R v Fitzgerald[2022] QCA 203

SUPREME COURT OF QUEENSLAND

1. [1]
   THE COURT:  The appellant, Mr Fitzgerald, was charged with attempted murder of the complainant and in the alternative malicious act with intent or grievous bodily harm.  He was acquitted by a jury after a trial in the Supreme Court of attempted murder and convicted of the alternative count of malicious act with intent.  The only ground of appeal was that a miscarriage of justice occurred as a result of the learned trial judge’s failing to direct the jury that no adverse inferences could be drawn from the failure of the appellant to give evidence.  On 10 February 2022, this Court allowed the appeal on that ground.  The conviction was set aside and a retrial ordered.  These are the reasons for those orders.
2. [2]
   It was common ground on the appeal that the direction in accordance with Azzopardi v The Queen (2001) 205 CLR 50 at [51] and [67] should have been given by the trial judge.  It is unfortunate that oversight was not noticed at the time by the trial counsel who were not the counsel who appeared on this appeal.  The respondent concedes appropriately that it is unlikely that the failure of the appellant’s trial counsel to ask for a redirection was a forensic decision.

Background

3. [3]
   The complainant arrived in the evening of 18 April 2019 at a unit at Woolloongabba which was rented by Ms Ward and at which her partner Mr Griffiths and other people were present.  On his arrival, the complainant argued first with Ms Stevens and Mr Mancktelow.  The argument ended when one of the persons present, Mr Byrnes, intervened.  The prosecution case at trial was that the appellant, armed with a knife, then entered the room and stabbed the complainant in the neck resulting in his carotid artery and left jugular vein being almost completely severed.  The complainant fled and soon after collapsed.  He was treated at the Princess Alexandra Hospital and survived.  The complainant did not give evidence at trial.
4. [4]
   There were two substantial issues at trial.  The critical issue was the identity of the complainant’s attacker.  If the jury were satisfied beyond reasonable doubt that Mr Fitzgerald stabbed the complainant, the other issue was whether Mr Fitzgerald had the specific intents necessary to prove either attempted murder or malicious act with intent.

Witnesses to the stabbing

5. [5]
   Mr Byrnes was also a visitor to the unit on the night in question.  On realising that his former partner, Ms Stevens, was there, he went outside and sat on a seat next to a birdcage.  He had been there for 10 or 15 minutes when “Fitzy” (whom he had first met six months previously and on four or five occasions) came over and started talking to him and also sat down.  Mr Byrnes then noticed the complainant come up the driveway and walk up the stairs.  Mr Byrnes could then hear arguing inside.  He could hear Mr Mancktelow’s voice.  He then heard his former partner’s voice.  They were saying that “you can’t just … barge into someone’s house”.  Mr Byrnes got up and walked in through the back door into the lounge room and noticed the complainant on the lounge and that there was an argument between him and Mr Mancktelow and Ms Stevens who were also seated.  The complainant was saying that they could not tell him what to do.  Mr Byrnes squatted down near the complainant and tapped him on the forehead to get him to listen to him.  Mr Byrnes spoke to the complainant and the argument stopped.  Mr Byrnes then stood up and moved away.  He then noticed that Fitzy had walked in the door and stood beside the complainant and mumbled a few words.  Mr Byrnes saw that Fitzy had something in his hand and he just hit the complainant on the side of the neck.  That is when Mr Byrnes noticed that Fitzy was holding a sharp knife sort of instrument in his hand and that blood had started to run down the complainant.  Mr Byrnes asked Fitzy why he had done that and he replied something about “respect”.  Mr Byrnes identified Fitzy as the appellant.
6. [6]
   Mr Byrnes’ credit was put in issue by the cross-examination.  He denied the proposition put to him that he stabbed the complainant in the neck.

