Draper v The Queen - [2000] WASCA 160

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: DRAPER -v- THE QUEEN [2000] WASCA 160

CORAM: KENNEDY J
WALLWORK J
MURRAY J

HEARD: 4 APRIL 2000

DELIVERED : 9 JUNE 2000

FILE NO/S: CCA 96 of 1999

BETWEEN: DEAN MAXWELL DRAPER
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Appeal against conviction for doing grievous bodily harm with intent - Issue of identification of applicant as driver of vehicle which was driven at and struck victim - Effect of admission of identity - Submission of no case raised question of capacity of evidence to support conclusion of intent to do grievous bodily harm - Validity of ground challenging ruling that there was a case to answer - Direction required with respect to element of specific intent

Legislation:

Nil

Result:

Extension of time granted
Leave to appeal refused

Representation:

Counsel:

Applicant: In person
Respondent: Mr R E Cock QC

Solicitors:

Applicant: In person
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Alexander v The Queen (1981) 145 CLR 395
Cutter v The Queen (1997) 143 ALR 498
Davis v The Queen (1990) 5 WAR 269
Doney v The Queen (1990) 171 CLR 207
Duke v The Queen [1999] WASCA 215
Jukov v The Queen (1994) 76 A Crim R 353
Moore v The Queen, unreported; CCA SCt of WA; Library No 980536; 18 September 1998
Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482
Naylor v The Queen, unreported; CCA SCt of WA; Library No 960147; 20 March 1996
Penny v The Queen (1997) 91 A Crim R 288
R v Berry [1998] Crim LR 487
R v Bilick (1984) 36 SASR 321
R v Birks (1990) 19 NSWLR 677
R v Cockley (1984) 79 Cr App R 181
R v Smith [2000] 1 All ER 263
R v Wood [1974] VR 117
Shepherd v The Queen (1990) 170 CLR 573
Strachan v Graves (1997) 141 FLR 283
Suresh v The Queen (1998) 153 ALR 145

Case(s) also cited:

Butler v The Queen, unreported; CCA SCt of WA; Library No 950454; 21 August 1995
"C" (A Child) v The Queen, unreported; CCA SCt of WA; Library No 950522; 29 September 1995
Gebert v The Queen (1992) 60 SASR 110
Ginks v Phillips, unreported; SCt of WA (White J); Library No 930452; 20 August 1993
He Kaw Teh v The Queen (1985) 157 CLR 523
Knight v The Queen (1992) 175 CLR 495
M v The Queen (1994) 181 CLR 487
Martin v Osborne (1936) 55 CLR 367
McGinley v The Queen, unreported; CCA SCt of WA; Library No 930533; 1 October 1993
Mraz v The Queen (1955) 93 CLR 493
Parker v The Queen (1963) 111 CLR 610
Parker v The Queen, unreported; CCA SCt of WA; Library No 960740; 20 December 1996
Plomp v The Queen (1963) 110 CLR 234
R v Crabbe (1985) 156 CLR 464
R v Deering (1986) 43 SASR 252
R v Hallam (1985) 42 SASR 126
R v Hamood (1987) 46 SASR 340
R v Penny (1997) 91 A Crim R 288
R v Shannon (1987) 47 SASR 347
R v Storey (1978) 140 CLR 364
Schuster v The Queen, unreported; CCA SCt of WA; Library No 970180; 23 April 1997
Wilde v The Queen (1988) 164 CLR 365
Woolmington v DPP [1935] AC 462

