R v Graham[2015] QCA 137

SUPREME COURT OF QUEENSLAND 

[1] MORRISON JA:  I agree with the orders proposed by Atkinson J and with the reasons given by her Honour.

[2] ATKINSON J:  On 30 September 2014, the appellant was found guilty of one count of attempted murder (count 1)[1] and one count of unlawful wounding with intent to cause grievous bodily harm (count 3).  On 3 November 2014, he was sentenced on these counts and on one further count on the same indictment to which he had already pleaded guilty, being unlawful possession of a category H weapon (count 4).  On count 1, he was sentenced to 12 years and three months’ imprisonment with a serious violent offence declaration; on count 3, to seven years’ imprisonment; and on count 4, to one year and six months imprisonment.  All sentences were to be served concurrently.

[3] The appellant has appealed against the convictions on counts 1 and 3 and made an application for leave to appeal against sentence.  At the commencement of the hearing in this court, an order was made extending the time for filing the application for leave to appeal the sentence to 19 December 2014, the date on which it was filed, and the appellant was also given leave to amend the Notice of Appeal.  Leave to amend the Notice of Appeal was necessary to allow the appellant to abandon the grounds appearing in the Notice of Appeal and replace them with the following:

“In light of the case put by the Crown to the jury on the issue of self-defence, the trial judge failed to:

(i) Properly identify the ‘assault’ to which self-defence was made, namely the threatened application of force constituted by the production of the flick knife;

(ii) Direct the jury on the issue of ‘consent’ to the ‘assault’ to which the appellant made self-defence; and in particular;

a. Failed to direct the jury that the issue was not whether the appellant had consented to some threat of violence antecedent to the relevant ‘assault’; and

b. Failed to direct the jury that consent arose as an issue only in relation to consent to the particular assault to which self-defence was made;

(iii)   Failed to direct the jury that there was no evidence upon which they could conclude that the appellant had consented to the threat of violence constituted by the production of the flick knife;

(iv)     Failed to leave s 24 of the Code for the consideration of the jury as to whether the appellant was honestly and reasonably mistaken that the production of the flick knife was a threat of violence.”

Evidence at the trial

[4] The evidence led at the trial showed that the offences occurred in the early afternoon of 28 April 2012 at the Robina Town Centre, a shopping complex on the Gold Coast.  It was a typical Saturday afternoon in a busy shopping centre crowded with families and other people shopping, when a confrontation between two members of different “bikie gangs” ended with one of them and an innocent bystander being shot.  Fortunately, no one was killed.

[5] The appellant, Mr Graham, went to the shopping centre on a shopping trip with family members.  Another man, Mr Teamo, was by coincidence at the shopping centre with his two young sons.  Both Mr Graham and Mr Teamo were armed.  Mr Teamo was carrying a knife in a Louis Vuitton shoulder bag which had a strap across his chest and sat on his right hip.  The appellant was carrying a hand gun in a pouch-type bag on a belt on his waist.  They apparently encountered each other by chance.

[6] CCTV footage from various cameras within the shopping centre, as well as evidence from eyewitnesses and admissions made by the appellant, established what happened.  Mr Teamo entered a Sony store in the shopping centre.  He was holding the hand of his younger son and had a David Jones bag in his other hand; his older son was walking close behind pushing a shopping trolley.  Mr Teamo was standing at the counter near to the entrance to the Sony store when the appellant strode past outside the store.  He was alone and not carrying any shopping.

[7] The appellant obviously saw Mr Teamo, as he stopped and can then be seen pacing back and forth outside the store.  The appellant appeared to feel, move and check something in the pouch at his waist, where, as was revealed in evidence, he was carrying a hand gun.  He then entered the store.  He could be seen walking around each of the walls of the store in turn, staring at Mr Teamo.  Mr Teamo’s sons, who had been wandering around the store, went back to their father.  Mr Teamo and Mr Graham stared at or “eyeballed” each other and, according to his older son, Mr Teamo said “What are you looking at?”.  The appellant then left the store and walked away from it.  As he left, Mr Teamo said to his older son “I’ll stab that guy.”  The appellant was by then out of earshot. 

[8] After a short interval, Mr Teamo walked out of the store by himself, appearing to touch something in his bag where the evidence showed he was carrying what is commonly referred to as a “flick knife”.  He then walked in the direction in which the appellant had gone.  He stopped and gesticulated in the appellant’s direction with his other hand in his bag.  Mr Teamo’s older son said his father said “What are you looking at?  You got a problem?”  Another witness, Mr Tan, said Mr Teamo said repeatedly “Are you looking at me?”  Witnesses describe them as both puffing out their chests to the other and each of them yelling at the other.  Mr Graham strode back towards Mr Teamo.  As Mr Graham approached Mr Teamo, each reached to arm himself.  At the point where Mr Graham reached into his bag, he dropped a $10 note.  A passer-by picked it up and gave it back to Mr Graham who took it with his left hand.  Mr Teamo took his knife out and extended the blade.  He then stopped and started backing away.  Who took out his weapon first was an issue on the trial.  Mr Graham advanced towards Mr Teamo, held up his gun in his right hand and pointed it at Mr Teamo, shooting at him once at close range and then a second time as Mr Teamo was running away from him in the other direction.

[9] One of the bullets, probably the first, struck Mr Teamo in the arm.  He was not seriously injured.  The other bullet struck Kathy Devitt, a shopper who was not otherwise involved in the incident.  Bullet fragments lodged in her right hip.

[10] Mr Graham walked away holding his gun in his hand.  Mr Teamo returned to the entrance to the Sony store, where his sons were waiting, and left the store.

