AK v The Queen
[2021] VSCA 165
•16 June 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0021
| AK | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P, T FORREST and WALKER JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 28 May 2021 |
| DATE OF JUDGMENT: | 16 June 2021 |
| MEDIUM NEUTRAL CITATION | [2021] VSCA 165 |
| JUDGMENT APPEALED FROM: | [2019] VSC 852 (Kaye JA) |
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CRIMINAL LAW – Appeal – Conviction – Murder – Whether jury verdict unreasonable or cannot be supported having regard to the evidence – Whether open to jury to find intention to cause really serious injury – Whether applicant intended to cause ‘really serious injury’ or ‘serious injury’ – Meaning of ‘really serious injury’ for jury to determine – Constitutional role of jury as finder of fact – Advantages of juries over appellate courts – Jury’s unique advantage of collective deliberation process – Proper for jury to bring ordinary experience to bear on determinations of fact – Jones v The Queen [2020] VSCA 160, Doney v The Queen (1990) 171 CLR 207, R v Goodall [2007] VSCA 63, M v The Queen (1994) 181 CLR 487, R v Baden-Clay (2016) 258 CLR 308 applied – Criminal Procedure Act 2009 s 276(1)(a) – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P J Smallwood, with Mr T McCulloch of counsel | Stary Norton Halphen |
| For the Respondent | Mr P L Bourke QC, with Ms K Argiropoulos of counsel | Ms A Hogan, Solicitor for Public Prosecutions |
MAXWELL P
T FORREST JA
WALKER JA:
The applicant, AK,[1] was found guilty of murder in the Supreme Court on 13 September 2019. He was sentenced on 20 December 2019 to 20 years’ imprisonment with a minimum of 15 years before parole eligibility. He now seeks leave to appeal against that conviction on a single ground:
The verdict of the jury was unreasonable or cannot be supported having regard to the evidence.
[1]Pseudonyms have been used as the applicant, PM and MM were under the age of 18 at the time of the offence.
This ground adopts the words of s 276(1)(a) of the Criminal Procedure Act 2009, which provides that this Court must allow an appeal against conviction if the appellant can satisfy us either ‘that the verdict of the jury is unreasonable or [that it] cannot be supported having regard to the evidence’.
Legal principles
The applicant must establish that it was not open to the jury to be satisfied beyond reasonable doubt of his guilt on the charge of murder.[2] This Court is required to make its own independent evaluation of the evidence.[3] In doing so, however, it must give full weight to the jury’s advantage in seeing and hearing the witnesses, and to the principle that Parliament has entrusted the jury with the principal responsibility of determining the guilt or otherwise of the applicant.[4]
[2]M v The Queen (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ) (‘M’), cited in SKA v The Queen (2011) 243 CLR 400, 405 [11] (French CJ, Gummow and Kiefel JJ) (‘SKA’), Pell v The Queen (2020) 268 CLR 123, 146–7 [43] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) (‘Pell’).
[3]M (1994) 181 CLR 487, 492 (Mason CJ, Deane, Dawson and Toohey JJ), citing Morris v The Queen (1987) 163 CLR 454.
[4]Woods (a pseudonym) v The Queen [2021] VSCA 105, [130] (Kaye and Niall JJA).
The High Court has recently stated:[5]
It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is ‘the constitutional tribunal for deciding issues of fact’.[6] Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect,[7] the setting aside of a jury’s verdict on the ground that it is ‘unreasonable’ within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial.[8] Further, the boundaries of reasonableness within which the jury’s function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from reasons of the Court of Appeal explaining its disposition of the appeal.
[5]R v Baden-Clay (2016) 258 CLR 308, 329 [65] (French CJ, Kiefel, Bell, Keane and Gordon JJ) (‘Baden-Clay’).
[6]Hocking v Bell (1945) 71 CLR 430, 440. See also Brennan v The King (1936) 55 CLR 253, 266; Sparre v The King (1942) 66 CLR 149, 154; Keeley v Mr Justice Brooking (1979) 143 CLR 162, 188; Chamberlain v The Queen [No 2] (1984) 153 CLR 521, 601; MacKenzie v The Queen (1996) 190 CLR 348, 365; MFA v The Queen (2002) 213 CLR 606, 621 [48] (‘MFA’).