KENNEDY J: I have had the benefit of reading in draft the reasons to be published by Murray J. Generally for the reasons which his Honour gives, I also would grant an extension of time but dismiss the application for leave to appeal.
In particular, I would express my agreement with Murray J that evidence of the identification of an accused person by means of a photograph should only be led where it is unavoidable, and where another more preferable form of identification is not practicable. An accused person can himself observe how an identification parade is being conducted. That is not the case with a photoboard identification, when, in addition, no independent person is normally present to confirm the fairness of the process. This appears to me to be an important consideration when it comes to the issue of whether the evidence should be admitted.
The question of whether, on an appeal against conviction on the ground that the trial Judge erred in ruling against a submission on behalf of an accused of no case to answer, the appellate tribunal should consider only the evidence given before the time the submission was made, or whether it should consider all the evidence given in the trial, in my respectful opinion, remains open. Underwood J, in Strachan v Graves (1997) 141 FLR 283, at 291 ‑ 292, referred to the conflicting views which have been expressed in Australia. To the cases which his Honour cited may be added the English decisions in R v Cockley (1984) 79 Cr App R 181 and R v Berry [1998] Crim LR 487. As this was not the subject of any significant argument before us, and as I am in agreement with Murray J that nothing turns upon it in this case, I would leave the determination of this question to another day.
WALLWORK J: I agree with the comments of Kennedy J concerning whether on an appeal against conviction on the ground that the trial Judge erred in ruling against a submission of no case to answer, the appellate tribunal should consider only the evidence which had been given at the time the submission was made, or whether it should consider all the evidence given in the trial.
On the question of the desirability of formal identification parades, I refer to the reasons for judgment in Penny v The Queen (1997) 91 A Crim R 288.

Otherwise, I agree with the reasons for judgment of Murray J which I have had the advantage of reading and to the orders proposed by his Honour.
MURRAY J: The applicant was tried by Malcolm CJ and a jury in the Supreme Court in Geraldton. He was tried jointly with a Ms Stafford. The indictment charged four offences -
(1)On 25 April in Geraldton the applicant drove a motor vehicle at a Ms Vince with intent to kill her.
(2)Alternatively he unlawfully did grievous bodily harm to Ms Vince with intent to maim, disfigure or disable her.
(3)Alternatively, he assaulted Ms Vince (again as the Crown case was presented by driving a motor vehicle so that it struck her) with intent to do her grievous bodily harm.
(4)At about the same time in Geraldton Ms Stafford, knowing that the applicant had committed the crime of intentionally striking Ms Vince with her motor vehicle, assisted him in order to enable him to escape punishment; ie, she was an accessory after the fact.
On 13 April 1999, after a five day trial, the applicant was convicted of the third count on the indictment. Ms Stafford was acquitted. On 14 May 1999 the applicant was sentenced to 3 years imprisonment for this offence and in addition he received a further 6 months imprisonment cumulative for a much earlier offence of damaging Ms Vince's vehicle. A parole eligibility order was made with respect to the aggregate term of 3 years and 6 months.
The present application is for leave to appeal against the conviction. It was instituted on 20 May 1999, about a week after the applicant was sentenced, but after the expiry of the 21 day period allowed from the date of conviction. The applicant explains, and his solicitor, who appeared as counsel at the trial, confirms, that although the applicant wished to appeal he was wrongly advised by his solicitor that an appeal could not be instituted until he was sentenced. In the meantime an application was made to the court for transcript of the trial. The transcript of the directions given by Malcolm CJ was not received until 17 May. The trial transcript itself had still not been received when the application was made. The applicant explains that it was necessary to be able to peruse the transcript of the directions given by the Chief Justice before a decision

could be made about whether it was considered that the grounds of appeal were sustainable. I would grant the extension of time.

