Flash v The Queen

Case [2020] NTCCA 5

CITATION:Flash v The Queen [2020] NTCCA 5

PARTIES:FLASH, Baden

v

THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  CRIMINAL APPEAL from the SUPREME COURT exercising Territory jurisdiction

FILE NO:CA 9 of 2019 (21703735)

DELIVERED:  19 June 2020

HEARING DATE:  4 December 2019

JUDGMENT OF:  Grant CJ, Southwood and Kelly JJ

CATCHWORDS:

CRIME – Appeals – Appeal against conviction – Miscarriage of justice

Applicant convicted of murder – Whether trial miscarried by failure to provide adequate directions to the jury in relation to appellant’s intoxication and whether he formed the specific intent to cause the death of, or serious harm to, the victim by his conduct – Law must be given to the jury with reference to the facts of the particular case and an explanation of how it applies to those facts – Directions inadequate – Appeal allowed and new trial ordered.

Criminal Code 1983 (NT) s 411, s 417

Alford v Magee (1952) 85 CLR 437, Azzopardi v The Queen (2001) 205 CLR 50, De Gruchy v The Queen (2002) 211 CLR 85, Doggett v The Queen (2001) 208 CLR 343, Green v The Queen (1989) 95 FLR 301, Holland v The Queen (1993) 67 ALJR 946, KRM v The Queen (2001) 206 CLR 221, Melbourne v The Queen (1999) 198 CLR 1, Mulkatana v The Queen (2010) 28 NTLR 31, Murray v The Queen (2002) 211 CLR 193, Parker v The Queen (1963) 111 CLR 610, R v Anderson [1996] 2 VR 663, R v Chai (2002) 76 ALJR 628, R v Mogg (2000) 112 A Crim R 417, R v O'Connor (1980) 146 CLR 64, RPS v The Queen (2000) 199 CLR 620, Spencer v The Queen (2003) 172 FLR 471, Stamp v The Queen [2012] NTCCA 15, Weiss v The Queen (2005) 224 CLR 300, Wilde v The Queen (1988) 164 CLR 365, referred to.

REPRESENTATION:

Counsel:

Appellant:J Tippett QC with T Collins

Respondent:  S Geary

Solicitors:

Appellant:North Australian Aboriginal Justice Agency

Respondent:  Office of the Director of Public Prosecutions

Judgment category classification:    B

Number of pages:  24

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Flash v The Queen [2020] NTCCA 5

No. CA 9 of 2019 (21703735)

BETWEEN:

BADEN FLASH

Appellant

AND:

THE QUEEN

Respondent

CORAM:    GRANT CJ, SOUTHWOOD and KELLY JJ

REASONS FOR JUDGMENT

(Delivered 19 June 2020)

Grant CJ and Southwood J:

  1. At some time on the night of 19 January or the morning of 20 January 2017, the appellant bashed his partner to death by hitting her repeatedly in the head with a brick.  On 13 July 2018, he was found guilty of murder following a trial by jury.  The principal issue arising in this appeal is whether the trial miscarried by reason of a failure on the part of the learned trial judge to provide adequate directions to the jury in…

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AGLC
Flash v The Queen [2020] NTCCA 5
Case
[2020] NTCCA 5
Decision Date

CaseChat Overview and Summary

In *Flash v The Queen*, the applicant appealed against a conviction for murder. The central issue before the Court of Appeal was whether the trial judge had provided adequate directions to the jury regarding the applicant's intoxication and its potential impact on his ability to form the specific intent to cause death or serious harm.

The Court of Appeal was required to determine whether the trial judge's directions to the jury concerning the relevance of the applicant's intoxication to the formation of specific intent were sufficient. Specifically, the court considered whether the jury had been properly instructed on how the evidence of intoxication could negate the proof of specific intent beyond reasonable doubt, and whether these directions adequately related the legal principles to the factual circumstances of the case.

