Flash v The Queen

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:

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 relation to the bearing of the appellant’s intoxication on the question whether he formed the specific intent to cause the death of, or serious harm to, the victim by his conduct.[1]
We have had the benefit of reading Kelly J’s reasons, which set out the uncontentious facts, the evidence received at trial and the directions given to the jury on the question of intoxication. We agree that the appeal should be allowed on this principal ground, broadly for the reasons given by her Honour. We wish only to add a number of additional remarks.
First, there is no inflexible rule as to how much of the submissions of the prosecution and defence must be summarised by the trial judge in the course of charging the jury.[2] While the essential elements of the accused’s case must be stated to the jury, that does not necessarily require a point by point repetition of defence counsel’s address to the jury on a particular issue. What is required will depend upon the circumstances of each case[3], as will the extent to which the evidence is summarised or otherwise put to the jury. All that is required is a fair exposition of how the Crown says that each element of the offence is established, and how the defence contends that disputed elements of the Crown case have not been established.[4]
Second, while the direction given by the learned trial judge concerning the legal formulation of intention in this context was both orthodox and complete, the High Court has repeatedly stated that when directing a jury on a question of law that arises in the case, it is “of little use to explain the law to the jury in general terms and then leave it to them to apply the law to the case before them”.[5] The 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.[6] Accordingly, the intention required to commit the offence must be explained to the jury[7] with reference not only to the legal formulation, but also to the manner in which that formulation may have application to the facts as the jury finds them to be.
Third, the decision of this Court in Spencer v The Queen[8] dealt with a wound to an area of the victim’s thigh which required only mild force to inflict a fatal injury. It was in that context, and with express reference to that circumstance, that the Court observed it was necessary to direct the jury that an inference of specific intent may not be so readily drawn because of the accused’s intoxication. While it may be necessary, or at least advisable, to direct a jury that the inference may not be as readily drawn in those circumstances, that particular formulation does not form an essential part of the standard direction concerning intoxication and intention.[9] How readily an inference of relevant intent may be drawn, and whether a direction in those terms is required, will depend on the evidence concerning the nature of the assault, the mechanism of the injury and the accused’s intoxication.
Fourth, the proviso in s 411(2) of the Criminal Code 1983 (NT) permits this Court to dismiss an appeal if it considers that no substantial miscarriage of justice has actually occurred, even if it is of the opinion that a point raised by the appeal might be decided in favour of the appellant. Where the point on appeal involves a misdirection on the law, the proviso may be applied if the appeal court is satisfied on a consideration of the whole of the record that the jury would have come to the same conclusion even there had been no misdirection.[10] However, the proviso will have no application where the irregularity constitutes such a departure from an essential requirement of the trial process that it goes to the root of the proceedings. The direction in relation to the requisite intention, including the bearing of intoxication on the formation of that intention, is of such fundamental importance that a failure to provide adequate directions on the issue will ordinarily cause the trial to miscarry. While there may conceivably be circumstances in which the objective evidence of the appellant’s intention is so strong that it may safely be concluded that any inadequacy in the direction had no significance in determining the verdict that was returned, this is not such a case.