The applicant was not represented by counsel upon the hearing of the appeal, but presented his case in writing. The written submissions were well prepared and extended to over 30 pages. Their author was the applicant's solicitor who, as I have said, appeared at the trial as counsel and who instituted the present application. In accordance with convention, senior counsel for the respondent, the Director of Public Prosecutions, relied upon an outline of submissions and did not present oral argument.
The grounds upon which the applicant proceeded are as follows:
"1.The learned trial judge erred in ruling that photographic evidence of identification would be admitted without evidence of any effort being made by the police to conduct an identification parade.
2.The learned trial judge erred in ruling that there was a case to answer because the evidence at that time was incapable of excluding an innocent hypothesis beyond reasonable doubt.
3.The learned trial judge erred in failing to direct the jury or, in the alternative, did not sufficiently direct the jury on the elements of intent and in particular, did not direct the jury that a finding of recklessness was not sufficient to support a conviction.
4.The conviction is unsafe or unsatisfactory."
Before addressing the grounds of appeal directly it is useful to say something about the nature of the Crown case and that of the applicant as it was presented at trial. The applicant and Ms Vince had earlier had an amorous relationship which had ended acrimoniously a considerable time before the night in question. Following the breakdown of this relationship the applicant formed a new relationship with Ms Stafford. All those involved in the case appear to have been interested in motor racing and the events of the night of 25 April 1998 occurred at the Geraldton Speedway. Ms Vince was serving as a member of the pit crew of her current boyfriend who was racing that night. The applicant and Ms Stafford were present as spectators. They had driven to the speedway in Ms Stafford's red Gemini motor car.
There was a considerable body of evidence at trial that Ms Vince was lucky to escape serious injury when, at about the time of the last race for the evening, in the well lit pit area of the speedway, she was struck by a car while assisting to load the vehicle which had been raced by her boyfriend onto a trailer. The car which hit her turned and drove back past her before leaving the pit area and driving away. She was unable to see who was driving the vehicle. She had seen the applicant much earlier in the evening in the bar of the speedway, but she had not spoken to him and nor had she had any contact with Ms Stafford.
There were quite a number of witnesses, including people who, like Ms Vince, had been pushing her boyfriend's vehicle up a set of steel ramps onto the trailer. It seems that the vehicle driven by Ms Vince's assailant actually struck one of those ramps, narrowly missing other people, before it struck Ms Vince. The vehicle was described as a red or maroon Gemini and many people saw that there were two occupants in the front seats of the vehicle, the speed of which was described by witnesses as being anywhere between 20 and 50 km/h. No one was able to identify the driver, but a number of witnesses said that person was a male and the passenger was a female. She was described by some witnesses as being apparently distressed. After the collision between the Gemini and Ms Vince the vehicle came into collision with a demolition derby vehicle before it stopped and then left the pit area at speed. The collision with the demolition derby car damaged the Gemini.
The police investigators asked Ms Vince if she knew anyone who had such a vehicle and she mentioned the name of Ms Stafford. The police searched for the vehicle registered in the name of Ms Stafford and found it being driven by her. Evidence was led at trial that Ms Stafford then suggested that she had been the driver of the vehicle when it struck Ms Vince. There is no need in the present context to discuss the use to which that evidence might be put at the joint trial of the applicant and Ms Stafford.
The vehicle was damaged and there was evidence that paint on the Gemini at the site of the damage matched that of the demolition derby car and on that vehicle, there was paint matching the Gemini. But really the question whether the vehicle which struck Ms Vince was that belonging to Ms Stafford fell away when at trial, on behalf of both the applicant and Ms Stafford, it was formally admitted that the foreign paint samples taken from each vehicle matched the paint of the other vehicle.
The evidence of the circumstances in which the Gemini was brought into collision with Ms Vince was amply capable of persuading the jury that the vehicle was deliberately driven at and brought into collision with her. The first important question therefore was whether the applicant was the driver. If so, there would be no doubt that he would be guilty of assaulting Ms Vince by deliberating driving the vehicle into collision with her. The first ground of the application goes to this question.
The first person to whom either the applicant or Ms Stafford spoke after the incident in question was a Ms Goddard, a friend of Ms Stafford, who had been with her earlier during the evening. The applicant was in the bar. Ms Stafford left Ms Goddard at one point and then returned distressed, saying that her face had been scratched by someone who had asked her whether she was now going out with the applicant. The two women went to the bar and spoke to the applicant. Ms Goddard was asked to look after the children and she left the other two. She did not again see Ms Stafford until after the speedway meeting was finished. Later, after they had left the speedway, Ms Stafford told her that the applicant had run over somebody in her car. Ms Stafford attempted to enrol Ms Goddard to provide the applicant with an alibi. Of course none of that was evidence against the applicant and when he was interviewed by investigating police officers he made no admissions.
Turning then to the first ground of the application, the matter of photoboard identification was discussed in the absence of the jury. The transcript reveals that the point arose during the course of the evidence given by a witness, a Mr Doust. On the night in question, with his sister, a Ms Fitzpatrick, he had been working at the entrance to the pits area controlling those who went in and out. Ms Fitzpatrick also gave evidence immediately after Mr Doust of events which occurred at that place.