[7]Kingswell v The Queen (1985) 159 CLR 264, 301; Brown v The Queen (1986) 160 CLR 171, 201; Katsuno v The Queen (1999) 199 CLR 40, 63–4 [49]; Cheng v the Queen (2000) 203 CLR 248, 277–8 [80]; Alqudsi v The Queen (2016) 258 CLR 203, 208 [2], 213 [16], 273–4 [195].
[8]M (1994) 181 CLR 487, 494; MFA (2002) 213 CLR 606, 621–2 [49]–[51], 623 [56].
In this case, there is no significant factual dispute. The only issue in dispute at trial was whether the applicant held the requisite intent to constitute the offence of murder. The immediate activities leading up to the fatal stabbing of the deceased, Laa Chol, have all been captured on CCTV. We have had the advantage of viewing the CCTV footage and, of course, of reading the transcript of evidence relating to events throughout the afternoon and evening of 20 July 2019 and into the early morning of 21 July 2019.
Factual background
Laa Chol was 19 years old at the time of her death. She was a student at Victoria University. She and her friend, Dahlia Ali, had taken out a short-term rental of an apartment on the 56th floor of the EQ Tower in A’Beckett Street, Melbourne for the weekend commencing Friday 20 July 2019. In the afternoon of 20 July the two young women commenced occupation of the apartment. They invited a number of friends to attend the apartment. An impromptu party developed. Music was played; alcohol was consumed.
The applicant and a number of his friends arrived at the EQ Tower in the early hours of Saturday 21 July. They were admitted to the apartment by a friend of the applicant who was already at the party. The applicant and his friends were asked to leave by Ms Ali. The applicant and his friends refused to leave at that stage.
At about that time, Ms Ali observed some of the applicant’s group going through drawers in a bedroom of the apartment and she also noticed that both her and Ms Chol’s mobile phones were missing. There was no evidence that the applicant was involved in any of these activities, however, both Ms Chol and Ms Ali became angry. Ms Chol said no one was to leave the apartment until the property was returned. The applicant and a number of his friends began to leave. Ms Chol followed them out into the hallway.
CCTV captured the events that took place in the hallway. The footage was exhibited at trial and we have examined it extensively. The footage discloses the following:
·As Ms Chol left the apartment she pushed an associate (‘PM’) of the applicant in his back. They appeared then to exchange words.
·As this was occurring, the applicant, another associate (‘MM’) and other friends spilled out of the apartment into the hallway.
·MM reached towards Ms Chol, took hold of the hood of her hoodie and pulled her backwards.
·MM and the applicant took hold of Ms Chol and kicked and punched her. She defended herself by endeavouring to throw punches. Other associates of the applicant held her, and others also kicked and punched her.
·MM was holding Ms Chol and continued to do so.
·The applicant stood back and produced a knife from his person with his right hand. He drew his right hand back in a swinging motion. He then lunged forward with his left leg, thrust his right hand forward towards Ms Chol and stabbed her forcefully in the chest.
·MM continued to restrain the struggling Ms Chol. PM also took hold of her. There was no one in between the applicant and Ms Chol at this time.
·The applicant then aimed a kick which connected with Ms Chol’s stomach.
·Ms Ali intervened and extricated Ms Chol from the grip of the applicant’s associates. Ms Chol returned to the apartment. Ms Ali remained in the hallway for a short time, and then returned to the apartment.
Other evidence disclosed that:
·Ms Chol collapsed and subsequently died from a stab wound to the chest that caused internal and external blood loss.
·The knife penetrated Ms Chol’s ribcage, nicking her fifth rib. It penetrated the cardiac sac and inflicted an incised wound to the right ventricle of her heart.
·The knife wound was assessed at autopsy to be approximately three centimetres in length and approximately 8.5 centimetres deep. In evidence at trial Dr Lynch, a pathologist called by the prosecution but who had not performed the autopsy, stated that he considered the depth of the wound to be between five and 10 centimetres.