[11] At the end of the evidence, the learned trial judge had discussions with counsel in the absence of the jury about what needed to be covered in the summing up.  The learned prosecutor raised the question of self-defence, including s 271(1), s 271(2) and s 272 of the Criminal Code.  With regard to the question of an assault, he submitted that the assault that would operate in the circumstances of this case was a threatened application of force rather than actual force.  He referred to the utility of the judge giving to the jury the definitions of assault and provocation from the Criminal Code.  The prosecutor referred to Court of Appeal authority for that proposition in R v Dean.[2]  The prosecutor referred to the fact that the jury might find that the threatened application of force involving the production of the knife constituted the assault, but in order to do so, they would have to take the view that Mr Teamo produced the knife first.  He submitted that the jury might find that the appellant produced the gun first.  He submitted that the jury might come to the view that what was involved before the production of any weapon was really just a consensual fight, a consensual threatened application of force, which is not an unlawful assault.

[12] The prosecutor submitted that if the jury were to accept there was an intent to kill, that would exclude s 271(1) as a defence.  The prosecutor submitted it would be necessary for the jury to consider s 271(2) because the assault, being the production of the knife, was such that they could infer raised a reasonable apprehension of death or grievous bodily harm.  The prosecutor then referred to s 272(1) of the Criminal Code and the circumstances in which the jury might find that that defence had not been excluded by the prosecution.

[13] Counsel for the appellant submitted that there would be no doubt that Mr Teamo produced the knife before the gun was produced by the appellant and that therefore there was no evidence of provocation on the part of the appellant.  He quite properly agreed, however, that that was a matter for the jury.

[14] It was apparent that the principal issue at the trial was whether or not the appellant’s actions were excused by self-defence; or, more accurately, whether the prosecution had excluded each of the three types of self-defence beyond reasonable doubt.  The three different types of self-defence are those found in s 271(1), s 271(2) and s 272(1) of the Criminal Code.

[15] When the court resumed in the absence of the jury before the addresses and summing up, the learned trial judge mentioned to counsel that he proposed to adjourn after addresses to discuss the draft summing up he had sent to each of them earlier that morning.

[16] The learned prosecutor then addressed the jury.  He told them that he would address a couple of areas that were in dispute.  The first was how many shots were fired and who was injured by each shot.  He submitted to the jury that there were two shots and that the first hit Mr Teamo and the second, Ms Devitt.  He demonstrated that by reference to the CCTV footage and evidence as to a discharged cartridge.

[17] The prosecutor then addressed the jury as to self-defence.  He said that there were three central propositions as to why they would accept, beyond reasonable doubt, that none of the self-defence provisions applied.

[18] In order to exclude self-defence, the prosecutor argued first that there was no assault in law because what occurred between the two men up until the gun was pulled out by the appellant was consensual.  His argument was that, if there was no assault as the law defines it, then the appellant was not acting in self-defence.  The prosecutor argued that it was not that cutting or stabbing was part of the consensual confrontation but that the threatening of each other with weapons was open to be considered as part of a consensual confrontation.  If the jury made that finding then the appellant was not acting in self-defence because he had not been assaulted as defined by law.  The prosecutor further argued that if the production of the knife was not part of a confrontation to which the appellant had consented, then the appellant had provoked that response from Mr Teamo by his own action in producing a hand gun from his waist bag.  If the jury found that the appellant provoked the assault from Mr Teamo then self-defence had been excluded.

[19] The second proposition put to the jury by the prosecutor was that the appellant used more force than he was allowed by law to use.  His submission to the jury was that even if the knife was produced before the gun, if the prosecution proved beyond reasonable doubt that the amount of force used was more than was allowed by law, then self-defence was excluded.  The factual basis of this was said to be that once the appellant raised his gun, Mr Teamo started backing away and so the appellant did not need to fire his gun at all, let alone twice.

[20] The third proposition was that the jury’s inference as to the appellant’s state of mind would exclude self-defence.

[21] The prosecutor then turned to the count of attempted murder and said that, in order to convict, the jury had to be satisfied that the appellant’s intent was to kill Mr Teamo.  It is unnecessary to traverse the other matters covered by the prosecutor in his address, as they are irrelevant to the appeal.

[22] The appellant’s counsel then addressed the jury.  He submitted to the jury that none of the charges had been made good by the evidence because the prosecution had failed to exclude beyond reasonable doubt the possibility that the firearm discharged by the appellant occurred in self-defence.  He submitted to the jury that on the totality of the evidence, they would be satisfied that it was Mr Teamo who intended to stab the appellant and it was Mr Teamo who pulled the knife in a menacing fashion before the appellant exposed and subsequently twice fired the hand gun.  He referred to the evidence of two of the witnesses, both of whom were facing Mr Teamo and saw him pull the knife out, and one of whom saw the appellant then hold up his right hand, point it in the direction of Mr Teamo and shoot.  The other witness saw Mr Teamo pull out the knife and then saw him grab his shoulder after he was shot.

[23] The appellant’s counsel then went through the CCTV footage from the shopping centre in detail with the jury.  He said that the prosecutor had asked them to be satisfied beyond reasonable doubt that the gun was pulled or removed from the bum bag by the appellant before the knife was produced by Mr Teamo.  He submitted that that did not sit with the oral evidence nor with the visual footage and at the very least, the visual footage made it impossible for them to arrive at the conclusion pressed upon them beyond reasonable doubt.  He referred to the fact that the passer by handed the appellant the $10 note he had dropped but did not give evidence that he noticed a gun in the appellant’s right hand.

[24] Counsel for the appellant submitted that, quite apart from self-defence, which was a complete defence to all charges, the prosecution case was defective because the evidence did not allow them to be satisfied that the appellant intended to kill Mr Teamo.

[25] After the appellant’s counsel completed his address he raised with the learned trial judge what the prosecutor had said about the failure of the appellant to give evidence.  The learned trial judge said that he would add something extra to his summing up to deal with that.

[26] The learned trial judge then went through the draft summing up with counsel until they were both satisfied with it.  The questions on a question trail were then considered and the learned trial judge said he had amended question 10, but that the question trail was otherwise the same as the draft prepared by counsel for the prosecution.  The appellant’s counsel said that he thought it was a very helpful document.