The evidence was that a man and a woman came to the gateway and tried to get in to the pits area. The man appeared to be intoxicated. He was angry and aggressive. He said he had to "get someone". The woman was trying to get the man to leave, but she did say to Ms Fitzpatrick, "What about this scratch on my face?" Ms Fitzpatrick said she did not see a scratch. When they were refused entry the two people left.
At that point of his evidence, when it appeared that Mr Doust was to be asked to identify the people with whom he and his sister had been dealing, counsel for Ms Stafford, not for the applicant, objected to a photoboard containing a photograph of Ms Stafford being put to the witness. Two points were made. First it was mentioned that Mr Doust had not been asked to view the board until about seven months after the incident occurred. That might have been a point affecting the weight of the evidence, but not, I would have thought, its admissibility. As to that the objection, which it seems to me really sought the exercise of the trial Judge's discretion to exclude the evidence on the ground of unfairness to the accused Stafford, was that it would be obvious to the jury that the police had in their possession a photograph of Ms Stafford. That, it was submitted, would prejudice her before the jury.
Counsel then added that it seemed to him that the issue of identification was not a major one because:
"…we certainly have never intended to dispute that we were present at the time of this conversation between Mr Doust, his sister and the two accused persons, and if it becomes necessary to remove the prejudice that we would feel in relation to this particular photoboard identification, we would stipulate pursuant to s 32 that we were there."
That was a reference to the making of a formal admission pursuant to the Evidence Act 1906 (WA), s 32. Malcolm CJ said that he was minded to admit the evidence of photoboard identification unless there was an admission which made evidence of identification unnecessary. Counsel for Ms Stafford then made that admission in the presence of the jury and that concluded the witness's examination in chief.
Counsel for the applicant made no such admission at that time. He cross‑examined Mr Doust about matters affecting his client whom he described as "the male person" who had been present with Ms Stafford. Mr Doust made it clear that he was not able to identify that person.
Ms Fitzpatrick was then called. Before she commenced her evidence counsel for the applicant said:
"The accused Mr Draper intends to formally make similar admissions to the admissions that have been made by the accused Stafford that he was the person that was spoken to at the gates and also that he was the driver of the Gemini car at the time Ms Vince was in fact hit."
Thereafter Ms Fitzpatrick gave her evidence without, as was apparently the case, saying that she had identified the applicant in both those contexts by selecting his image from a number of pictures on a photoboard.
I have mentioned Ms Fitpatrick's evidence about the incident at the gate to the pits area. She went on to say that she later saw the two accused persons in the pits area in the red Gemini. The applicant was the driver and Ms Stafford was seated in the front passenger seat. The vehicle drove close to Ms Fitzpatrick. The applicant seemed to be looking for someone. Ms Stafford was waving her arms about and appeared to be saying something. Ms Fitzpatrick then saw the Gemini hit the trailer ramp, bounce off it and hit the person who was Ms Vince, a person not known to Ms Fitzpatrick.
We were told that the admission of identity made by the applicant followed earlier unsuccessful objections to evidence of identification by the use of a photograph which was in the possession of the police, together with the photographs of other people, in the form of a photoboard. So far as the applicant was concerned, we were told that there was no apparent attempt to arrange an identification parade. We were told that the photograph of the applicant was a file photograph taken on the occasion of an earlier arrest. The photoboard does not appear to have been tendered on the voir dire and is not available to us.
Nor is the argument with respect to the admissibility of that material available to us. Apparently, what is described by the court recording service as a "mechanical fault" occurred, with the result that none of that material was recorded. I presume reliance was placed upon the "rogue gallery" effect which may be attendant upon a photoboard identification process, but how the argument was put to Malcolm CJ and his Honour's ruling upon it is not known to us, except that we understand that his Honour ruled the evidence to be admissible and declined to exclude it in the exercise of his discretion. Hence, we are told, it was considered that to avoid the prejudice perceived by the applicant to arise out of this form of evidence of identification his identity was admitted.
It is not the law that evidence of identification by an identification parade is the only form of such evidence which is admissible and there are a number of processes which may, if properly conducted, be employed to provide acceptable evidence of identification. The so called "street parade" is one such procedure. They all have the advantage that the cogency of the evidence is increased if the process is properly conducted because direct identification of the suspect takes place.
Evidence of identification from a photograph is clearly of less probative value and the courts are acutely conscious of the rogues gallery effect and the prejudice which may arise to an accused person from that source. It has long been said therefore that whilst such evidence may be admissible, it may in the particular circumstances of the case be excluded if it would be unfair to introduce the evidence in that form, or if in the particular circumstances of the case the prejudicial effect of the evidence would substantially outweigh its probative value. Whether that should have been held to be so in this case is impossible to consider without the nature of the evidence which would have been led being before us.

