Set aside the order of the Court of Criminal Appeal of Western Australia and in lieu thereof order that:
(i) the appeal to that Court be allowed;
(ii) the verdict be set aside and the conviction quashed and in lieu thereof a verdict of guilty of, and a conviction for, unlawful wounding be substituted;
(iii) the sentence be set aside and in lieu thereof the appellant be sentenced to imprisonment for a period of two years and nine months, such sentence to commence from 15 June 1995, and the appellant be eligible for parole.
Date of Order: 14 March 1997
Reasons for Judgment Delivered: 29 April 1997
FC 97/015
On appeal from the Supreme Court of Western Australia
Representation
L W Roberts-Smith QC with B G Devereaux for the appellant (instructed by Aboriginal Legal Service of WA)
S M Deane QC with J A Girdham for the respondent (instructed by Director of Public Prosecutions (WA))
Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Clifton James Cutter v The Queen
Criminal law - Attempting unlawfully to kill - Police officer stabbed in throat - Proof beyond reasonable doubt of intent - Inference of intent from circumstances - Whether any reasonably possible inference available other than intent to kill.
The Criminal Code (WA), s 283.
BRENNAN CJ AND DAWSON J. The appellant was charged on indictment before the Supreme Court of Western Australia with the following offences:
"(1)On 5 August 1994 at Wiluna [he] attempted unlawfully to kill Alasdair Dugald Kirwan
(2)And further and in the alternative ... on the same date and at the same place [he] with intent to do some grievous bodily harm to Alasdair Dugald Kirwan unlawfully wounded Alasdair Dugald Kirwan."
He was tried before Pidgeon J sitting without a jury and convicted of attempting unlawfully to kill. His appeal to the Court of Criminal Appeal was dismissed by majority (Kennedy and Ipp JJ, Rowland J dissenting). By special leave an appeal was brought to this Court.
The offence of which the appellant was convicted is defined by s 283 of the Criminal Code (WA) the relevant parts of which read as follows:
"Any person who -
(1) Attempts unlawfully to kill another; or
(2) ...
is guilty of a crime, and is liable to imprisonment for life ..."
An attempt to kill under sub-s(1) is committed only if the offender intends by what he does to cause death[1]. The issue in this case is whether the evidence that was accepted by Pidgeon J was sufficient to establish that element beyond reasonable doubt.
The relevant facts which Pidgeon J found established were as follows:
"The accused person is a young man of aboriginal descent. He attended school at Meekatharra from grade 1 to Year 8. At about 9.20pm on 5…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Cutter v The Queen [1997] HCA 7
Case
[1997] HCA 7
Decision Date
CaseChat Overview and Summary
In *Cutter v The Queen*, the High Court of Australia considered an appeal by the applicant against his conviction for attempting unlawfully to kill a police officer. The applicant had stabbed the officer in the throat during an incident.
The central legal issue before the High Court was whether the evidence presented at trial was sufficient to prove, beyond reasonable doubt, that the applicant possessed the specific intent to kill the police officer. The court was required to determine if any reasonably possible inference, other than an intent to kill, could be drawn from the circumstances of the stabbing.
The High Court reasoned that while the act of stabbing a police officer in the throat was serious and could support an inference of intent to cause grievous bodily harm, it did not necessarily exclude all other reasonable inferences. The court found that the evidence did not exclude the possibility that the applicant intended to cause serious harm but not necessarily to kill. Consequently, the High Court allowed the appeal, quashed the conviction for attempting to unlawfully kill, and substituted a conviction for unlawful wounding, imposing a lesser sentence.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the order of the Court of Criminal Appeal of Western Australia and in lieu thereof order that:
(i) the appeal to that Court be allowed;
(ii) the verdict be set aside and the conviction quashed and in lieu thereof a verdict of guilty of, and a conviction for, unlawful wounding be substituted;
(iii) the sentence be set aside and in lieu thereof the appellant be sentenced to imprisonment for a period of two years and nine months, such sentence to commence from 15 June 1995, and the appellant be eligible for parole.