[27] The learned trial judge then proceeded to sum up to the jury on the relevant law, facts and issues they had to consider.  His Honour went through the elements of attempted murder and then dealt with self-defence.  He referred to the relevant evidence, including the question as to whether Mr Teamo had produced the knife before the appellant produced the gun.  He reminded them that the onus of excluding self-defence was on the prosecution.  He instructed the jury that if  the prosecution could not, to their satisfaction and beyond reasonable doubt, exclude the possibility that the firing of the gun by the appellant at Mr Teamo occurred in self-defence as the law defines it, the appellant’s use of force would be lawful and the jury would find him not guilty.

[28] His Honour provided the jury with a number of documents for their assistance.  He handed them separate sheets containing the definition of assault found in s 245 of the Criminal Code, the definition of provocation found in s 268(1) of the Criminal Code, and the provisions of s 271(1), s 271(2) and s 272(1) of the Criminal Code relating to self-defence.

[29] His Honour then gave detailed directions with regard to each of the three different types of self-defence.  The learned trial judge then summed up on the other counts on the indictment.  There is no complaint about that.  The learned trial judge them summarised the addresses made by the Crown Prosecutor and defence counsel.  When going through the prosecution’s submission his Honour reminded the jury that they were just submissions and arguments not evidence concluding by saying with regard to the prosecution’s submissions “These again are not matters of evidence.  They are matters of interpretation, construction and argument put to you by the Crown Prosecutor.”  The learned trial judge then summarised the submissions by defence counsel.  Both summaries fairly and accurately gave a précis of the submissions made by counsel for the prosecution and for the defence.

[30] In redirections he gave each member of the jury written documents setting out his directions on self-defence.  Because of the utility of those written documents as well as their importance to this case, I shall set them out in full.  They formed the basis of the oral summing up the judge gave to the jury.  His oral summing up was more expansive as to the evidence and included an explanation of the meaning of unlawful assault and provocation and the evidence relevant to those issues.  These are the contents of the documents given to the jury by the trial judge:

“Section 271(1) – self defence against unprovoked attack

271(1)When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for the person to use such force to the assailant as is reasonably necessary to make effectual defence against the assault, if the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm.

There are four matters you must consider in respect of this defence:

1.There must have been an unlawful assault on the defendant, Mr Graham.

2.The defendant must not have provoked that assault.  “Provocation” means any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, to deprive him of the power of self control, and to induce him to assault the person by whom the act or insult is done or offered.

3.The force used by the defendant must have been reasonably necessary to make effectual defence against the assault.

4.The force used by the defendant was not intended and was not such as was likely to cause death or grievous bodily harm.

The burden remains on the prosecution at all times to prove that Mr Graham was not acting in self-defence, and the prosecution must do so beyond reasonable doubt before you could find him guilty.

In respect of this defence if the prosecution satisfies you beyond reasonable doubt:

1.That the defendant Mr Graham was not unlawfully assaulted by Mr Teamo; or

2.That the defendant gave provocation to Mr Teamo for the assault; or

3.That the force used by Mr Graham was more than was reasonably necessary to make effectual defence; or

4.That the force used by Mr Graham was either intended or was likely to cause death or grievous bodily harm;

then the prosecution has proved that the defence does not apply.

There is no burden on the defendant to satisfy you that he was acting in self-defence.  The prosecution must satisfy you beyond reasonable doubt that he was not.

Section 271(2) – self defence against unprovoked attack where there is death or grievous bodily harm

271(2)If the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm, and the person using force by way of defence believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm, it is lawful for the person to use such force as is necessary for defence, even though such force may cause death or grievous bodily harm.

The first matter that arises is, again, whether Mr Graham was unlawfully assaulted by Mr Teamo.  Remember what I said to you about the meaning of ‘assault’ – it does not have to involve actual physical assault: a movement or a gesture may constitute an assault, but more than that: … a threat to apply force of any kind … under such circumstances that the person has, actually or apparently, a present ability to affect the person’s purpose …’ can constitute an assault.

The second question is whether that assault by Mr Teamo was of such a nature as to cause reasonable apprehension, on Mr Graham’s part, of death or grievous bodily harm.  “Grievous bodily harm” means any bodily injury of such a nature that, if left untreated, it would endanger or be likely to endanger life or cause or be likely to cause permanent injury to health.  If, for example, you find that Mr Teamo produced a knife in a way that threatened Mr Graham, was that an act of such a nature as to put Mr Graham in reasonable fear for his life, or physical safety?

The next matter is that if there was such an assault by Mr Teamo, whether the defendant Mr Graham provoked that assault.  Again, you may think it appropriate to consider it by reference to what happened in the Sony store and outside it, before the shooting.  You have, again, heard the rival contentions.  Are you persuaded, beyond reasonable doubt, that whatever Mr Graham did before the shooting constituted ‘provocation’ of Mr Teamo?

The critical question under this second arm of self-defence is whether Mr Graham believed on reasonable grounds that the force he used was necessary for his own defence.  The important issue is the state of mind, or belief, of Mr Graham.  The question is whether the prosecution has proved beyond reasonable doubt that Mr Graham did not actually believe on reasonable grounds that it was necessary to do what he did to save himself from death, or grievous bodily harm

The defendant does not have to prove that his response was reasonable.  The prosecution must satisfy you that he did not actually believe, on reasonable grounds, that he had to do what he did to save himself from being killed or from a very serious injury.

You will need to assess, looking at all the circumstances of the case, the level of physical menace which you think that Mr Teamo was actually presenting, before the force was used by the defendant – that is, before he used the gun.

Remember that a person defending himself cannot be expected to weigh precisely the amount of defensive action which may be necessary.  Instinctive reaction and quick judgment may be essential and you should not judge the actions of the defendant as if he had the benefit of safety and leisurely consideration.

If, under this provision, the prosecution satisfies you beyond reasonable doubt:

1.That the defendant was not unlawfully assaulted by Mr Teamo; or

2.That the defendant gave provocation to Mr Teamo for the assault; or

3.That the nature of the assault (by Mr Teamo) was not such as to cause reasonable apprehension on Mr Graham’s part of death or grievous bodily harm; or

4.That Mr Graham did not actually believe on reasonable grounds that he could not otherwise save himself from death or grievous bodily harm;

then the defence is excluded.