Finally, this appeal and the application for leave to appeal were filed more than seven months outside the time allowed by s 417 of the Criminal Code. Accordingly, the appellant requires an extension of time within which to file the application for leave to appeal. Fault on the part of solicitors and counsel is the only reason given for that delay. The inadequacy of that reason notwithstanding, the public interest in the avoidance of delay and the finality of litigation must be balanced against the interests of the prospective appellant. In striking the balance, an extension of time should not be refused if to do so would leave a miscarriage of justice unremedied.[11]
Accordingly, we would make the following orders:
1.The application for an extension of time and the application for leave to appeal are allowed.
2.The appeal is allowed.
3.The finding of guilt is quashed and a new trial is ordered.
Kelly J:
On 13 July 2018, following a trial by jury, the appellant was found guilty of the murder of his former partner, Sadie Foster, a 33 year old woman with whom the appellant had been in a relationship for many years. They had three children together.
The Crown case against the appellant was that the appellant bashed Ms Foster to death in the bedroom of her house in Village Camp, Tennant Creek, using part of a concrete brick. The bashing included multiple blows to the head with the brick. She had injuries of various kinds and degrees in over 30 locations externally on her body including bruising, abrasions, swellings and lacerations. Some of the wounds penetrated the skin and underlying tissue. She had fractures on both sides of her body and a brain haemorrhage caused by the application of substantial force to her skull from the brick.[12]
The appellant and deceased had been involved in arguments over the day or so before Friday 20 January. Early in the morning on Thursday 19 January, the deceased and the appellant were inside House 4 at Village Camp, Tennant Creek where the deceased lived. The appellant was hitting the deceased and she sought help from her sister.
Later that night, still in House 4, they argued some more. The deceased’s sister could hear the deceased screaming and she could hear hitting sounds. She told them to stop fighting and settle down, but the “fighting” continued.
The next morning, that is the morning of Friday 20 January, the deceased was still in the bedroom in House 4 with the appellant. The sister could hear the deceased moaning and she tried to open the door of the bedroom to check on her but the appellant stopped her. He said the deceased was all right.
The sister tried to check on the deceased a number of times that morning but each time the appellant refused to let her into the room and told her that the deceased was okay. The sister tried to ask the deceased whether she was okay but all she could hear was moaning.
The appellant remained in the bedroom of House 4 with the deceased throughout the day. He came out of the room at one point during the afternoon and the sister noticed blood on his shorts. She asked the appellant whether her sister was okay. The appellant said, “Yes,” went back inside the bedroom, and closed the door.
Later that Friday afternoon the appellant left House 4. He went to his mother’s house and told his mother that his wife was dead. He said she’d been hitting herself on the wall and had scissors trying to stab him.
The appellant’s mother went with the appellant to House 4 and she saw the deceased lying on the bed. There was a black T-shirt tied around the deceased’s head. The appellant said to his mother, “Everything has stopped.”
The mother called 000 and the operator instructed her and the appellant on resuscitation attempts while an ambulance was dispatched.
Paramedics arrived at the house at about 5:39 pm. The appellant was performing CPR on the deceased as per the 000 operator’s instructions. He told paramedics he’d last seen the deceased alive “maybe 2 hours ago.”
The paramedic saw what appeared to be a big rock stained with blood on the shelf in the room. She asked the appellant what had happened to the deceased and he said that she’d been hitting herself in the head with a rock or a brick. (DNA testing later confirmed that the deceased’s blood was on pieces of brick that were taken from the bedroom including the piece of brick that was found on the shelf.)