However it should be said that by reason of the above considerations, evidence of identification of a suspect by means of a photograph should only be led where it is unavoidable and where another more preferable form of identification is not practicable. In Alexander v The Queen (1981) 145 CLR 395 at 402, Gibbs CJ referred to the discretion to exclude evidence if the strict rules of admissibility would operate unfairly against the accused. His Honour said:
"It would be right to exercise that discretion in any case in which the Judge was of the opinion that the evidence had little weight but was likely to be gravely prejudicial to the accused. In such a case as the present it seems to me proper for a trial Judge in deciding how he should exercise his discretion, to take into consideration that it is the duty of the police officers investigating crime to take every precaution reasonably available to guard against the miscarriages of justice that can occur, and have in fact occurred, because of honest but mistaken evidence of identification, and that for this reason 'only in exceptional cases should photographs be used at a stage when some particular person is directly suspected by the police and they are able to arrange an identification parade or some other satisfactory alternative means whereby the witness can be asked directly to identify the suspected person': R v Russell (1977) 2 NZLR 20 at 28."
I would have thought that in the light of such observations, oft repeated by this and other courts, it would be a counsel of prudence for an investigating police officer to follow the course suggested, thereby maximising the prospect that admissible evidence of identification, which will not be excluded in the exercise of a judicial discretion, will be obtained. However, in my view the issue raised by this ground of application fell away as a consideration material to the fairness of the trial process in this case once the applicant admitted that he was the driver of the vehicle and used it in the way described so as to constitute an assault upon Ms Vince.
There is no suggestion that the decision to make the admission was that of counsel uninstructed by the applicant. What he says is that the admission would not have been made had Malcolm CJ not ruled the evidence to be admissible and, if the evidence was excluded there was no prospect that the applicant could have been convicted. So much may be true, but in my opinion the applicant is now bound by the way he conducted his defence and by the way he instructed counsel as to how the trial was to be conducted on his behalf. There was simply no issue as to identity and in those circumstances it cannot be said that the trial process in any way miscarried so as to occasion a miscarriage of justice: R v Birks (1990) 19 NSWLR 677, 685; Jukov v The Queen (1994) 76 A Crim R 353, 361; Suresh v The Queen (1998) 153 ALR 145 per McHugh J at 151, Kirby J at 159 ‑ 160 and Payne J at 162; and Moore v The Queen, unreported; CCA SCt of WA; Library No 980536; 18 September 1998 per Malcolm CJ, with whom Wallwork and Murray JJ agreed at 12 ‑ 14.
It is noteworthy that the applicant gave evidence in his own defence. He did not, of course, deny that he was the driver of the Gemini. Indeed his sworn testimony was, briefly summarised, that he had gone to the speedway with Ms Stafford, intoxicated, and repaired to the bar, becoming more intoxicated. When Ms Stafford complained to him that a woman had attacked her by scratching her face because she was going out with him, he became very angry. He attributed responsibility for what occurred to Ms Vince. He went looking for her, he said, to speak with her and tell her that she should not involve Ms Stafford in her antipathy towards him. He did not, he said, mean to attack her in any way.
After he was refused entry at the gateway in the circumstances described by Mr Doust and Ms Fitzpatrick, with whose evidence he disagreed in that he said he did not say that he wished to "get someone", but he said he needed to speak to someone, he went to Ms Stafford's car and drove into the pit area. Ms Stafford did not want to go, but he insisted. He was driving slowly when he saw Ms Vince. He turned the vehicle towards her, accelerated and drove directly at her. When asked about his intention he said:
"I wanted to hurt Tanya Vince because I was angry and intoxicated. I didn't give any thought to the consequences that it may kill her or break any bones at the time. I just didn't ‑ it just didn't occur to me. I didn't think of it."
The applicant denied intending to kill Ms Vince or to threaten her life. He denied any intention to maim, disfigure or disable her, and he denied that he intended to cause her any injury which would or may have had permanent consequences to her life or health.
