and Paul Christie v The Queen
[2016] VSCA 313
•13 December 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2016 0024 | |
| PAUL CHRISTIE | Applicant |
| v | |
| THE QUEEN | Respondent |
---
| JUDGES: | REDLICH, BEACH and KYROU JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 25 October 2016 |
| DATE OF JUDGMENT: | 13 December 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 313 |
| JUDGMENT APPEALED FROM: | [2015] VSC 769 (Coghlan JA) |
---
CRIMINAL LAW – Murder – Appeal – Whether evidence sufficient to infer murderous intent – Multiple stab wounds to abdomen – Self-defence rejected by jury – Leave to appeal refused – M v The Queen (1994) 181 CLR 487; Henderson v The Queen [2016] VSCA 61 applied.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J McLoughlin | Victorian Legal Aid |
| For the Crown | Ms S Flynn | Mr J Cain, Solicitor for Public Prosecutions |
REDLICH JA
BEACH JA
KYROU JA:
The applicant was charged with murder following a fight with a visitor to the flat he was staying in. The applicant stabbed the deceased at least eight times in the abdomen. The applicant did not deny stabbing the deceased. At trial he maintained that he had acted in self-defence, and that he did not intend to kill or really seriously injure the deceased.
On 17 November 2015 the applicant was convicted of murder following a nine day trial in the Supreme Court. Following a plea on 15 December 2015, the applicant was sentenced on 22 December 2015 to 17 years’ imprisonment, with a non-parole period of 14 years.
The applicant seeks leave to appeal against his conviction on the sole ground that the verdict is unsafe and not supported by the evidence as it was not open to the jury to be satisfied beyond reasonable doubt that the applicant intended to kill the deceased or cause him really serious injury when he stabbed him.
On 21 November 2014, the deceased, PK, and his partner, CS, went to KC’s flat where they intended to spend the night. The applicant had been living at KC’s flat for two weeks. He was not at the flat when the deceased and CS arrived. Shortly after they arrived, another friend of KC – FM – arrived at the flat.
Around 10:15 pm, the applicant arrived at the flat and shortly afterwards attempted to have the deceased and CS leave. A fight developed in the lounge/kitchen of the flat and the deceased was stabbed at least eight times in the kitchen. The deceased was taken to hospital, where he died on 2 December 2014.
The prosecution case was that the applicant stabbed the deceased eight times intending to kill or really seriously injure him. Further, the actions of the applicant were not necessary to defend himself from being killed or really seriously injured. The defence case was that he did stab the deceased in self-defence but without the intention to kill or really seriously injure the deceased.
Prior to the charge, the prosecution and defence counsel agreed with the trial judge that manslaughter should be left to the jury.
The prosecution argued that the applicant had acted out of anger, not fear, when he stabbed the deceased. He was motivated by a desire to punish the deceased after he had allegedly punched him, and a desire to win the fight. Reliance was placed on the fact that there were eight stab wounds, the depth of the most serious wound being 12 centimetres; the applicant’s angry demeanour in the recording of a call to 000 and the contents of the record of interview. The prosecution argued that the applicant had lied in his record of interview when he denied ever punching the deceased and that impacted on the applicant’s credit.
In charging the jury the judge told the jury that the issues in dispute were murderous intent and whether the prosecution could exclude self-defence.
It is necessary to briefly set out some of the pertinent evidence relied on by the prosecution at trial.[1]
[1]The defence did not call any evidence.
The 000 call made by CS was played to the jury. The applicant’s voice can be heard in the background. The prosecutor submitted in his final address that this call revealed the applicant’s anger. The applicant could be heard saying ‘he punched me in the back of the fuckin’ head, right, he punched me in the back of the fuckin’ head’. The prosecution relied on this call as evidence on which the jury could assess the applicant’s state of mind.
The applicant’s record of interview also contained material, it was submitted by the prosecution, that was capable of bearing on intention as well as self-defence. The Crown submits that the record of interview, including the below remarks, were capable of being used by the jury on the question of intent:
I just grabbed the first thing I seen … the knife … and stabbed him five or six times.
It didn’t even feel like I stabbed him.
Like, I was thinking it was either him or me that were gunna end up a bloody mess …
It was gunna be me or him bleeding on the floor bleeding and fuckin’ wasn’t gunna be me.
I shouldn’t have stabbed him … but he shouldn’t have punched me in the head either.
He followed me into the kitchen to continue it, you know, so I fucking’ grabbed what I grabbed and I stabbed him.
