Wright v The Queen[2015] QSC 178

SUPREME COURT OF QUEENSLAND

1. In the course of the sentence proceedings in this case, the defendant’s counsel has applied for a finding under section 538 of the Criminal Code 1899 (Qld) (Code), that the defendant desisted of his own motion from the further prosecution of his relevant intention without the fulfilment of that intention being prevented by circumstances independent of the defendant’s will and, as a consequence, a finding in terms of the maximum penalty to which the defendant would be liable. 
2. The evidence relied upon was the evidence given at the trial, together with some brief oral evidence of the defendant himself. 
3. The section has some unusual features.  The language would appear to cast the onus upon the defendant to establish the conditions relevant for the application of the section.  That view was taken by Mackenzie J in R v Witchard & Ors;  ex parte A-G (Qld) [2004] QCA 429 (Witchard) at [50], and also at [30] as I read his Honour’s judgment..
4. I was also referred to s 132C of the Evidence Act 1977 (Qld), where subsection (3) provides that a sentencing judge may act on an allegation if the judge is satisfied, on the balance of probabilities, that the allegation is true.  Any doubt about the applicability of that section to proceedings after a jury trial is removed by s 136 of the same Act.  It seems to me, therefore, that the issue in this part of the proceeding is whether the defendant has established, on the balance of probabilities, that he desisted of his own motion from the further prosecution of what I shall call the relevant intention, without the fulfilment of that intention being prevented by circumstances independent of the defendant’s will.
5. The section applies to attempts.  The defendant has been convicted of the attempted murder of his wife.  The offence of attempted murder is defined in s 306 of the Code, which there identifies the offence as being an attempt unlawfully to kill another, or the doing of an act by a person, with an intent unlawfully to kill another,  such act being of such a nature as to be likely to endanger human life.  The indictment identified the first alternative as that which was relied upon. 
6. However, to establish an attempt to kill, it is necessary to establish that the defendant had the intention to kill his wife at the time of the offence.  It is that intent, it seems to me, which is the relevant intent for the purpose of s 538.  That being so, the question becomes whether the defendant’s intention to kill his wife is an intention from the prosecution of which he desisted of his own motion, without the fulfilment of that intention being prevented by circumstances independent of his will.
7. In Witchard, Mackenzie J at [33] stated:

“Where the series of acts has ended simply because the attacker has done all he or she intended to do in the prosecution of the intention, the offender has not desisted of his or her own motion in the relevant sense.”

8. His Honour was speaking in the context of a charge of attempted murder.  Given the intention was to kill, it seems to me the reference to all that the attacker intended to do, in the prosecution of that intention, is a reference to the carrying out of the acts intended to cause the death.  There is nothing to suggest that the defendant, Mr Wright, had done all that he would have intended to do to cause the complainant’s death when he ceased his attack. The complainant had not been killed.  She had been hit to the head with what was described as severe force at least once and had slumped to the ground.  Mackenzie J, at [34] of Witchard, stated:

“[T]here must be a deliberate cessation of things done with the intention of causing the death of the intended victim, in circumstances where it can be inferred that the continuum of conduct ceased only because of the deliberate voluntary abandonment of the intent to kill without the intervention of circumstances independent of the exercise of the offender’s will.”

