R v Francis[2017] QCA 182

COURT OF APPEAL

SOFRONOFF P

MORRISON JA

FLANAGAN J

CA No 65 of 2017

SC No 1526 of 2016

THE QUEEN

v

FRANCIS, Glen Reginald Appellant

BRISBANE

THURSDAY, 24 AUGUST 2017

JUDGMENT

SOFRONOFF P:  On 8 June 2014 the appellant struck one Udris on the head with a hammer.  This fractured Udris’ skull.  It was described by an expert witness as similar to the kind of fracture that one makes when one breaks an egg shell.

The appellant was charged with two counts.  Count 1 charged him with an offence of attempted murder of Udris; count 2 charged him with an offence of unlawfully doing grievous bodily harm to Udris with intent to do grievous bodily harm.  The appellant pleaded guilty to that count, but the prosecution did not accept that plea.

After a trial the jury found the appellant guilty of attempted murder.  The appellant now appeals to this Court against his conviction on a single ground, namely, that the learned trial judge failed adequately to direct the jury as to the drawing of inferences when determining whether an intent to kill had been proved beyond a reasonable doubt.  The evidence in this case was brief.  In its essentials it was that the appellant had accused the complainant of “running” his name around town.  I understand that to mean that the appellant thought that the complainant had defamed him.  There was an argument between them and, according to the evidence of the complainant, the appellant then:

“…just said he’s going to fucking kill me and he come in swinging and I tucked up.  I can’t lift my right leg because I snapped my ACL, but I tucked my whole body up so he couldn’t get a punch on me, but he did get one on the right side of me. And then he yelled out to Roslyn Marsh, ‘Give me the effing hammer.  I’m going to kill this cunt’. And that’s when he just started swinging.  And I tucked up and he couldn’t really get a shot on my head.  He hit my elbows, my knees, my scapula, and when he hit my scapula I just dropped my arm and that’s when he sunk one straight into the top of me head and I knew the first one shattered my skull but I still tried to protect myself.  And then he hit me again and then it was lights out for me…”

The complainant also said that after the appellant had hit him, he, the complainant, laughed at him.  The complainant said:

“…and that’s when he lost the plot and turned to Roslyn and said, ‘Give me that fucking hammer.  Give me that hammer.  I’m going to kill this cunt.’  And she got up and gave him the hammer and that’s when he started to attack me with the hammer.”

It was in the circumstances of that kind of case that the jury had to decide the question of intent.  As I have said, the appellant had pleaded guilty to doing grievous bodily harm to Udris with intent to do grievous bodily harm.  Consequently, the striking, the use of the hammer and the nature of the injuries caused by the striking were not in issue.  The circumstances from which an inference of intent to kill could be drawn were narrowly circumscribed.  They were constituted by the immediate events of the assault, including what the appellant said before beginning his attack.  In addition, the complainant gave evidence that when the appellant was hitting him on the head with a hammer, the appellant said, “You’re fucked, you fuck”, and, “I’m going to kill you.  I’m going to kill you.  You’re fucked.”

The complainant described the manner in which the appellant used the hammer.  He agreed that it was an overhead hitting motion like a tennis smash.  He said that the appellant began hitting him on the head to start with, but because the appellant tried to protect his head the appellant began to hit him on his body.  When the complainant dropped his arm after being hurt, “that’s when he sunk the first one into my head”.  The complainant said that he was hit twice in this way.  Because of the appellant’s plea of guilty to the count of unlawfully doing grievous bodily harm with intent to do grievous bodily harm, there was only one fact for the jury to decide in substance.

The striking and the resulting injury were not in issue.  The appellant had admitted that he intended to cause grievous bodily harm to the complainant.  The only real issue for the jury to decide was whether the appellant intended to kill the complainant.  This was a finding that could only be based upon an inference drawn from the facts which I have summarised, and they were within a very narrow field.  They were constituted by the choice of weapon, the appellant’s words, and the nature of the attack itself.  It was obviously open to the jury to conclude that the appellant intended to kill the complainant, and the contrary is not submitted.  However, the appellant contends that the directions by the trial judge were inadequate.  The inadequacy arises, so it is argued, because Byrne SJA “departed from the relevant bench book direction”.  The bench book direction number 186.2 provides:

“Importantly, if more than one inference is reasonably open, that is, an inference adverse to the defendant (i.e. one pointing to his guilt), and an inference in his favour (i.e. one consistent with innocence) you must give the defendant the benefit of the inference in his favour.  Therefore you must be satisfied beyond reasonable doubt that the inference of an intention to kill insert name of victim) is the only reasonable inference open on the evidence which you accept.”