There is no burden on the defendant to satisfy you that he was acting in self-defence.  The prosecution must satisfy you beyond reasonable doubt that he was not.

Section 272(1) – self defence against provoked assault

272(1)When a person has unlawfully assaulted another or has provoked an assault from another, and that other assaults the person with such violence as to cause reasonable apprehension of death or grievous bodily harm, and to induce the person to believe, on reasonable grounds, that it is necessary for the person’s preservation from death or grievous bodily harm to use force in self-defence, the person is not criminally responsible for using any such force as is reasonably necessary for such preservation, although such force may cause death or grievous bodily harm.

Matters for consideration are:

• Whether the defendant had provoked an assault from Mr Teamo;
• Did the defendant Mr Graham have a reasonable apprehension of death or grievous bodily harm?
• Did the defendant believe, on reasonable grounds, that it was necessary in order to preserve himself from death or grievous bodily harm to use force in self-defence?
• Was the force used by the defendant such as was reasonably necessary to preserve him from death or grievous bodily harm?

If the prosecution exclude any one of those four matters beyond reasonable doubt, then that excludes this possible defence.

Additionally, this defence does not apply where:

• The defendant Mr Graham first began the assault with intent to kill or to do grievous bodily harm to Mr Teamo;
• Nor, where the defendant endeavoured to kill or to do grievous bodily harm to Mr Teamo before the necessity of so preserving himself arose;
• Nor, in either case, unless, before such necessity of so preserving himself arose, the defendant declined further conflict and quitted it or retreated from it as far as was practicable.

If the prosecution satisfy you beyond reasonable doubt that:

1.The assault by Mr Teamo was not of such violence as to cause reasonable apprehension of death or grievous bodily harm; or

2.The assault did not induce Mr Graham to believe, on reasonable grounds, that it was necessary for his own preservation from death or grievous bodily harm to use the force he used in self-defence; or

3.The force used by the defendant was more than was reasonably necessary to save the defendant from death or grievous bodily harm; or

4.The defendant first began the initial assault with intent to kill or to do grievous bodily harm to Mr Teamo; or

5.The defendant endeavoured to kill or do grievous bodily harm to Mr Teamo before the necessity of so preserving himself arose; or that

6.In either case, unless, before such a necessity for self-defence arose, the defendant declined further conflict, and quitted it, or retreated from it as far as practicable;

then the defence is excluded.

It is for the prosecution to satisfy you beyond reasonable doubt that self-defence does not apply.  There is no burden on the defendant to satisfy you that he was acting in self-defence, or to establish any one of these things.”

[31] At the end of his summing up, the learned trial judge gave the jury a question trail to assist them in their task of reaching a verdict.  He explained its utility to them as follows:

“[W]hat it’s intended to do is to provide you with a pathway – a flowchart, as it were – through the three charges comprising counts 1, 2 and 3 on the indictment, and it’s intended to assist you in a number of ways: first it asks the questions you need to answer to decide the defendant’s guilt or innocence in light of the evidence you have before you, and the directions that I will now give you on the law which applies to the different charges.  Secondly, it focuses directly, in question two, on something that was discussed at length in the addresses from the lawyers: has the Prosecution proved beyond reasonable doubt that Mr Graham was not acting reasonably in his own self-defence when he fired the two shots that hit Mr Teamo and Mrs Devitt?

Third, it’s intended to provide you with a logical path through charge 1 or its alternative, charge 2, and charge 3.  You will see, for example, that it shows you that if you answer a central question about one charge in a particular way, then that has consequences in terms of the finding you should make about Mr Graham’s guilt or innocence and informs you – again, for example – that you may either cease your deliberations about that charge on reaching that conclusion, or alternatively, that you should proceed to a later question and ignore some earlier ones.”

[32] The learned judge gave each member of the jury the following question trail:

“1.Has the prosecution proven beyond reasonable doubt that the defendant intended to kill Jacques Teamo by firing the firearm at him?  If yes, go to question 2.  If no, the defendant is not guilty of the offence of Attempted Murder and go to question 3.

2.Has the prosecution proven beyond reasonable doubt that the defendant was not acting in self defence when he fired the firearm at Jacques Teamo?  If yes, the defendant is guilty of the offence of Attempted Murder and go to question 6.  If no, the defendant is not guilty of the offence of Attempted Murder and go to question 3.

3.Has the prosecution proven beyond reasonable doubt that Jacques Teamo was wounded?  If yes, go to question 4.  If no, the defendant is not guilty of the offences of Malicious Act with Intent in Count 2 and of Unlawful Wounding arising from count 2 and go to question 6.

4.Has the prosecution proven beyond reasonable doubt that the defendant was not acting in self defence when he fired the firearm at Jacques Teamo and wounded him?  If yes, go to question 5.  If no, the defendant is not guilty of the offence of Malicious Act with Intent in count 2 and of Unlawful Wounding arising from count 2, and go to question 6.

5.Has the prosecution proven beyond reasonable doubt that the defendant intended to maim Jacques Teamo by firing the firearm at him?  If yes, the defendant is guilty of the offence of Malicious Act with Intent and go to question 6.  If no, the defendant is not guilty of the offence of Malicious Act with Intent in count 2 but is guilty of the offence of Unlawful Wounding arising from count 2 and go to question 6.

6.Has the prosecution proven beyond reasonable doubt that Kathy Devitt was wounded?  If yes, go to question 7.  If no, the defendant is not guilty of the offences of Malicious Act with Intent in count 3 and of Unlawful Wounding arising from count 3 and you need not consider any more questions.

7.Has the prosecution proven beyond reasonable doubt that the defendant was not acting in self defence when he wounded Kathy Devitt?  If yes, go to question 8.  If no, the defendant is not guilty of the offence of Malicious Act with Intent in count 3 and of Unlawful Wounding arising from count 3, and you need not consider any more questions.