9. I understand his Honour to be attempting there to express, in his own words, the effect of s 538 of the Code.  Plainly enough, it is the language of the section to which attention must be primarily directed.  His Honour, in paragraphs 35 and 36, spoke of cases where the attacker believed that his intention had been fulfilled and desisted for that reason, or where the victim, in effect, escaped, as being cases in which the section would not apply, but neither of those examples is relevant here.
10. I should also note that the decision in Witchard appears to be accurately identified by Mullins J at [114].  As I read her Honour’s statement, it is to the effect that the section is not available where a defendant has desisted from a course of conduct without abandoning the attempt and has had a later opportunity to resume, that is, to attempt to kill a victim, but that opportunity was not acted on.  That seems to be consistent with the facts of the case.
11. At this point it is convenient to refer briefly to the defendant’s evidence.  He gave evidence that he drove his vehicle into the front of the house where his wife and his children were living; used a hammer to break glass in the window of the front bedroom, through which he entered the house; went to the hallway near the front door, where he could hear his wife’s voice; and then went out the front door to the grass, where his wife was; and then hit her with the hammer.  He said that he hit her three times. 
12. The medical evidence in the trial was consistent with three or four blows, and it seems unlikely that any more than four blows were administered.  I find that the defendant hit his wife about three times.  I say “about” because it is possible there was a fourth blow.  It is possible that the defendant recalls three when there were four, and it does not seem to me to matter much, for the matter I have to decide, which is correct.  I find it unlikely that there were more than four blows because of the absence of any other injuries.  The eyewitnesses, save for Mr Bein, generally accepted that there were a couple of blows.  In saying that, I am conscious that on one occasion, Daniel, whose evidence I shall discuss again later, refers to some 10 to 20 blows.  I do not accept that evidence, and I do not accept Mr Bein’s evidence.  It was suggested there may have been a number of swings that did not connect, but why that should be so was not explained, given the proximity of the defendant to the complainant, and it seems to me relatively unlikely.
13. The defendant said that when the attack started his wife was screaming. She stopped screaming. He realised what he had done. He mentioned being able to focus and at that point he stopped the attack.  The defendant said that between blows he heard voices saying “stop”.  His evidence is that the voices were familiar to him, suggesting they were the voices of one or other of his children.  I accept that he heard voices calling on him to stop.  It seems unlikely that he has correctly identified the voices.  None of the children gave evidence, as I recall it, which would support that.  There was, however, evidence that neighbours were calling out.  That seems more likely, and I accept that neighbours did call out and it was their voices the defendant heard.
14. The prosecution submits that I should not accept the defendant’s evidence.  In support of that submission, reference was made to the evidence of Daniel and Mr Bein, primarily to the effect that the attack commenced inside the house and later moved outside the house.  The prosecution also submitted that too much force was used for the conditions of the section to be satisfied.  It also submitted that, in any event, there was what was called verbal resistance from Mr Bein, which made the section inapplicable.
15. It is necessary for me to make some observations about Mr Bein’s evidence.  I did not consider him to be a reliable witness.  That was in part because of his unusual manner of behaviour while giving evidence.  It is also because he claimed to be able to see two people struggling when he was outside, near the letterbox.  The difficulty with that is that the front door was closed.  There are narrow glass slats in the door.  The photographs suggested it would be very difficult to see through those slats sufficiently to be able to identify two people struggling.  In addition to that, he described the events as including the defendant, while holding the hammer, dragging the complainant and somehow managing to get the door open while dragging the complainant outside, where the attack continued.  There is some degree of improbability about that account.
16. There were other aspects of his evidence which, in my view, cast real doubt on his credibility.  His version of events in areas of some importance in the trial changed considerably over time, and he gave unusual explanations for not having given the same account earlier.  Taking these things into account, I would not be prepared to accept his evidence in preference to some of the other witnesses whose evidence I shall come to.
17. The evidence of Daniel needs to be seen in the context of what he experienced that evening.  He was sleeping in the room into which the utility driven by his father first crashed.  That must have been a frightening experience, and his description of what happened, including a chair being knocked, almost hitting his arm and hitting his head, would confirm what one of his brothers said, that he was in shock shortly afterwards.  Daniel went to the back of the house, to the lounge room, and on the evidence of one of his brothers was given a glass of water because of his state. 
18. Daniel said at one point that his father hit his mother with 10 to 20 blows.  That seems to me to be unlikely when one considers the evidence as a whole notwithstanding that there is some similarity between Daniel’s evidence on this point and that of Mr Bein.  I note that Daniel later in his evidence retreated to the position that there were a couple of blows, which seems consistent with the objective evidence.  Daniel’s support for Mr Bein’s evidence about the assault commencing inside the house, it seems to me in all the circumstances, should not be given a great deal of weight.  As he gave his evidence, it seemed to me also, Daniel was particularly sympathetic to his mother and more likely than the other brothers to have been affected by the events which occurred on that night. 
19. On the other hand, the evidence of Ms Wright was that the assault commenced after she went outside the house.  Her evidence of events leading up to the assault was clear.  She gave her evidence in a way which would give some confidence in her account.  It was suggested that because she was the victim of the assault, her evidence of the place where it occurred may not be reliable.  It seems to me that that is as much a reason to think it is reliable as to think it is unreliable.  By that I mean she would have been particularly conscious of what happened when the first blow was struck, including where she was located.  Her evidence was coherent, and I accept it.  Ben’s evidence provides some support for that.  It follows that I accept the defendant’s account of where the assault began. 
20. I find that there was no physical intervention which had any effect on the defendant’s conduct and in particular on the cessation of the assault.
21. The neighbours who called out were obviously approaching but were not particularly close.  On the defendant’s evidence, they called out between blows.  They do not seem to have affected his continuing with the assault for as long as it continued.  There was no particular reason to conclude that they therefore played any role in the cessation of the assault. 
22. Returning to the language of the section, I note that it includes a reference to the fulfilment of the intention being prevented by circumstances independent of the person’s will.  Nothing was advanced to suggest that the fulfilment of the intention to kill Ms Wright was prevented by any circumstance other than the defendant’s own decision. 
23. If one focuses on the reference to the defendant desisting of his own motion from further prosecution of his intention, it seems to me that, weighing the evidence up, as the defendant’s rage perhaps reduced a little and the adrenalin rush to which he referred played a less significant role in his conduct, he was able to gain some focus and realise what he was doing; of his own motion he ceased to continue the attack; and I so find.