The deceased was pronounced dead and the appellant was arrested.
The appellant later took part in a recorded interview with police in which he made certain admissions, for example that he had hit the deceased on the head with a rock a number of times. He also told inconsistent stories and the Crown submitted that he was making cunning attempts in the record of interview with the police to minimise his culpability and trying to pin the blame on the deceased saying she had been throwing bricks and hitting her head on the wall.
During the interview, the appellant claimed not to remember much of what occurred and said that he was very drunk. There was also evidence from a number of other people that suggested the appellant was intoxicated to some degree at or near the relevant time.
At the trial, there was no issue that the appellant caused the death of the deceased. The main issue was whether he intended to kill her or cause her serious harm, and the main factor relevant to that issue was the appellant’s degree of intoxication at the time.
The defence case was that the appellant was intoxicated; that, as a consequence, the Crown had failed to prove that he intended to kill or cause serious harm to the deceased; and that the verdict should be not guilty of murder but guilty of manslaughter.
The Crown case was that the jury should infer from the nature and extent of the deceased’s injuries (among other things) that the appellant had intended to kill or cause serious harm to the deceased. The Crown disputed that the appellant was drunk to any significant extent, if he was drunk at all; and contended that, even if he was, the jury could infer that he had the requisite intent and that, if anything, the alcohol fuelled the anger and drove the intent.
The appellant has appealed against his conviction for murder on two grounds.
(a)Ground 1: The trial miscarried due to the imbalanced summing up by the trial judge.
(b)Ground 2: The trial miscarried because the trial judge did not provide adequate directions on the issue of alcohol and its relationship to the issue of intent and the evidence in the case.
Ground 2
It is convenient to deal first with Ground 2. The appellant submits that the directions (and redirection) by the trial judge were not sufficient to draw to the jury’s attention to the fact that the crime alleged was one that required a specific intent and that intoxication may explain why the wounds inflicted by the appellant may not have been accompanied by that specific intent. The appellant submits that this would have required the trial judge to provide an explanation connecting the effect of intoxication with the issue of intent including:
(a)that intoxication can cause a person to strike another person with more force than the person intended;
(b)that intoxication can cause a person not to appreciate the degree or extent of the injury that their actions would likely bring about;
(c)that perception as to the likelihood of causing serious injury can be so blighted by intoxication that the injury cannot be used to infer the presence of a specific intent; and
(d)that intoxication can affect the memory and the ability of a person to respond with particularity to police questioning.
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.”
In his closing address, the prosecutor said:
There is really only one issue in this trial. The issue is, has the Crown proven beyond reasonable doubt that Baden Flash either intended to kill or to cause serious harm to Sadie Foster when he bashed her in the bedroom of that house at Village Camp in Tennant Creek on 20 January last year?
That is the one issue you need to determine in this trial in my respectful submission. Now, I suggest on the evidence you’ve heard, and the evidence has been fairly brief. We’re here on Friday after the Monday commencement. On that evidence I suggest the answer to that issue at question is obvious.
If a male accused slams a piece of brick repeatedly into the side of his female victim’s head, landing blows severe enough to cause the deep lacerations you can see in those photos; lacerations that extend down to the skull and result in a fatal brain haemorrhage, you might think that his intentions are very, very clear.
His intent is to kill and if not to kill, certainly to cause serious harm. That’s really the nub of the Crown case.