7. [7]
   Mr Bendall was also present at the unit on the evening the complainant was stabbed.  His evidence was as follows.  A person came in who did not knock.  Someone started having a go at him for some reason.  Then all of a sudden, someone came through the door with a knife and stabbed him in the neck.  The person who did the stabbing did not say anything and left straight away.  The “big muscly guy” (which was a reference to Mr Byrnes) was in the lounge room before the man who got stabbed came in and was directly in front of the complainant when the complainant was on the couch.  Mr Byrnes pushed his face.  Mr Bendall gave a description of the stabber to the police that was relied on by the appellant’s trial counsel in the address to the jury to submit that it was not a description of the appellant.
8. [8]
   Mr Mancktelow returned to the unit on the evening of the stabbing with Mr Griffiths.  There were people in the lounge room.  After a few minutes a man walked in the door.  Mr Mancktelow asked him who he was and the next thing Mr Byrnes came in the door and asked what was going on.  The man who came through the door’s attitude changed after Mr Byrnes came in.  Mr Byrnes was standing there and Mr Mancktelow was two metres left and a bit behind him.  Someone came in the door and Mr Mancktelow saw a hand pop out and there was a knife and he stabbed the complainant’s neck and then was gone as quickly as he came in.  Mr Mancktelow could not identify the stabber.  His view was obstructed by Mr Byrnes who was a big man.
9. [9]
   Ms Stevens went to Ms Ward’s unit on the night of the stabbing.  When Mr Byrnes saw her, he went outside.  Ms Stevens was seated in the lounge room when the complainant came in. She challenged him, because he walked into the unit without knocking and they had a bit of an argument about manners.  The complainant sat down on the couch.  Mr Byrnes came back in.  Mr Mancktelow said something in Ms Stevens’ defence.  Mr Byrnes spoke to the complainant and it calmed down.  Mr Byrnes stood in front of the complainant and talked to him in a very direct way and poked him on his forehead.  Mr Byrnes got down to the complainant’s eye level.  Mr Byrnes stood back up and took a step back.  Then Fitzy came in the back door and stabbed the complainant in the neck.  The knife was small and went straight into the complainant’s neck.  Ms Stevens saw the knife in Fitzy’s hand.  Mr Byrnes asked the appellant why he did it and Fitzy responded “Respect” or something like that and took off.  The complainant staggered his way out the back door and left.  Ms Stevens then left the unit with Mr Byrnes.
10. [10]
    Ms Stevens’ credit was also put in issue by the cross-examination.  She denied the propositions put to her that Mr Fitzgerald never entered the unit after the complainant arrived and that he weas stabbed by someone already inside the unit.
11. [11]
    Mr Carter had met Fitzy through Mr Griffiths and Ms Ward a couple of weeks before the incident and on a couple of occasions.  Fitzy was at the unit with his partner when Mr Carter arrived about lunchtime on the day of the stabbing.  Mr Carter had seen Fitzy with a folding knife and asked to have a look at it.  Fitzy passed it to him, Mr Carter had a look at it and gave it back.  Mr Carter left the unit at some point.  In the evening, he went to the Red Brick Hotel and met Fitzy and his partner there.  He drove them back to the unit.  Fitzy and his partner did not follow Mr Carter into the unit.  There were quite a few people in the living room.  The complainant arrived and got into an argument with Ms Stevens.  Mr Griffiths also arrived.  Mr Carter was not in the lounge room when the argument broke out.  He watched it from the doorway of the kitchen.  Mr Byrnes came in and had “a go” at the complainant for fighting and slapped him a couple of times with an open hand.  Then Fitzy came in and pulled out his knife and said, “You want to f**k with my friends I’ll f**king stab you” or something along those lines and lunged at the complainant with the knife.  Not even a second after doing that, Fitzy put the knife through the complainant’s neck and the complainant put his hand on his neck and pulled out the knife.
12. [12]
    Mr Carter’s credit and his reliability were put in issue by the cross-examination.
13. [13]
    The above summary shows that there were inconsistencies in the evidence given by those witnesses who observed the stabbing.
14. [14]
    Mr Fitzgerald did not give evidence.  He also had not participated in a police record of interview, so that the jury did not hear any version of events from him.

The failure to give the Azzopardi direction

15. [15]
    The trial judge had given the usual directions about the burden of proof resting on the prosecution and there was no burden on a defendant to establish any fact, let alone his innocence, as a defendant was presumed to be innocent and the direction that conviction could result only if the prosecution established that the appellant was guilty of one of the offences beyond reasonable doubt.  Those standard directions do not expressly deal with the effect of a defendant’s silence.  As the identity of the attacker was the prominent issue in the trial, the jury may have used the appellant’s silence in court on a matter of which he was likely to have been aware, in the absence of the Azzopardi direction, to the appellant’s detriment when assessing the evidence of the witnesses who did give evidence about the attacker.  The observations made by Muir JA (with whom Dalton J agreed) in R v Hartfiel [2014] QCA 132 at [51] on the failure of a defendant to give evidence are apposite in this case:

“Jurors, untrammelled by the weight of authority, may not necessarily reason precisely, logically or in the same manner as judges when considering the effect of an accused’s failure to give evidence.  However, they could be expected to conclude that the accused’s case would be materially weakened by the failure and the prosecution’s correspondingly strengthened.  Moreover, it is likely that they would not advert to the possibility that an accused person, even if in a position to contradict or explain evidence, may wish to remain silent.” (footnote omitted)

16. [16]
    Those observations were applied in R v Smallwood [2021] QCA 132 at [22].  It was accepted in Smallwood at [18] by Fraser JA (with whom Mullins JA and Henry J agreed) that, even though it will almost always be desirable for an Azzopardi direction to be given when a defendant does not give evidence in a criminal trial, whether a direction should be given and its terms depend on the circumstances of each case.  For the reasons set out in the preceding paragraph, it was a miscarriage of justice when no such direction was given in Mr Fitzgerald’s trial.

Proviso

17. [17]
    The respondent did not concede that the proviso could not be applied.
18. [18]
    The failure to give the Azzopardi direction had the consequence that the jury’s assessment of the evidence of the witnesses as to the identity of the stabber may have been affected.  It is therefore not an appropriate case for this Court to undertake the task of assessing whether guilt was proved beyond reasonable doubt, as the critical issue in the trial depended on the jury’s assessment of the evidence of witnesses whose credit and reliability were in issue.  See Orreal v The Queen (2021) 96 ALJR 78 at [20] and [41].  The respondent therefore cannot discharge the burden it bears to show no substantial miscarriage of justice had occurred within the meaning of s 668E(1A) of the Criminal Code (Qld).

Orders

19. [19]
    The orders made at the conclusion of the appeal were:

1. 1.Appeal allowed.
2. 2.Conviction set aside.
3. 3.A retrial ordered.