·The force necessary in order to cause the death was assessed as ‘at least moderate’ by Dr Lynch.
·Ms Chol must have been moving to some extent when stabbed in order to explain the injury.
·The knife was never recovered.
This application
At trial the prosecutor contended that the applicant’s murderous intent was constituted by an intention to inflict ‘really serious injury’ upon Ms Chol. The defendant argued that such an intention could not be inferred from the evidence and that he was therefore guilty of ‘unlawful and dangerous act’ manslaughter, and not murder.
The applicant’s contentions
On this application the applicant contended that it was not open for the jury to draw the inference of murderous intent as explained above. This was said to be because the jury could not have reasonably excluded the hypothesis that the applicant intended some harm falling short of ‘really serious injury’. The applicant contended that the combination of (i) the circumstances of the stabbing; (ii) the weapon itself; (iii) the location of the wound; and (iv) the force used could not exclude the rational possibility that the applicant acted with an intention to ‘cause something less than really serious injury’.
Further, the applicant submitted that no other evidence acted to fortify the ‘murderous intent’ inference, such as, for instance, a contemporaneous statement of intent.
Other evidence, so it was submitted, pointed away from this inference. Alcohol had been consumed at the party; the injury occurred at 5:09 am; there was only one stab wound; the force used to inflict the wound was towards the lower end of ‘moderate’ (given only skin and soft tissue was penetrated); there must have been some movement by Ms Chol to cause the injury sustained; the applicant had turned 17 only weeks earlier. In written submissions, the applicant also submitted, irrelevantly in our view, that Ms Chol walked back into the apartment after being stabbed, and, incorrectly, that the applicant ‘did not continue to further assault Ms Chol after’ he stabbed her. In fact, shortly afterwards, the applicant kicked this young woman in the general area in which he had already stabbed her.
The respondent’s contentions
The respondent submitted that the applicant had failed to establish that the jury must have had a reasonable doubt. The applicant, it was submitted, made the conscious decision to access his knife after the assault on Ms Chol had begun and at a time when MM and the applicant were physically dominating her; the weapon was sharp enough to cause an incised wound and big enough to travel 8.5 centimetres into her body; the blow was delivered with force and while Ms Chol was being restrained by MM; the applicant was looking directly at his victim and aiming for a ‘target area’.
The respondent submitted that the phrase ‘really serious injury’ is constituted by ordinary, everyday wording and has an easily understood meaning which is for the jury to construct. The judge in his directions had clearly told the jury that they must be satisfied beyond reasonable doubt that, at the time at which the applicant inflicted the blow, he must have intended Ms Chol to suffer ‘not just serious injury, but really serious injury’. Whether the latter description applied in the present case was for the jury to decide.
Analysis
It is not often that a jury’s task is so straightforward. There were no disputed facts to resolve, no pathological nuances or complicated chains of inference to navigate, and only one issue to determine. Every relevant fact of the attack was caught clearly and unmistakeably on CCTV. This diminutive woman was under siege from these young men. She was being punched and kicked. She was being restrained from defending herself or leaving the scene.
The applicant took a step back, produced a knife and, with a powerful attacking strike, stabbed her deeply in the left chest. The blow bespoke great purpose. Counsel for the applicant conceded — correctly, in our view — the accuracy of the following description in the respondent’s written case:
The blow is delivered by the Applicant using a full swing of his arm together with a step forward toward the victim. The blow is delivered … with a deliberateness and forcefulness that is designed to generate high speed and force at the point of impact.
Before this Court the applicant conceded that the jury would have been entitled to infer an intention to cause ‘serious injury’ to Ms Chol. The only question was whether he intended to cause ‘really serious injury’. As this Court observed in Jones v The Queen,[9] the law does not define the words ‘really serious injury’. While ‘some injuries are manifestly too slight and some injuries are clearly sufficient to answer the legal test, there remains an infinite variety of situations in which a jury might reasonably take either view’.[10]
[9][2020] VSCA 160 (‘Jones’)
[10]Ibid [34] (Beach and Kyrou JJA and Kidd AJA) (citations omitted).