He didn’t have to follow me into the kitchen and continue hitting me, did he? You know what I mean? He had the option and he could have left himself, you know what I mean?
The applicant during his record of interview also demonstrated to the interviewers a swinging movement with his arm a couple of times to show them how he had stabbed the deceased. The applicant said he could not remember how many times he did the swinging movement, but he kept going ‘till he dropped, till he stopped hitting me.’
KC, whose home the confrontation occurred in, gave evidence at a VARE hearing.[2] Relevantly, she said that the applicant and the deceased got into a scuffle that ended up in the kitchen, although she could not see what was going on over the kitchen bench. She said that she saw the deceased hit the applicant over the head. She said that she saw the applicant enter the kitchen first. The deceased followed him.
[2]KC has a mental illness and was not able to give evidence in Court.
CS did not see the fight in the kitchen, she gave evidence of the applicant and the deceased fighting in the lounge, and then moving into the kitchen. She also said she saw the deceased hit the applicant to the head.
None of the witnesses present at the flat actually observed the stabbing. The task of an appellate court where it is argued that a verdict is unreasonable or not supported by the evidence are well versed, and were recently summarised by Kyrou and Kaye JJA in Mejia v The Queen:[3]
The ground of appeal relied on is based on s 276(1)(a) of the Criminal Procedure Act 2009, namely, that the verdicts of the jury are unreasonable or cannot be supported having regard to the evidence. The principles, applicable to such a ground, have been outlined in a number of cases since the decision of the High Court in M v R in 1994, including in R v Hillier, Libke v R and SKA v R. Most recently they were restated by the High Court in R v Baden-Clay.
In order to establish the ground, the applicant must demonstrate that it was not open to the jury to be satisfied beyond reasonable doubt of his guilt on the charge on which he was convicted. It is not sufficient merely to show that there was material which might have led the jury to entertain a reasonable doubt about the applicant’s guilt. Rather, the critical question is whether, on the evidence, that the jury must (as distinct from might) have entertained a doubt about the guilt of the applicant. Ordinarily, in that respect, a doubt experienced by an appellate court may constitute a doubt which the jury ought also to have considered. However, it is important to bear in mind that the jury has the primary responsibility of determining guilt or innocence, and that in that respect the jury enjoys a substantial advantage in seeing and hearing the evidence as it is given in the atmosphere of the criminal trial, which is an advantage not shared by an appellate court. Where the Court of Appeal entertains a doubt about the guilt of the accused, the Court may only conclude that no miscarriage of justice has occurred where the jury’s advantage, in seeing and hearing the evidence, is capable of resolving that doubt.[4]
[3][2016] VSCA 296. The applicant relied on similar observations of Priest JA in Henderson v The Queen [2016] VSCA 61 [42], however the principles were more recently and expansively noted in Mejia [2016] VSCA 296.
[4]Ibid [139]–[140] (citations omitted).
The applicant submits that it was not open to the jury to exclude the reasonable possibility that the applicant stabbed PK without intending to cause him really serious injury. In order to convict, the applicant submits, it was necessary for the jury to find that the only reasonable inference was that the applicant intended to kill or cause really serious injury — it would not have been sufficient that the existence of such an intention was an inference which was open on the evidence.[5]
[5]Knight v The Queen (1992) 175 CLR 495, 502–3.
The applicant relies on a number of matters which he submits tell against concluding that the applicant had murderous intent.
The applicant points to the speed with which the fight developed, and the fact that he was being attacked from behind when he picked up the knife. He also submits that the fact that the knife was a steak knife, rather than a larger weapon is relevant. Additionally, the applicant points to the absence of any background of animosity and the fact that he and PK were generally on good terms. The applicant also relies on his conduct after the stabbing, which he submits was inconsistent with murderous intent. The applicant says that he had not attempted to inflict any further injury. He did not interfere with attempts to help the deceased. He brought a towel to help stop the bleeding. He did not try to dispose of the knife. He made no move to absent himself from the scene. He readily admitted his role to police on their arrival. All of these actions were said to be inconsistent with a murderous intent.
The defence case at trial largely focused on self-defence, but counsel for the applicant at trial did raise matters, similarly to those raised here, which were said to be inconsistent with a murderous intent. Counsel submitted that the fact that all of the stab wounds were to ‘below the ribs’, with ‘no damage to the lungs, no damage to the heart’, pointed against a finding of murderous intent. The applicant submits that he had not tried to hit any vital organs, and was on his account, unsure whether he had actually inflicted any penetrating wound until the deceased fell. Further, he says it was not clear when the deceased was placed in the ambulance that his injuries life threatening, and his death ultimately resulted from later complications (although it was not said that such complications acted as a novus actus interveniens).
