecution did not accept the guilty plea to count 2 in discharge of the indictment.  In those circumstances, there were alternative procedures open to the court.  The first was the procedure the court adopted here.  The court did not accept the guilty pleas to counts 2 and 3 prior to the jury trial commencing on count 1, either by administering the allocutus under s 648 Criminal Code, or by some other unequivocal expression of acceptance.  The guilty pleas did not therefore result in convictions for counts 2 and 3 at that time.  Instead, the judge, with the approbation of both counsel, had his associate note the guilty pleas on the court order sheet attached to the indictment but stood down counts 2 and 3 while the jury trial proceeded on the contentious count 1.  The appellant was placed in charge of the jury on count 1 alone.  The jury's subsequent return of a guilty verdict on count 1 meant that the court took no further action on count 2 which was only an alternative count activated by an acquittal on count 1.  The court acted on the guilty jury verdict on count 1 by formally convicting and sentencing the appellant on that count.  The guilty plea to count 2 then remained on the court file; as it had not been acted on, it had no effect.  Had the jury returned a not guilty verdict on count 1, the court would ordinarily then accept the appellant's guilty plea to the alternative count 2 by administering the allocutus and formally convicting and then sentencing her on that count.  See R v Cole[21] and Collins.[22]

[25] There was an alternative procedure open but it was one which neither counsel requested and which the judge did not adopt.  This was for the court to indicate that the guilty plea to count 2 was not accepted and to have the trial proceed before the jury on both the principal and the alternative counts.  The judge would then direct the jury as to the use they may make of the guilty plea to the alternative count should they find the appellant not guilty on the principal count.  This procedure would require the judge to explain the elements of the separate offences charged in both counts.  In this case, in respect of the alternative count 2, this would have included the explanation of the meaning of "grievous bodily harm".  The advantage of this alternative approach is that it makes it clear that the Court has not accepted the guilty plea on the alternative count prior to the trial of the principal count so that it cannot be argued that the principle of autrefois convict (double jeopardy or s 16 Criminal Code) operates to preclude a guilty verdict on the principle count: see R v Broadbent.[23]

[26] Whilst doubting whether the issue raised in the Victorian case of Broadbent about autrefois convict would be of concern in Queensland, McPherson JA and Lee J in Collins considered that the Broadbent approach was:

"… the more sensible.  It would seem consistent with the policy behind the initial joinder that the jury should have before it and be able to adjudicate upon all matters relevant to the case, bearing in mind always its entitlement to use the accused's admission and attach such weight to it as it thinks fit.  The procedure also provides the added attraction that, should the circumstances require it, a special verdict may be obtained under s 568(4)."[24]

[27] Fitzgerald P in Collins refrained from stating any general rule as to the preferred procedure but did not dissent from the proposition that when, as in the present case, there are alternative charges and a defendant has pleaded guilty to the lesser charge but the prosecution has not accepted that plea in discharge of the indictment, it will often be preferable to take the jury's verdict on both counts.[25]

[28] The practice in Queensland courts varies as to which of these alternative procedures are adopted, depending on the circumstances of the individual case and the submissions made by counsel.  There was no suggestion of a special verdict in this case.  Nothing said in Collins makes the procedure adopted in the present case an error of law; the judge was entitled to act on the wishes of both counsel and proceed to trial on count 1 alone.  Whilst in many cases it may be sensible to proceed to trial on both the principal and alternative counts, there is no fixed rule as to the preferred procedure.

[29] The central question in this appeal is whether a miscarriage of justice under s 668E(1) Criminal Code has occurred because the judge omitted to explain to the jury the meaning of grievous bodily harm so that they fully understood the distinction between an intention to do grievous bodily harm and an intention to kill.  This was critical to their deliberations on the central issue at trial: whether the prosecution had excluded beyond reasonable doubt the reasonable hypothesis that the appellant stabbed Mr Smith, not with an intention to kill him but with an intention to do him grievous bodily harm.  It is difficult to apprehend how the jury could genuinely determine this issue without knowing exactly what "grievous bodily harm" means.  My summation of the trial proceedings demonstrates that neither the judge's directions nor counsel's addresses explained the meaning of grievous bodily harm to the jury.  It is true that defence counsel in cross-examining Dr Allsopp read out part of the definition of grievous bodily harm.[26]  But in the absence of a direction with the authority of the judge as to its full meaning, the jury may have thought, as indeed defence counsel suggested in his closing address, that the difference between the relevant intentions was "between wanting to hurt somebody and wanting to kill them".[27]  An intention to do grievous bodily harm is much more than wanting to hurt somebody and is more complex than intentionally doing somebody serious bodily harm, the phrase used by the judge in his jury directions.[28]

[30] As the respondent points out, the judge made clear to the jury that they could only convict the appellant if they were satisfied beyond reasonable doubt that she intended to kill Mr Smith and that this was the only reasonable inference open on the evidence.  It is also true that his Honour instructed the jury that it was not sufficient to find that the appellant was recklessly indifferent as to whether Mr Smith lived or not, or that she intended to do serious bodily harm to him but no more.[29]  It may be argued, therefore, that the appeal should be dismissed as the verdict shows the jury accepted beyond reasonable doubt that the appellant intended to kill Mr Smith.  But in the absence of a comprehensive judicial direction as to the meaning of grievous bodily harm, I consider there is a danger, as the trial judge in his report to this Court has insightfully apprehended,[30] that the jury failed to fully consider the reasonable hypothesis well open on the evidence that the appellant formed an intention not to kill Mr Smith but rather to cause him grievous bodily harm.  To properly undertake their duties in this case, the jury had to know from the judge the full meaning of grievous bodily harm.  The effect of this omission, which was of course, unforeseen by trial counsel and the judge, amounts to a miscarriage of justice.

[31] For these reasons, I would allow the appeal, set aside the conviction and instead order a retrial.  It will be a matter for the prosecuting authorities to determine whether the interests of justice warrant a retrial rather than accepting the appellant's guilty plea to doing grievous bodily harm with intent.

[32] ATKINSON J:  I agree with the reasons of the President and the orders she proposes.

[33] HENRY J:  I have read the reasons of McMurdo P.  I agree with those reasons and the orders proposed.