Defence counsel referred to the statements made by the appellant in the police interview evidence in some detail in her final address[30] and made the following submissions:
Now as I said to you at the beginning of this trial, the principal issue for your consideration is the state of mind of the accused man Mr Baden Flash at the relevant time and whether the Crown can prove beyond reasonable doubt that at that time he had a specific intent either to kill or to cause serious harm to Sadie Foster.[31]
…
And as hard as that may be and as confronting as this subject matter has been you have to consider what was in Mr Flash’s mind at the specific time. You have to consider ladies and gentlemen, did he have the specific intent. He’s not to be held to some abstract standard of what the reasonable man might do or to any other standard.
…
Now it’s really important that you remember that in a criminal trial, before you draw any inference as to the element of the offence or as to the guilt that is adverse to Mr Flash you must ensure that the prosecution has excluded all other reasonable hypothesis consistent with innocence beyond reasonable doubt.
So for example in this trial, the Crown asks you to draw the inference that the severity of the injury inflicted and the force used should lead you to conclude that Mr Flash intended to cause serious harm or to kill Ms Foster. Now the defence submits that in light of what Mr Flash says to you in his interview as to what was in his mind at the relevant time and the evidence of intoxication the prosecution has not excluded the reasonable possibility that if he had an intention the intention may well have been to do something else. Something less than to cause serious harm. Something less than to cause death. Such as an intention to just cause a lesser injury but that maybe in his intoxicated state, whatever the degree, he misjudged, he miscalculated and death was unintentionally caused.
…
Aligned to this is the absence of any words uttered by Mr Flash indicating an intention to cause death or serious harm.
Importantly in this trial, there was credible evidence that Mr Flash was grossly intoxicated. Now this evidence doesn’t just come from what the Crown has described as self-serving statements of the accused. Certainly he does repeat over and over again in various times of the record of interview that he was drunk, very drunk.
But there was also independent evidence in this trial before you, of his intoxication and that has come from the witnesses of Katrina Brown and Roderick Alfie. They both say they saw Baden and Sadie drunk at House 4 in the hours – early hours of Friday morning. …
In his summing up, the trial judge dealt with the issue of intent and intoxication in this way.
Another matter that I need to talk to you about is this issue of intoxication. A specific intent is an element of the offence. The prosecution must prove beyond reasonable doubt that the accused has formed the necessary intent. When there is an intention to cause a specific result, which is an element of the offence, you can consider intoxication for the purpose of deciding whether such intention existed.
If because of the evidence as to the effect of the intoxication, you are not satisfied beyond reasonable doubt that the accused had the requisite intent, you must acquit. On the other hand, the evidence the accused was intoxicated is not a defence. As it has been said by counsel, a person can still form the necessary intent, notwithstanding he is intoxicated.
The prosecutor put that in fact the drinking fuelled the anger.
Later, in going through the aide memoir, his Honour said:
So, really this case comes down to, as has been fairly put by both counsel in what were I thought careful and well-presented submissions, that the issue is whether or not the accused had the requisite intent to cause death or serious harm. So, the defence argue for a manslaughter conviction.
…
But the reality in this case, it really comes down to the issue of 2.24[32] in the murder charge. At the time Baden Flash engaged in the conduct, did he intend to cause the death or intend to cause serious harm. And bear in mind what the prosecutor said in his opening address, which is quite right, that some of you might conclude that he intended to cause death, others might conclude that he intended to cause serious harm. But they’re an “or” not an “and/or”, so that would still mean, if that was your conclusion, then he would be guilty of murder.
If, on the other hand, you are unable to conclude that, well then, another verdict would be possible.
The trial judge summarised the Crown case in some detail, including the following remarks in relation to intoxication and intent:
It was put that the evidence is not clear about his state of intoxication ……. but the issue as put by the Crown is not whether – it was said not whether the man was drunk, the issue [is] whether he intended to cause serious harm or death. It was put that the accused had a selective memory during the record of interview. He remembered parts that supported his case and cannot remember when it suited him.
So in that way the Crown sought to use the record of interview to suit the Crown case. It was put that the fact that the accused used a shirt to try and stem the blood showed a presence of mind that would tend to negative the claim he was drunk. It was put that the fact that he is able to describe the deceased’s state – her being after the assault also negatives intent (sic) and in summary it was put by the Crown that the intoxication fuelled the anger but he was not intoxicated enough to stop him trying to deflect blame to others and his concession that he got angry when drunk in fact supports the Crown case.
The defence submissions were dealt with quite briefly. The only reference in the summing up to the defence case on intoxication is in the following passage.
And the Crown then argued that the extent and variety of injuries, what they described as the catalogue of injuries would tend to support its contention there was intent. They argued that the multiplicity of injuries support the case there was a prolonged bashing. On the other hand, the defence fairly concede that death was caused by the accused and that the principal issue was did the accused have intent and the 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.