When cross‑examined the applicant agreed that when he saw Ms Vince he "just tramped [his] foot and went straight at her". He agreed he wanted to hurt her and his intention was to "just give her a bump with the car", to "bruise her" by striking her with the left side of the front mudguard. I would not uphold ground 1.
Ground 2 seeks to appeal against the conviction on the ground that Malcolm CJ erred in ruling that there was a case to answer. This ground is concerned with the element of the intention to cause Ms Vince grievous bodily harm. It is submitted that the evidence led by the Crown was incapable of excluding beyond reasonable doubt the hypothesis that the applicant had no such intention, but was merely, at worst, reckless as to whether as a result of his actions Ms Vince would suffer such harm.
In my opinion this is not a proper ground upon which an application for leave to appeal against the conviction may be based; nor, if it was the sole ground of appeal relied upon, would it support an appeal as of right. Under the Criminal Code (WA), s 688(1)(a), an appeal against conviction may be brought on any ground of appeal which involves a question of law alone and, under s 688(1)(b), an appeal against conviction may be brought by leave upon any ground of appeal which involves a question of fact alone or a question of mixed law and fact, or upon any ground which appears to the Court of Criminal Appeal to be a sufficient ground of appeal. But in each case it is the conviction against which the appeal may be brought and there is no provision in the Code for any form of interlocutory appeal against a ruling or decision of the trial Judge made during the course of the trial: Duke v The Queen [1999] WASCA 215; 13 October 1999, an application for leave to appeal against an interlocutory order refusing to the applicant a separate trial. The judgment was that of Malcolm CJ, with whom Kennedy and Pidgeon JJ agreed.
It follows, in my opinion, that in a competent application for leave to appeal against conviction, a proper and acceptable ground is one which in some way challenges the conviction and ground 2 patently is not directed to that end. A ground in this form was considered to be inappropriate by Malcolm CJ in Davis v The Queen (1990) 5 WAR 269, 271 and that view was followed by this Court in Naylor v The Queen, unreported; CCA SCt of WA; Library No 960147; 20 March 1996 in a joint judgment delivered by Pidgeon, Rowland and Owen JJ.
Indeed, that has long been the view of the Court and in my respectful opinion it is correct, although I note that in respect of the rather differently worded provisions of the Criminal Appeal Act 1968 (Eng), s 2(1), the English Court of Appeal considered that an appeal against conviction could be advanced on the ground that the trial Judge wrongly rejected a submission of no case to answer at the end of the prosecution case: R v Smith [2000] 1 All ER 263. It was held that the Court of Appeal would judge the position at the time when the submission was made and would not consider evidence admitted thereafter as part of the defence case. With the greatest of respect for that view I find it unpersuasive, particularly in the context of the Criminal Code.
It follows that what is to be considered is not the sufficiency of the case to go to the jury at the close of the prosecution evidence, but the sufficiency of the evidence in its entirety to sustain the conviction. Again, it has long been the view in this State that that is the appropriate inquiry. That is the view which has also been taken at least in Victoria: R v Wood [1974] VR 117, 119 where the Full Court observed that if the verdict was supportable on the whole of the evidence, it could not be said that any substantial miscarriage of justice has occurred, even if there was an error on the part of the trial Judge in allowing the case to go on at the conclusion of the prosecution case.
However, it is convenient to observe that in my respectful opinion there is nothing to suggest that Malcolm CJ did err in ruling that the applicant had a case to answer. His Honour correctly directed himself as to the law, citing his judgment, with which Kennedy and Ipp JJ agreed, in Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482. That case discussed the proper approach to a no case submission made by the accused in a circumstantial evidence case such as this. The Court followed the judgment of King CJ in R v Bilick (1984) 36 SASR 321 at 335 where the test was stated to be whether the evidence led by the Crown, taken at its highest, was capable of establishing the guilt of the accused beyond reasonable doubt. At 337, in respect of a circumstantial evidence case, King CJ said:
"Where the case is a circumstantial or partly circumstantial case and therefore depends upon inferences, the question may be expanded so that it becomes: On the assumption that all the evidence of primary fact considered at its strongest from the point of view of the case for the prosecution, is accurate, and on the further assumption that all inferences which are reasonably open, are drawn, is the evidence capable of producing in the mind of a reasonable person satisfaction beyond reasonable doubt, of the guilt of the accused?"
Malcolm CJ reminded himself that at that stage the position of the trial Judge is different from that of an appellate Court which may later be asked to examine the sufficiency of the evidence to sustain the conviction. His Honour referred to the passage in the judgment of the High Court in Doney v The Queen (1990) 171 CLR 207 at 214 ‑ 215 that:
"…if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty."
The applicant is perfectly correct to argue that in a circumstantial case, the proper application of the rule that the burden of proof beyond reasonable doubt rests upon the prosecution in respect of every element of the offence charged means that the jury may not infer guilt from the facts as they find them to be unless that is the only inference reasonably open on the evidence. A convenient citation of authority for that proposition is Shepherd v The Queen (1990) 170 CLR 573, 578 ‑ 579 per Dawson J, with whom Mason CJ, Toohey and Gaudron JJ agreed. But the question for the trial Judge upon a no case submission is not whether the jury should draw an inference of guilt (in this case with respect to the intention of the applicant) upon the basis that it was the only inference reasonably open. The question for the trial Judge is the different question whether, taken at its highest, the evidence led by the Crown establishes facts capable of supporting the inference of intention if the jury should choose to draw it.
Malcolm CJ remarked upon the evidence which was capable of sustaining the conclusion that the applicant was the driver of the motor vehicle which, at a speed of perhaps as high as 50 kph, was deliberately driven directly at Ms Vince with the intention that it would strike her. There was the motive arising out of the acrimonious breakdown of their relationship, the evidence of the applicant's anger and his determined efforts to get into the pit area so that he might "get" the person who later proved to be Ms Vince. There was evidence of purpose and intention despite the level of the applicant's intoxication, and in those circumstances it was clearly open to the jury to infer at least the intention to do Ms Vince grievous bodily harm. As I have said, it did not need to be the case that the jury would or should on the evidence led thus far draw that inference, but simply that the jury could do so on the basis that in their view the inference was the only one reasonably open so as thereby to establish the applicant's guilt beyond reasonable doubt. Even if ground 2 were open to be considered, it has in my opinion no merit.
Turning then to ground 3 and the question of the directions given to the jury by Malcolm CJ in respect of the question of intent relevant to all the counts on the indictment affecting the applicant, it is convenient to start with a review of those directions. His Honour simply spoke throughout of the necessity for the jury to find it established beyond reasonable doubt that at the time the applicant did the acts relevant to the various counts, he intended to kill Ms Vince, to maim, disfigure or disable her, or to do her grievous bodily harm. His Honour did not seek to define the term "intention", but he told the jury that as intention was a state of mind, it had to be proved in this case by inference from what the jury found the applicant did or said and the surrounding circumstances as the jury found them to be. His Honour correctly directed the jury in the terms approved in Shepherd as to when the jury would be justified in drawing such an inference. His Honour then reviewed the evidence, to most of which I have referred above. He went on to speak of the relevance of intoxication in respect of the formation of a specific intention and he discussed the evidence in that regard.
His Honour then distinguished intention from motive or desire and he pointed out that to establish a motive for the particular attack upon Ms Vince by the use of the motor car might assist in coming to a conclusion about the applicant's specific intention. His Honour then summarised his directions on this aspect of the case specifically in relation to each of the first three counts on the indictment. In the course of doing so with respect to count 3, his Honour explained the type of injury which would constitute grievous bodily harm, concluding his directions in the following way:
"The offence does not involve proof that he actually caused grievous bodily harm. It is sufficient if you are satisfied beyond reasonable doubt that he intended to hit her with the car and by doing so intended to cause her bodily injury of such a nature as to endanger or to be likely to endanger her life or to cause or be likely to cause permanent injury to her health.