The Court of Appeal, comprising Grant CJ, Southwood and Kelly JJ, allowed the appeal and ordered a new trial. The court reasoned that while the jury had been told that intoxication could prevent proof of specific intent, they were not adequately informed how this applied to the evidence presented. The trial judge had failed to draw the jury's attention to the evidence of intoxication, explain its potential effects on intent, or direct them that intoxication might make an inference of intent less readily drawable from the nature of the injuries. The court found that the trial judge's directions were insufficient and did not adequately address the critical question of whether the applicant might have inflicted the fatal wound without intending to kill or cause serious harm due to his intoxication.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The appellant submits that this would have required the trial judge to review the evidence and the relationship of the evidence to intoxication and intent in an understandable way. The appellant contends that while the jury were directed that intoxication could have the effect of preventing proof beyond reasonable doubt of specific intent they were not told how that could be so on the evidence in this case, and that as a result, the trial miscarried. I agree.Evidence of intoxication Counsel for the appellant has pointed to the following evidence that the appellant was intoxicated which, the appellant contends, supports a conclusion that there was a reasonable possibility that the appellant did not intend to kill or cause serious harm to the deceased.(a)In evidence in chief, Police Officer Greg Jarvis agreed that when he spoke to the appellant on the morning of Friday 20 January (after cautioning him) the appellant said words the effect of, “Yeah. Okay. I think we was fighting this morning, but we was still drunk. She was breathing about an hour ago.”[13](b)In evidence in chief, Harrison Green (the deceased’s uncle) gave evidence that the appellant and the deceased visited his house at about 3:00 am on Thursday 19 January. They came for a drink because they knew his sister was bringing grog from Darwin. The group had a big drink and the appellant and the deceased left his house at about 6:00 am.[14] When they left they were both drunk.[15] In cross-examination he agreed that they got very drunk.[16](c)In cross-examination, Roderick Alfie (the partner of the deceased’s sister) said that at about daybreak he saw the deceased in the lounge room of House 4. He said, “They was still drunk.” They were arguing. He saw the deceased but he didn’t see the appellant.[17](d)In examination in chief, Katrina Brown (the deceased’s cousin) said that she got to House 4 at about midnight on Thursday 19 January. The deceased opened the door for her. She got up to go to the bathroom at about 2:00 am or 3:00 am. She saw the appellant in the lounge. He was just probably drunk.[18] In cross-examination she said that she saw both the deceased and the appellant. They both looked drunk. The appellant told her he had been drinking all night.[19](e)In the appellant’s recorded interview with police on 22 January 2018, he told the interviewing police officers that on Thursday he and the deceased went to House 10 Dump Camp. He stayed outside and the deceased went in and grabbed him a drink. They invited her for a drink and she came outside and said, “Oh, wanna come. I’m drinking two moselle.”[20](f)Later in the interview, the appellant told police he and the deceased were throwing rocks around and he said, “Um – like I was moving drunk, she would’a throw hers straight at me and so I just move around and grab the same thing and throw it back at her.[21](g)Later in the interview, the appellant started to tell the police that everything got serious and then he said, “I thought she was all right laying down. And that’s about it. Um – I can’t remember about this.”[22](h)Later still, police asked him why he hit the deceased with a brick and he said, “Ah – drunk. I can’t remember some of it. … Most of it.”[23] He repeated the same comment a little later in the interview. “Ah – I can’t remember some of it.”[24](i)Later, the appellant said he went home drinking with the deceased, in the kitchen and in the lounge. They drank moselle out of a box with silver plastic. One box was half. The other one was full.[25] He said that when they left House 10 Dump Camp he was really drunk. He was not sure how much he had. It wasn’t a little bit. It was too much.[26](j)Later he told police that the deceased was throwing bricks at him two or three times and added, “I was drunk.”[27](k)Later he again said, “Friday, I can’t remember things much.”[28](l)When the interviewing officer described the deceased’s injuries and asked, “Do you know how they happened?” the appellant said, “No, I was drunk.”[29](m)Towards the end of the interview, this exchange occurred:Q: OK. Were you angry at her?A: Ah – drunk, yeah. Sober, nah.Q: So, get angry when you’re drunk?A: Only when I’m drunk, yeah.”

Decision

Reasons for decision

There were a number of grounds of appeal, including that the trial judge had not adequately explained to the jury how intoxication was relevant to the issue of intent. In upholding that ground of appeal, Mildren J said:In the present case there was evidence critical to the appellant’s defence that the appellant was intoxicated and it would have been necessary for the jury to consider whether, in the circumstances, an inference could be drawn from the nature of the wound which caused the deceased’s death, that the prosecution had proven an intent to kill or cause grievous harm, particularly as that wound was to an area of the thigh which I have previously described and required only mild force. In those circumstances, the learned trial judge was required not merely to draw the jury’s attention to the evidence which bore on the extent of the appellant’s intoxication, but to instruct the jury that an inference of an intent to kill or to cause grievous harm might not be as readily drawn from the nature of the injury or injuries inflicted if he were intoxicated as might be the case if he were sober and that the critical question was whether by reason of his intoxication, he might have inflicted the fatal wound without intending to kill or cause grievous harm.Conclusion The trial judge in this case failed to draw the jury’s attention to the evidence of intoxication; did not explain to the jury the ways in which intoxication can affect a person’s intent; did not direct them that if they found that the appellant was intoxicated, an inference of an intent to kill or cause grievous harm might not be so readily drawn from the nature and extent of the injuries as it might be if he were sober; and did not direct their mind to the critical question, namely whether it was reasonably possible that, by reason of his intoxication, the appellant might have inflicted the injuries on the deceased without intending to kill her or cause her serious harm. The closest the trial judge came to such a direction was to say:[T]he substantial defence case seems to be that the Crown it is said by the defence have not excluded a reasonable hypothesis that the accused intended to cause lesser harm. Presumably by lesser harm they meant some lesser injury. This was not sufficient. It was a passing reference to a defence submission; not a direction having the imprimatur of the judge. Further it did not explain how intoxication can affect the formation of the relevant intent, and the remark was not placed in the context of the evidence in the case. Counsel for the respondent submitted that this case was not comparable to Spencer and that the injuries here were of such a nature that an inference of intent might be as readily drawn from the nature of the injuries inflicted if the appellant were intoxicated as it might if he were sober. Spencer was dealing with a stabbing to the leg in which only minimal force would have been required to inflict the fatal wound and intoxication may have caused the appellant in that case to misjudge the force used or the intended site of the wound.

Ratio Decidendi

Legal Principle Established

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