It is argued that that an alternative inference was open, namely, that the appellant had an intention to cause grievous bodily harm, but did not have an intention to kill.  It is submitted that the jury should have been directed that if they found both inferences reasonably open then they must acquit the appellant of attempted murder.  A direction of that kind is commonly referred to as a Chamberlain direction.  See Chamberlain v The Queen [No 2] (1984) 153 CLR 521.  However, the principle it encapsulates has been established for over 100 years in Australia.  See Peacock v The King (1911) 13 CLR 619.  It is a principle that is invoked in circumstantial cases.  In Shepherd v The Queen (1990) 170 CLR 573 at 578 Dawson J said that a Chamberlain direction:

“[Is] customarily given in cases turning upon circumstantial evidence, [but] it is no more than an amplification of the rule that the prosecution must prove its case beyond reasonable doubt.  In many, if not most, cases involving substantial circumstantial evidence, it will be a helpful direction.  In other cases, particularly where the amount of circumstantial evidence involved is slight, a direction in those terms may be confusing rather than helpful.”

In Grant v The Queen (1975) 11 ALR 503 at 504, in a passage cited with approval by Dawson J in Shepherd, Barwick CJ said that whether such a direction should be given depends upon the circumstances of the case and the nature of the summing up as a whole.  It is therefore necessary to consider the summing up, the circumstances having been described earlier in these reasons.  The summing up was brief because the case itself was a brief one.  The summing up took just 40 minutes.  This was not a case in which there were multifarious facts from which the Crown invited the jury to infer, for example, the involvement of the accused in an offence.

This was a straightforward case in which only one element was in issue, that of intent to kill as distinct from intent to cause grievous bodily harm.  His Honour emphasised and reemphasised to the jury in his directions that they could not convict upon the basis of a finding of intent to kill unless they were satisfied of that fact beyond a reasonable doubt.  That emphasis can be found particularly in his Honour’s repetition of his direction about the standard of proof applicable in criminal trials.  In R v Dolley (2003) 138 A Crim R 346 at 349 de Jersey CJ said that in a case:

“[Where] the fact to be inferred is itself but one element of the offence, the direction that, in order to convict, that fact must be inferred beyond reasonable doubt, adequately directs the jury to the test to be applied, because obviously, if the inference is drawn beyond reasonable doubt, then, ipso facto, all other reasonable possibilities must have been excluded.”

This case is not one like Knight v The Queen (1992) 175 CLR 495 in which intent to kill had to be inferred from a complicated series of facts including the bodily position adopted by the appellant, how he held the weapon, equivocal words that he had said, and the actions of the victim towards him in relation to the rifle held by the appellant which discharged while the victim was holding it.  The present is a much simpler case.  His Honour, in my respectful view, directed the jury accurately and appropriately when he said:

“The question for you in connection with the charge of attempted murder is whether in attacking Mr Udris with the hammer, the accused was trying to do more than inflict grievous bodily harm: namely, thereby attempting to kill him.

The prosecution contends that in wielding the hammer against Mr Udris, the accused was actually intending to kill him.

The defence case in a nutshell is that you would not be persuaded to the requisite standard that the accused had an intention to kill, as distinct from an intention to inflict grievous bodily harm when striking Mr Udris.

So a conclusion of guilt in respect of attempted murder depends upon proof to your satisfaction, beyond reasonable doubt, that, in attacking Mr Udris as he did, the accused was intending to kill him.

Nothing less than an intent to cause the death of Mr Udris could suffice to prove attempted murder.”

As I have said, apart from that particular direction his Honour reminded the jury on six other occasions that the onus was upon the Crown to prove intent beyond all reasonable doubt as a matter of inference to be drawn from the facts that I have summarised.  As a consequence of this, the submission that there is a defect in the summing up because a particular form of direction contained in the bench book was not used must be rejected.  The bench book is merely a guide for judges to use in formulating the content of submissions in appropriate terms to fit the case actually being heard.  It is not a set of commands to a judge about precise words that must be used for a summing up to be adequate.

For these reasons, in my view, the submission that there has been a miscarriage of justice because the direction made by his Honour was inadequate must be rejected.  In any case, I would conclude that if his Honour had misdirected the jury, then no substantial miscarriage of justice has resulted.  The appellant’s repeated statements that he was going to kill the complainant, his choice of weapon and his choice of the complainant’s head as his target, to my mind, signify that an inference that he merely wanted to cause grievous bodily harm would not have been a rational one.  Consequently, if a Chamberlain direction had been given, it could have made no difference.  For these reasons I would dismiss the appeal.

MORRISON JA:  I agree.

FLANAGAN J:  I agree with the reasons of the President and the order proposed.

SOFRONOFF P:  And the order of the Court is that the appeal is dismissed.