The Court in Jones went on to observe:
The act of an accused may provide the most convincing or cogent evidence of intention. In other words, an intention to cause really serious injury might be inferred from the nature of the act which is done, especially where the immediate consequence of the act is obvious. An inference of an intent to cause really serious injury might more readily be drawn where a weapon is used.
There is no requirement that the harm intended be life-threatening harm. An intention to cause someone really serious, but non-fatal, harm is sufficient.[11]
[11]Ibid [35]–[36] (citations omitted).
We reject the applicant’s submission that in this case the drawing of an inference of an intention to cause really serious injury would constitute ‘speculation’ or ‘conjecture’. In our view, this jury was as well placed as any to perform what was their constitutional function — to determine issues of fact that lie between the Crown and a citizen accused of a crime.
Drawing an inference of intent from observed behaviour is the kind of task which jurors, as representatives of our community, are especially well equipped to undertake. The ‘purpose and the genius of the jury system is that it allows the ordinary experiences of ordinary people’ to inform the determination of factual matters, including the drawing of inferences.[12] In R v Goodall,[13] albeit in a slightly different context,[14] this Court put it as follows: ‘The special virtue of the institution of the jury is the collective deliberation process of a fair cross-section of the larger community’.[15]
[12]Doney v The Queen (1990) 171 CLR 207, 214 (Deane, Dawson, Toohey, Gaudron and McHugh JJ).
[13][2007] VSCA 63 (‘Goodall’).
[14]That is, whether a juror’s bringing their personal experience or the personal experience shared by another juror to bear on their determination of a fact in issue could constitute apprehended bias.
[15]Goodall [2007] VSCA 63, [27] (Redlich JA).
When this Court is asked to intervene on the basis that a jury verdict is ‘unreasonable or cannot be supported having regard to the evidence’, it must be borne steadily in mind that a jury will always enjoy a broader and deeper experience of life than does an appellate court. A jury will also enjoy an advantage over an appellate court in not only seeing and hearing witnesses but also shortly thereafter participating in a collective deliberation process, which can be lengthy if required.
An appreciation of the jury’s unique capabilities should inform the appellate court’s approach when — as here — the unreasonableness ground is relied upon. As counsel for the respondent pointed out, the question to be addressed under this ground has been framed in multiple ways:
(a) Must the jury have entertained a doubt about the applicant’s guilt?[16]
[16]Libke v The Queen (2007) 230 CLR 559, 596–7 [113] (Hayne J) (‘Libke’).
(b) Was it open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt?[17]
(c) Did the state of the evidence preclude the jury, acting reasonably, from being satisfied of guilt?[18]
(d) Did the state of the evidence exclude, as being not reasonably open on the evidence, all reasonable hypotheses consistent with innocence?[19]
[17]Ibid; M (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ); R v Klamo (2008) 18 VR 644, 653 [38] (Maxwell P). See also Fennell v The Queen (2019) 93 ALJR 1219, 1233 [81] (Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ) (‘Fennell’).
[18]Chidiac v The Queen (1991) 171 CLR 432, 453 (Dawson J).
[19]See Baden-Clay (2016) 258 CLR 308, 323–4 [46]–[47] (French CJ, Kiefel, Bell, Keane and Gordon JJ).
We have made our own independent evaluation of the evidence, as the M test requires. The conclusion is clear. However the question is framed, we consider that it must be answered adversely to the applicant. The jury was not compelled to experience a reasonable doubt; it was well open to them to conclude beyond reasonable doubt that the applicant intended to cause really serious injury when he intentionally plunged a sharp-edged weapon deep into the chest of a physically restrained, defenceless young woman.
In oral argument the applicant submitted, based on a passage from M,[20] that if we experienced a doubt about the applicant’s intention then it would follow that the jury ought to have experienced a doubt, and that on that basis the conviction for murder should be set aside. We record, for completeness, that we have experienced no doubt that the applicant intended to cause Ms Chol really serious harm. It is thus unnecessary to explore the relationship between that passage in M and later articulations of the principle in cases such as Libke, SKA, Fennell and Pell.
[20]M (1994) 181 CLR 487, 494 (Mason CJ, Deane, Dawson and Toohey JJ).
Leave to appeal must be refused.
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