8.Has the prosecution proven beyond reasonable doubt that the wounding of Kathy Devitt, or of any other person other than Jacques Teamo, was reasonably foreseeable by the defendant as a possible outcome of firing the firearm as the defendant did or was reasonably foreseeable by an ordinary person in the position of the defendant as a possible outcome of firing the firearm as the defendant did?  If yes, go to question 9.  If no, the defendant is not guilty of the offences of Malicious Act with Intent in count 3 and go to question 10.

9.Has the prosecution proven beyond reasonable doubt that the defendant intended to maim Jacques Teamo when Kathy Devitt was wounded?  If yes, the defendant is guilty of the offence of Malicious Act with Intent in count 3 and you need not consider any more questions.  If no, the defendant is not guilty of the offence of Malicious Act with Intent in count 3 and go to question 10.

10.Has the prosecution proven beyond reasonable doubt that the defendant failed in his duty to use reasonable care and take reasonable precautions in the handling and management of the firearm and that his breach of duty is sufficiently grave to be deserving of criminal punishment?  If yes, the defendant is guilty of the offence of Unlawful Wounding.  If no, the defendant is not guilty of the offence of Unlawful Wounding.”

The appellant’s submissions

[33] The appellant’s submissions criticised the address given by the learned Crown Prosecutor and consequently, the summing given by the trial judge for its failure to deal properly with the submissions made to the jury by the Crown Prosecutor.

[34] It was submitted that the prosecutor’s first proposition, that there was a consensual confrontation until the gun was pulled out, was wrong and misleading.  There was no evidence that the appellant had consented to being threatened with a flick knife or to being cut and stabbed.  It was therefore necessary for the jury to consider the assault which enlivened self-defence – that is, the threatened application of force constituted by the production of the knife – and then whether the appellant had consented to that assault.

[35] The appellant submitted that the trial judge should have clearly identified the relevant assault as being the production of the flick knife; directed the jury that the production of a flick knife could be found by them to be a threatened application of force; directed the jury on s 24 of the Code to the effect that, if the production of the knife was not a threatened application of force, but the appellant honestly and reasonably mistook it to be so, then the jury had to proceed on the basis that there was an assault; directed the jury that there would be no assault for the purpose of s 271 and s 272 only if the appellant consented to the particular assault; directed the jury that there was no evidence upon which they could find that the appellant consented to being threatened with the flick knife; and directed the jury that the real relevance of the antecedent confrontation was to issues arising under s 24 and to the reasonable necessity to make defence or the belief and the reasonableness of the belief that the appellant had to use force to make defence.

Consideration

[36] The appellant’s submissions simplify the submission actually made by the prosecutor at trial.  The prosecutor’s submission to the jury about whether or not there was an unlawful assault was based on two alternative findings of fact which were open to the jury.  If the knife was drawn before the gun, was threatening each other with weapons part of the consensual confrontation?[3]  If the gun was drawn first, was that provocation for Mr Teamo to pull out his knife?  These were questions that the jury could consider in deciding whether or not there was an unlawful assault, and whether or not any such assault was provoked.

[37] As can be seen by the documents handed to the jury by the learned trial judge about each of the three types of self-defence, the first matter that the jury had to be concerned with was the question of whether or not Mr Teamo assaulted Mr Graham before Mr Graham shot Mr Teamo.  As the learned trial judge correctly pointed out to the jury, assault “does not have to involve actual physical assault: a movement or gesture may constitute an assault, but more than that: … a threat to apply force of any kind … under such circumstances that the person has, actually or apparently, a present ability to affect the person’s purpose … can constitute an assault.”  Whether or not there was an assault was a factual question that the jury had to determine.  The Crown Prosecutor correctly pointed out that lack of consent was an essential element of the offence of assault.  There was no further need for the issue to be addressed by the trial judge and neither counsel asked him to do so whether by way of emphasis or correction.

[38] The trial judge provided the jury with the correct legal test as to the meaning of assault and directed them correctly as to the relevance of whether the gun or the knife was drawn first, inviting the jurors to make up their own minds about that.  The answer to those factual questions was within the province of the jury.  The issue was put fairly and correctly by the trial judge and there was nothing about the Crown Prosecutor’s characterisation of this issue in his submissions which needed to be corrected by the judge.  They were, after all, as his Honour told the jury, not evidence but “matters of interpretation, construction and argument” put to them by the Crown Prosecutor.

[39] As to the complaint of a failure to direct in accordance with s 24 of the Criminal Code, no such direction was sought at the trial.  There was no evidentiary basis for suggesting that if the production of the knife was not a threatened application of force, the appellant might nevertheless have honestly and reasonably believed it to be so.  This distinguishes the factual circumstances of this case from those in R v Allwood,[4] where the appellant claimed that the man he shot was aiming a rifle at him and he believed that he was intending to shoot him.  There, the appellant fired first and killed the man whom he believed was intending to shoot him.  In such a case, his belief, if it was honest and reasonable, even though mistaken, would provide him a defence because such a belief would entitle him under s 24 of the Criminal Code to be treated as if the real state of affairs was as he had mistakenly believed it to be.

[40] In this case, there is no evidentiary basis for suggesting that the appellant had an honest and reasonable but mistaken belief that the production of a flick knife was a threatened application of force when it was not in fact a threatened application of force.  It was not necessary for the learned trial judge to refer to s 24 in his summing up and the failure of defence counsel to raise on the trial any suggestion that his Honour should so direct is consequently understandable.

Conclusion

[41] There was no error made in the careful summing up given by the learned trial judge.  The appeal should be dismissed.

Application for leave to appeal against sentence

[42] The application for leave to appeal against sentence is only with regard to the 12 years and three months’ imprisonment imposed on count 1.  It should be noted that the learned sentencing judge imposed this sentence on count 1 to reflect the applicant’s overall criminality for each of the three offences, including the offence of unlawful wounding with intent to cause grievous bodily harm.  As the sentencing judge observed, that offence led to the wounding of an innocent bystander during a violent affray in a public place.

[43] In order to demonstrate that the sentence imposed was manifestly excessive, the applicant submitted that the learned sentencing judge should have made findings which would lead to a conclusion that self-defence was excluded only on the basis that excessive force was used in self-defence to a life threatening assault by an aggressive man armed with a knife.  There was, in my opinion, no reason why the sentencing judge was obliged to accept such an exculpatory explanation for the applicant’s behaviour.  What was of most significance were the facts to which the learned judge referred.