It was put by counsel for the defence that both Brown and Alfie say the accused and the deceased were drunk on the early hours of Friday morning. I just make this – I mentioned this before, there is some doubt about that because Mr Alfie did say at page 125 of the transcript, “I want to ask you about the Thursday morning” he said “Yeah” and then later on this next page on page 126 he talked about the following day, the Friday, “Did you hear anything in the morning?” He said “Yes, they were arguing again the morning.” So there is – there may be some doubt about that but the defence is entitled to put that to you.
On being requested to do so by counsel, the trial judge called the jury back and gave them the following re-direction:
There are two matters that I wish to clarify. One is in relation to this issue of intoxication. In some circumstances an intoxicated person may act without forming any particularly [sic] intention at all. On the other hand, a person may be considerably affected by alcohol and/or drugs and yet still commit an act with a specific purpose in mind. The fact that the person may have no recollection of the incident afterwards does not necessarily mean that he or she was not acting with a specific intention at the time of the incident.
So having considered the evidence and the arguments on the issue, the question for you is whether having regard to the evidence of Mr Flash’s intoxication you find the Crown has proved beyond reasonable doubt that he acted with the intention to kill or cause serious harm and keep in mind that there is no obligation on him – on Flash to prove either that he could not or did not act with that intention. It is essentially – it is an essential fact that the Crown must prove that before you can find him guilty of the offence charged.
And if the Crown fails to satisfy you for whatever reason that he did not – that he did intend to kill or cause serious harm you would find him not guilty of the first count, if you came to that decision then you would consider the alternative charge of manslaughter.
The other matter that I wanted to raise with you was that in relation to Mr Alfie’s evidence, it was pointed out to me and I should have referred this to you. To Alfie talking about the Friday morning said and he is talking about Kwementyaye and the accused.
“And did she look drunk to you when you saw her? Can you remember or are you not sure?” And he said “Yeah they were still drunk.” So he was talking there about the Friday morning at that time of his evidence.
Principles
It is the duty of a trial judge in summing up to the jury to give directions as to the relevant law in the context of the factual considerations that arise in the particular case.[33] It is not sufficient to set out the legal principles in isolation, followed by a summary of the evidence. The judge should refer to the facts that the jury may find on the evidence with an indication of the consequences that the law requires.[34]
Spencer was a similar case to the present one in some respects. The appellant in Spencer was found guilty by a jury of murdering his former de facto wife by stabbing her in the thigh, severing the femoral artery and femoral vein. She had 17 other stab wounds on her body. (She also had extensive burns to her chest and neck which were not consistent with her having rolled into a fire but were consistent with her shirt having been set on fire when she was still alive.) The Crown case was that the appellant had inflicted all of the stab wounds and that the jury could infer from the nature and severity of the wounds that the appellant had intended to kill the victim or, at the very least, to cause her serious harm.
There was evidence that both the victim and the appellant had been drinking and were affected by alcohol. When interviewed by police the appellant admitted stabbing the victim but said he couldn’t remember how many times. He was drunk. (He also said that she had stabbed herself.) The police officer who arrested the appellant at the scene gave evidence that the appellant may have been slurring some of his words but was not “overly intoxicated”. However, a number of Aboriginal witnesses described him as “drunk”, “getting drunk”, “sparked up” and “full drunk”.
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.
While there is some force to this submission, and it may well be that a jury might more readily draw the inference of intent from repeated blows to the head delivered by an intoxicated person than from a stab wound which required only minimal force inflicted by an intoxicated person, it is a matter of degree.
I agree with the appellant that, in the context of this case, the summing up should have:
(a)referred to the evidence of intoxication (and the evidence which the Crown submitted pointed to relative sobriety);
(b)reminded them that as judges of the facts, it was up to them to determine, if they could, how intoxicated the appellant was at the time he inflicted the fatal injuries; and
(c)explained that intoxication can cause a person to strike another person with more force than the person intended; or cause a person not to appreciate the degree or extent of the injury that their actions would likely bring about.
In this particular case I think it would also have been desirable, as counsel for the appellant contended, to direct the jury that although they are entitled to draw an inference of intent from the nature of the wounds inflicted and the other matters relied on by the Crown[35], if they found that the accused was highly intoxicated, they might not so readily draw such an inference as they might if the accused was relatively sober (reminding them, as the trial judge did, that there is no onus on the accused to prove anything). However, I would not necessarily have allowed the appeal on this basis alone, were it not for the other deficiencies in the trial judge’s direction on intoxication. There is no general rule that such a direction must be given in every case in which the defence contends that the accused lacked the intent to cause death or serious harm because of intoxication. Whether or not such a direction needs to be given will depend on the facts and circumstances of each case.
I would allow the appeal on Ground 2. For that reason I find it unnecessary to consider the merits of Ground 1.