So it would be enough if he intended to cause permanent injury to health, and if you are satisfied that that was his intention, and you were satisfied that he deliberately drove the car at her with the intention of hitting her, it would be open to you to find him guilty as charged in respect of count 3."
At the conclusion of his Honour's charge to the jury counsel raised various matters upon which they sought redirection. Counsel for the applicant submitted that it was necessary for his Honour to explain what intention was so as to distinguish it from foreseeability of the consequences of the applicant's conduct. The submission was that the Judge should direct the jury "that for intention to be proved, not only must Mr Draper have foreseen the consequence, but he must also have desired it." It will be noted that ground 3 adds the rather different complaint that his Honour erred in not directing the jury that a finding of recklessness would be insufficient to support the conviction.
I have reviewed the evidence, including that of the applicant whose case was, of course, that although he deliberately drove the car at Ms Vince with the intention of striking her with it, he gave no thought to the consequence that Ms Vince might be killed or seriously hurt. Because he was angry and intoxicated he said he actually intended to hurt her, but not to seriously hurt her; to cause her a few bruises. His evidence was that he did not actually foresee that any such serious consequence might occur; he just did not turn his mind to the issue at all.
That being the case, it seems to me that to attempt to explain intention in terms of foresight of consequences would have been calculated to mislead the jury. Nor I think was it necessary to expressly address the distinction between intention and recklessness. The direction given by Malcolm CJ was perfectly apt to require the establishment of intention in the sense that the word conveys as an ordinary expression of the language. The jury could not, I think, have considered that the requirement of intention was satisfied if they concluded that, although they were not satisfied beyond reasonable doubt that the applicant intended to cause Ms Vince grievous bodily harm, they were satisfied that his behaviour was so grossly negligent as to be properly described, as a matter of law, as recklessness.
It is unnecessary for the purpose of deciding this application, to discuss the way in which the courts have considered the matter of intention and the statements of authority which have been made in relation thereto. A number of the relevant authorities were reviewed by Kirby J in Cutter v The Queen (1997) 143 ALR 498 at 509 ‑ 511. His Honour there made the points that it is the subjective intention of the accused person with which the Court is concerned, "mere recklessness towards or foresight of the likelihood of, such harm occurring without such a specific intent is not sufficient." (510). At 511 his Honour said:
"It is important to draw a distinction between the intention of the accused and his or her motives, desires, wishes or hopes in doing the act alleged to constitute the crime charged. Attempts have been made to define the meaning of 'intent' or its derivatives. However, the better view is that the word, being one of ordinary acceptation, should not be defined but should be left to the trier of fact without elaboration as to its meaning. The only exception is a case where some element in the evidence suggests the need for elucidation, so as to draw the distinction between intention, on the one hand, and the accused's motives, desires, wishes, hopes, reasons or expectations, on the other. Clearly enough, where there is no direct evidence to which the trier of fact can safely resort, so as to draw an inference as to the 'subjective' intention of the accused, the principal focus of attention will ordinarily be the facts surrounding the alleged offence."
As has been seen, in this case Malcolm CJ did draw the distinction between intention and motive or desire. Beyond that, in my respectful opinion, no more was required than that his Honour should clearly speak of the necessity to establish the relevant intention beyond reasonable doubt and this clearly his Honour did. I would not uphold ground 3.
As to ground 4, it is, of course, in an unsatisfactory form as it entirely lacks any particularity. The written case simply says in respect of this ground that reliance is placed upon the arguments presented in support of grounds 2 and 3. It follows that in my opinion ground 4 also is without merit and it need only be said that in my opinion the evidence amply supported the conclusion of guilt to which the jury came, beyond reasonable doubt. I would refuse the application for leave.