[44] The offence of attempted murder in this case exhibited a number of egregious characteristics.  It involved the use of a gun in a crowded shopping centre, which was likely to kill or injure not only the applicant’s intended target, but also members of the public going about the activities of ordinary daily life.  The applicant had gone into the shopping centre armed with a concealed loaded handgun.  He could have avoided any confrontation with Mr Teamo but chose to engage in such confrontation.  If, at some point, he felt compelled to defend himself, his response was “grossly disproportionate and excessive and unjustified and unwarranted.” At the point when Mr Graham shot Mr Teamo, Mr Teamo was backing away in retreat.  Such behaviour as Mr Graham’s warrants strong condemnation by the court.

[45] The applicant had a criminal history for minor drug offences and was on bail for possession of an unlawful handgun and possession of body armour.  Those offences were committed in November 2011.  He was convicted of them and sentenced in January 2014 to a wholly suspended period of imprisonment of six months on the firearms charge.

[46] Personal factors in the applicant’s favour include that he had conducted profitable tattoo businesses employing a number of people and he was in a stable relationship at the time of sentencing.  The learned sentencing judge referred to submissions suggesting that the applicant had reasonable prospects of rehabilitation.  The applicant did not, however, have the ameliorating effect of being sentenced on a plea of guilty.

[47] The applicant had spent 17 months in pre-sentence custody which was not declarable.  The learned sentencing judge said that he was incarcerated in excessively stringent and unpleasant conditions and accordingly reduced the sentence that he would otherwise have imposed by 21 months. 

[48] The sentence of 12 years and three months imposed therefore reflected a notional head sentence of 14 years’ imprisonment.  In this court, the applicant submitted that when compared to sentences for comparable offending the sentence was manifestly excessive.

[49] The principal authority relied upon by the sentencing judge in fixing the appropriate sentence was R v Forster.[5]  There, the applicant had pleaded guilty at the earliest possible stage to one charge each of attempted murder and grievous bodily harm.  He was sentenced to 12 years’ imprisonment on the first count and one year on the second count, to be served concurrently.  The victim of the attempted murder was the applicant’s former wife, while the victim of the other assault was a stranger who intervened in that attack.  The offences occurred in the shop run by the applicant’s former wife.  She required surgery to remove a bullet, which left her with severe scarring and impairment to one arm.  She also had to close her business and suffered financial difficulties as a result of the applicant’s offending.

[50] The applicant had a history of depression, anxiety, and self-medication with alcohol.  He had lost his job and been unable to find new employment, as well as having separated from his wife not long before the offences were committed.  All of this led to a deterioration in his mental state.  Although he had been drinking on the day in question, expert evidence indicated that he would not have been impaired by this.  The evidence indicated that the applicant had intended first to kill his former wife and then commit suicide.  The Court of Appeal found that the learned sentencing judge had taken all relevant mitigating factors (including his previous good record, age of 62 years at the time of the offences, and guilty plea) into account, however the offence was pre-meditated and it was only through the actions of the second victim that the murder intended was avoided.

[51] The Court of Appeal confirmed the sentence of 12 years’ imprisonment.  In so doing, the court referred to a number of cases including R v Reeves,^[6] where Williams JA had identified the ‘range’ for attempted murder at that time as between 10 and 17 years.  The Court of Appeal noted that “an examination of recent sentences confirms this assessment”,^[7] with 12 years being at the lower end of that ‘range’.  McPherson JA (with whom Davies JA and Dutney J agreed) finally observed that “[u]sing firearms in circumstances like these has, we know, the strong condemnation of the whole Australian community”.^[8]

[52] R v Reeves was also referred to by the applicant in this case.  McMurdo P and Byrne J agreed with the reasons of Williams JA, although Byrne J preferred not to express a view as to the ‘range’ referred to above.  The applicant there had been convicted of attempted murder after a trial.  The offence was precipitated by a decision on the part of the appellant and others that “in consequence of the complainant’s alleged sexual misbehaviour he should be killed”.^[9]  It was carried out with the use of a sawn-off rifle and in such a way as to inflict severe suffering via modification of the bullet.  The victim was shot in the buttock and required several serious operations, but was fortunately left without any major injuries.

[53] The applicant had been sentenced to 14 years’ imprisonment, which was affirmed on appeal due to the high degree of planning, the modification of the bullet, and the applicant’s lengthy criminal history (including for several offences of serious violence).  For those reasons, the sentence could not be considered manifestly excessive.  Byrne J observed in addition that he considered the sentence lenient in the circumstances.

[54] In R v Tevita,[10] McPherson JA, Chesterman and Mullins JJ in a joint judgment dismissed an application for leave to appeal against sentence in circumstances where the applicant had been convicted to 18 years’ imprisonment for one count of attempted murder and five years’ imprisonment, to be served concurrently, for stealing.  A serious violent offence declaration was made as an automatic consequence of the sentence on the first count.

[55] The victim of the offences was a man who used a wheelchair, having had cerebral palsy since birth and, as a result, having only restricted movement of his upper limbs.  He was unable to defend himself from the applicant’s attack, which consisted in an approach from behind with a knife and a deep cut to the victim’s jugular vein, followed by three stabs to the back.  The victim called 000 but was unable to speak; he was, however, able to move himself outside his flat, where his neighbours saw him and called an ambulance.

[56] The victim had previously lived an independent and active life, but was left unable to speak above a whisper or to eat easily due to injuries to his larynx.  He also continued to suffer severe back pain from the stab wounds.  He came to require a fulltime carer and his quality of life was significantly reduced.

[57] The applicant had emigrated to Australia from New Zealand at the age of 12, but had already been expelled from school for fighting by that age and was subsequently expelled from two high schools in Brisbane.  He then ceased attending school and appears from the age of 17 to have become involved in stealing to pay for drugs and alcohol, to which he was addicted.  Expert evidence indicated that the applicant had a low average range of intellectual functioning and that his family environment was one of violence, which had led to his early abuse of various substances and consequent offending.