___________________________________

[1] This Court has recently delivered judgment in Morton v The Queen [2020] NTCCA 2, which also concerns directions to the jury in relation to intoxication and intent. However, the relevant question in that case was whether the trial judge had erred by inviting the jury to determine the applicant’s level of intoxication as a first stage in determining whether the Crown had excluded the reasonable possibility that the applicant had not formed the requisite intent.

[2] De Gruchy v The Queen (2002) 211 CLR 85 at [44]; Doggett v The Queen (2001) 208 CLR 343 at [115]; KRM v The Queen (2001) 206 CLR 221 at [114].

[3] See, for example, Mulkatana v The Queen (2010) 28 NTLR 31 at [9]-[13].

[4] R v Anderson [1996] 2 VR 663.

[5] Alford v Magee (1952) 85 CLR 437 at 466.

[6] The principle expressed in Alford v Magee (supra) has been reaffirmed in Holland v The Queen (1993) 67 ALJR 946 at 951; Melbourne v The Queen (1999) 198 CLR 1 at [143]; RPS v The Queen (2000) 199 CLR 620 at [41]; Azzopardi v The Queen (2001) 205 CLR 50 at 69 ; R v Chai (2002) 76 ALJR 628 at 632; Murray v The Queen (2002) 211 CLR 193 at [37]; De Gruchy v The Queen (2002) 211 CLR 85 at [44]; Doggett v The Queen (2001) 208 CLR 343 at [115]; KRM v The Queen (2001) 206 CLR 221 at [114].

[7] R v O'Connor (1980) 146 CLR 64 at 80; Parker v The Queen (1963) 111 CLR 610.

[8] Spencer v The Queen [2003] NTCCA 1; 172 FLR 471.

[9] That formulation is also not part of the suggested directions which appear in the Criminal Trial Bench Books in other Australian jurisdictions.

[10] Wilde v The Queen (1988) 164 CLR 365; Weiss v The Queen (2005) 224 CLR 300.

[11]Green v The Queen (1989) 95 FLR 301; subsequently adopted by in Stamp v The Queen [2012] NTCCA 15 at [12].

[12]The medical evidence was that, in medical terms, at least moderate force would have been required to inflict wounds of that nature. It was also noted that Ms Foster had a thicker than usual skull.

[13] Transcript 10.07.18 p 64; AB72

[14] Transcript 11.07.18 p 115; AB 123

[15] Transcript 11.07.18 p 116, AB 124

[16] Transcript 11.07.18 p 121; AB 129

[17] Transcript 11.07.18 p 135; AB 143

[18] Transcript 11.07.18 p 149; AB 157

[19] Transcript 11.07.18 p 157; AB 165

[20]Transcript of Recorded Interview p 16 of 58; AB 312

[21] Transcript of Recorded Interview p 18 of 58; AB 314

[22]Transcript of Recorded Interview p 20 of 58; AB 316

[23] Transcript of Recorded Interview p 23 of 58; AB 319

[24] Transcript of Recorded Interview p 24 of 58; AB 320

[25] Transcript of Recorded Interview p 28 of 58; AB 324

[26] Transcript of Recorded Interview p 29 of 58; AB 325

[27]Transcript of Recorded Interview p 30 of 58; AB 326

[28] Transcript of Recorded Interview p 31 of 58; AB 327

[29]Transcript of Recorded Interview p 45 of 58; AB 341

[30] Transcript 13.07.18 p 278

[31] Transcript 13.07.18 p 285

[32] This was a reference to a paragraph in the Aide Memoir.

[33] Spencer v The Queen [2003] NTCCA 1; 172 FLR 471 (“Spencer”) at [21] per Mildren J

[34]R v Mogg (2000) 112 A Crim R 417 at 430 per Thomas JA, applied in Spencer at [21]

[35]In addition to the nature of the weapon and the wounds inflicted, the Crown relied (inter alia) on the evidence that suggested the appellant had sufficient presence of mind to keep other people away from the room in which Ms Foster lay dying in order to protect himself from discovery, and to invent self-serving stories that deflected blame from himself when he first spoke to his mother and the paramedic.

[2020] NTCCA 5

19 June 2020

Key Legal Topics

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Criminal Law

Evidence

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Appeal

Charge

Intention

Sentencing

Statutory Construction