The applicant submits that to conclude that the intention to kill or cause really serious injury was the only reasonable inference, the jury would have to wholly reject the applicant’s record of interview. The applicant submits that it is not possible to do that on a fair reading, having regard to the other evidence and to the applicant’s demeanour. He points to the fact that during the interview, much of his account was consistent with the eyewitness evidence — that is, evidence of the wrestling in the kitchen and him being hit in the head, and that he had not exaggerated the nature of the deceased’s attack.
The applicant also noted that at the commencement of the interview, the interviewing police officer said that the interview was in relation to ‘an incident which occurred at [the applicant’s] address.’ The applicant suggests that his tenor in his answers throughout, indicate that it was not within his realm of thought that the deceased would die as a result of the injuries. He further made admissions against his interest during the interview, purportedly in the belief that he had acted proportionately to the fear of being substantially beaten by the deceased.
The Crown submits that there was ample evidence to support the inference that the applicant had a murderous intention. In particular, it submits that the number and type of stab wounds inflicted alone were capable of establishing the existence of the necessary intent. The Crown also relies on the evidence that the applicant was angry prior to stabbing the deceased. Although the witnesses in the flat prior to the stabbing gave varied accounts as to the applicant’s conduct prior to the altercation, the Crown submits that it was not in controversy that the applicant had asked the deceased to leave, the deceased was lying down on the floor and that the applicant commenced to attack him whilst he was on the floor. The Crown submit, as they did below, that the physical response by the applicant which ensued went well beyond what was reasonable in the circumstances. The Crown relies on the fact that the applicant chose to arm himself with a weapon that was inherently dangerous, and was able to inflict the wounds that eventually killed the deceased.
The Crown submits that none of the matters raised above by the applicant, whether viewed in isolation or combination, precluded a finding that a murderous intent existed. The jury were reminded during the prosecutor’s closing address that they must be satisfied beyond reasonable doubt that the applicant intended to kill or cause really serious injury. The prosecutor said:
In a criminal trial you're asked to draw inferences from proven facts, members of the jury, in relation to the state of mind of the accused. And my submission is you can draw a conclusion about someone's state of mind simply from the actions that they perform and from all the surrounding circumstances.
And to put it bluntly, what the prosecution submits to you here is that you can infer that a person who stabs another person eight times to the chest and the abdomen intends to kill or cause really serious injury. This part of the body, as you know, as everyone knows, contains numerous vital organs and plunging a knife into that part of the body is - this many times, members of the jury, you might think the natural consequence or result of that is that really serious injuries occur.
And that everyone knows that and that he knew it. He knew it, and that's exactly what happened here when he stabbed him eight times, he caused really serious injuries …
The Crown submits that in circumstances where conventional directions were given by the trial judge, and where the issue of intent was squarely and fully addressed in front of the jury, it was open to the jury, after assessing all of the evidence outlined above, to return a guilty verdict for murder.
During the applicant’s trial, he relied primarily on self-defence to explain his actions, in stabbing the deceased eight times. The complaint now focuses upon the fact that the applicant did not have the requisite intention for murder.
Counsel for the applicant acknowledged that the jury did not have the benefit of a detailed exposition by counsel of the basis for a finding of manslaughter. He acknowledged that the appeal was based on arguments which were not fully developed before the jury but he said that the applicant’s intention had clearly been a live issue. Counsel for both the prosecution and defence addressed the question whether it could be inferred that he had a murderous intent.
In our opinion, the jury would well have understood, from the closing arguments and the judge’s charge, as to which no criticism is made, that the jury could not convict the applicant of murder without being satisfied that he had such an intent.
There was ample evidence at the trial from which the jury could infer that the applicant had the requisite intention. The conduct of the applicant in the background of the 000 phone call and other evidence strongly suggested that the applicant was in a state of anger at the time. The applicant stabbed the decease eight times to the chest and abdomen, with one wound almost as deep as the length of the knife. The applicant said in his record of interview a number of times that it would be ‘me or him bleeding on the floor.’
As the prosecutor had submitted in closing address, the jury was entitled to infer that a person who stabs another person eight times to the chest and abdomen intends to kill or cause really serious injury. It was clearly open to the jury to be satisfied beyond reasonable doubt upon the evidence to which we have referred that the applicant had the intention to kill or seriously injure the deceased. The complaint that the verdict is unsafe or unsatisfactory cannot be sustained.
The application for leave to appeal must be refused.
- - -
0
1
0