[58] The applicant had a co-accused, who was awaiting trial at the time of the applicant’s sentencing.  It is alleged that the co-accused, an acquaintance of the applicant who also had cerebral palsy and lived with the victim, offered to pay the applicant $500,000 to kill the victim.  It also appeared that the applicant was somewhat under the influence of the co-accused.

[59] The Court of Appeal observed that there was little to be said in mitigation, due to the cruelty of the crime, its motivation by money, and its devastating consequences for the victim.  The applicant was just over 17 years old at the time of the offending, however the court observed that “it does not require much maturity to know not to commit such an awful offence”.^[11]  He had shown little remorse apart from his guilty plea.

[60] The court remarked upon the great variety of circumstances in which offences of attempted murder occur and the consequent variation in sentences, then made the following observation:

“It does not seem to have been the practice for the Crown to charge an accused who is indicted for attempted murder with other separate offences of doing grievous bodily harm and the like, as might have been done in the present case.  To that extent, courts do not seem in this area to apply the ruling in The Queen v De Simoni[12] that no one should be punished for an offence of which he has not been convicted.  Instead, the consequences for the victim have been used in determining the scale of the sentence to be imposed for the major offence.  That may be because the maximum sentence for attempted murder being life imprisonment, the wrongdoer is in any event faced potentially with a sentence of the longest duration allowed by law.” ^[13]

[61] The consequences for the victim were very serious; although noting the ‘range’ suggested again by Williams JA in R v Rochester; ex parte Attorney-General (Qld)^[14] of 10 to 17 years, as well as that in R v Hewitt of 12 to 18 years,^[15] the court considered that the 18 years imposed could not be considered manifestly excessive.

[62] Rochester was also relied upon by the present applicant.  That case involved cross-appeals of sentence by both the offender and the Attorney-General.  Both were dismissed by orders of Williams JA, with whose reasons Mackenzie and Helman JJ agreed.  The applicant had been convicted at trial of the attempted murder of his wife and sentenced to 10 years’ imprisonment.  He had originally pleaded not guilty to attempted murder and offered to plead guilty instead to grievous bodily harm with intent.  However, that plea was not accepted by the prosecution in discharge of the indictment, with the result that trial followed.  The applicant accepted having stabbed his wife at her place of work, but consistently denied having wanted to kill her.

[63] The applicant had inflicted multiple stab wounds, causing injury to several internal organs.  There was evidence that, without treatment, it was highly likely that the victim would have died of her injuries, albeit not directly but due to “infective complications”.^[16] There was also evidence before the jury, due to a separate charge of aggravated stalking, of various conduct of the appellant in breach of a Domestic Violence Order.  The applicant, who was self-represented before the Court of Appeal, focussed his arguments on the fact that, as he would be required to spend at least 80 per cent of his term in prison due to a serious violent offence declaration, he would miss seeing his children grow up as he would be about 60 years old when released.  The applicant referred to R v Jurcik,^[17] in which a sentence of nine years was imposed, with parole eligibility after serving 50 per cent of the sentence.  However the court considered that case to be distinguishable and did not further comment on the applicant’s arguments.

[64] The applicant in Rochester was noted to have had “a very extensive criminal record”,^[18] having first been imprisoned at the age of 18.  He had 12 previous convictions for assault or related offences between 1976 and 1999, some of which had attracted custodial terms.  This was emphasised by the Attorney-General, as was the nature of the offence, and the fact that it was committed in a public place with several persons present as well as in breach of Domestic Violence Order.  Several cases referred to for the Attorney-General were considered by Williams JA to confirm the ‘range’ ascertained in Reeves of 10 to 17 years, within which the applicant’s sentence fell.  His Honour considered that anything below 10 years would have been manifestly inadequate but that a term of 10 years itself was not so low as to warrant interference by an appellate court.

[65] Jurcik was also referred to by the applicant in the present case.  There, an application for leave to appeal against sentence was refused.  A conviction stood for one count of attempted murder, with alternative counts of unlawful wounding with intent to do grievous bodily harm, and unlawful wounding.  The applicant had sought to plead guilty to the last in discharge of the indictment, but this was not accepted and the matter proceeded to trial.

[66] The victim in that case was a sex worker, whose services the applicant had employed on several occasions prior to the offence.  The applicant stabbed her ten times as they were about to have sex on his boat.  The victim managed to escape when the knife broke, then gained the attention of passing motorists.  The applicant’s motivation for the crime was that he believed the sex worker to have caused him to have given his wife a severe case of thrush.  He had made admissions to his wife, which at one point included an allegation that the victim had first tried to stab him.

[67] The applicant was 43 years old at the time of the offence.  He had previously received fines for non-violent offences but otherwise had no convictions.  He had a 20-year habit of smoking large quantities of cannabis daily and also used amphetamines from time to time.  He told a consultant psychiatrist that he used drugs to deal with his depression.  He had recently lost his job.  After the offence, however, he gradually gave up his drug use, which also improved his mental state.

[68] The victim was found to have made a good physical recovery, although it was not clear that the same could be said regarding the effect on her psychological wellbeing, in the absence of a victim impact statement.

[69] Several comparatives relied on in that case are also referred to by the present applicant: R v Bitossi,^[19] R v Farquhar^[20] and R v Kingelty and Griffiths.^[21]  With respect to the latter two, White J’s summaries of each in Jurcik may be adopted:^[22]

“The applicant in R v Farquhar… was sentenced to eight years imprisonment in respect of the attempted murder of the man with whom she had been living.  She assaulted him by jumping on his head and hitting him with a bottle.  She delivered bare foot kicks to his head while he was unconscious and jumped on his stomach.  The complainant was left with serious symptoms wherein his balance was greatly impaired and he had speech and memory problems due to the severity of his head injuries.  The applicant had a previous conviction for unlawfully wounding the same man and was psychiatrically disturbed.  The sentence was not disturbed on appeal.  In the course of his remarks Dowsett J noted that there was a tendency to concentrate in such cases

“… too much upon the assault and too little upon the element of intent.  The gravamen of the offence of attempted murder is precisely that – that there was an intention to kill,” p4.

In R v Kingelty and Griffiths … the applicants for leave to appeal against sentence had pleaded guilty to attempted murder and were sentenced to terms of imprisonment of eight years and ten years respectively.  In Kingelty’s case a declaration of a serious violent offence was made.  The applicants were aged 24 and 22 respectively and had no relevant previous convictions.  Because of past grievances they decided to attack the complainant who had been in a de facto relationship with Kingelty.  Griffiths engaged in a violent attack with a cane knife whilst Kingelty waited outside in the get-away vehicle and shouted encouragement.  The complainant suffered a fractured skull and a serious injury to his arm.  The sentences were not altered on appeal and would suggest that the sentence here [in Jurcik, of 9 years,] was within range.”

[70] In Jurcik, the Court of Appeal noted that the learned sentencing Judge had described the attack as an appalling and unprovoked one upon a vulnerable woman.  The applicant’s good work record, lack of criminal history and rehabilitation were taken into account, however the need for deterrence was also emphasised.  Nonetheless, a serious violent offence declaration was not made.  In the circumstances, the sentence could not be considered manifestly excessive.

[71] In Bitossi, the appellant was sentenced to seven years and four months on one count of attempted murder, with concurrent sentences for one count of grievous bodily harm and two counts of unlawful wounding.  He had been convicted at trial of all counts.  The sentences were not disturbed by the appellate court, as only the conviction was appealed against.  Nonetheless, it is relevant to note the circumstances in which the offences occurred.  The appellant had discharged a shotgun in a public place, being the Sportsman’s Bar at the Broadbeach Hotel.  Several bystanders were injured, while the main victim was the object of the attempted murder charge.  The degree of injury to the main victim is not apparent from the appeal judgment.  The case was a circumstantial one, as no one had actually seen the appellant shoot nor had he confessed.  Despite this, the fact that the jury convicted on attempted murder indicates the presence of the requisite intention for murder, which subsequent cases have emphasised.  It may be observed that the sentence in this case was considerably lower than in most others; however, it should also be appreciated that the offender was sentenced some 30 years ago, before existing gun control laws were passed and perhaps before the seriousness of firearms offences was fully appreciated by the legislature and the community.

[72] In R v Harms,^[23] also referred to by the present applicant, a sentence of nine-and-a-half years was affirmed on appeal.  The applicant had been convicted of attempted murder after a trial and sought an extension of time in which to seek leave to appeal the sentence.  That application was refused, however, as the sentence was considered to be “within range” and nothing was put before the court indicating that a sentence application would have merit.  Davies JA, with whom Byrne and Holmes JJ (as she then was), adopted the comments of counsel for the respondent, saying that the crime was “a callous and premeditated shooting in an execution style intended, it appears, … to silence a person whom [the applicant] thought was informing on his illegal drug operations”.^[24]

[73] In R v Witchard; ex parte Attorney-General (Qld),^[25] the applicant had been sentenced to 12 years’ imprisonment, while her co-accused in that attempted murder received a sentence of six years with a serious violent offence declaration.  Only Witchard applied for leave to appeal her sentence, while her co-accused in the attempted murder appealed conviction.  The Attorney-General cross-appealed the sentence of each.  Witchard’s sentence was subsequently increased to 15 years, with a corresponding increase to the sentence of her co-accused to nine years, maintaining the declaration.   Essentially, the attempt on the victim’s life involved two co-accused and a premeditated plan, as part of which Witchard made untested allegations of rape.  The offences occurred in the nightclub that Witchard, the victim and two others ran.  The victim was stabbed several times with a hunting knife and left bleeding, meanwhile being taunted that he was going to die.  He was treated in hospital for over a month and his injuries resulted in partial paraplegia due to spinal cord damage caused by the stab wounds, although he managed to rehabilitate to some degree.

[74] The learned sentencing judge took into account the fact that the motive for Witchard’s attack was to advantage herself in relation to the nightclub and that she involved two others in the plan.  It was noted that she did not carry out her intention to kill the victim, although this was possibly due to the fact that she could not do it herself nor force her co-accused to do it for her.  The learned sentencing judge did not consider Witchard a particularly dangerous criminal and did not accept the submission that this was one of the most serious offences of its kind.

[75] The Court of Appeal did not accept the Attorney-General’s challenges to the sentencing judge’s findings of fact, but nonetheless increased Witchard’s sentence due to the particular cruelty with which the offence was carried out, involving aggravating features not present in R v Byers; ex parte Attorney-General^[26] with which it was compared.  Further, the sentence in that case was noted by the Court of Appeal to be low.  Mullins J, in remarks concurred in by de Jersey CJ and Mackenzie J, observed that, “although Witchard’s offence was not the worst example of attempted murder, it was a serious and not an ‘ordinary’ case of attempted murder”,^[27] such that the appropriate sentence was of 15 years.

Consideration

[76] The factors that distinguish this case from Forster and Reeves, relied on by the applicant, tend to show why the sentence imposed was not manifestly excessive.  With respect to the former, Forster had pleaded guilty, and McPherson JA said the sentence was “at the lower end of the range”.  Reeves concerned less serious offending as there was only one victim and the applicant had not endangered other innocent people in public places.  Byrne J there observed that the sentence was “lenient”.  With respect to other authorities relied upon by the applicant, Rochester, Jurcik and Kingelty each involved only one victim.  None occurred in a public place.

[77] The appropriateness of the sentence in the present case is confirmed by comparison with the sentence in Tevita for an even more serious example of attempted murder which attracted the higher sentence of 18 years.

Conclusion

[78] The sentence imposed was not imposed on a wrong or inadequate factual basis.  Nor could it be said to be manifestly excessive.

Orders

1. Appeal dismissed;
2. Application for leave to appeal the sentence refused.

[79] APPLEGARTH J:  I have had the advantage of reading the reasons of Atkinson J.  I agree with them and with the proposed orders.