Graham v The Queen

Case [2016] HCA 27

HIGH COURT OF AUSTRALIA

FRENCH CJ,
KIEFEL, BELL, NETTLE AND GORDON JJ

MARK JAMES GRAHAM  APPELLANT

AND

THE QUEEN  RESPONDENT

Graham v The Queen

[2016] HCA 27

20 July 2016

B14/2016

ORDER

Appeal dismissed.

On appeal from the Supreme Court of Queensland

Representation

P J Davis QC with J R Jones for the appellant (instructed by Grigor Lawyers)

P J Callaghan SC with V A Loury for the respondent (instructed by Director of Public Prosecution (Qld))

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Graham v The Queen

Criminal law – Appeal – Directions to jury – Where appellant convicted of attempted murder after firing shots during confrontation with man with knife – Where appellant relied on defence of self-defence under ss 271(1), 271(2) and 272(1) of Criminal Code (Q) – Where prosecutor suggested in closing address existence of "consensual confrontation" negated self-defence – Where trial judge did not direct jury that no evidence of consent – Where no redirection sought by defence counsel on this issue – Whether trial judge failed to properly direct jury as to self-defence – Whether trial judge erred in failing to direct jury as to defence of mistake under s 24 of Criminal Code.

Words and phrases – "assault", "consensual confrontation", "consent to assault", "mistaken belief", "self-defence".

Criminal Code (Q), ss 24, 245, 271, 272.

FRENCH CJ, KIEFEL AND BELL JJ.

Introduction

  1. The appellant was convicted after trial before a judge and jury in the Supreme Court of Queensland of attempted murder and unlawful wounding with intent to maim. The indictment expressed the offences as contrary to ss 306(a) and 317(b) and (e) of the Criminal Code (Q) respectively[1].  The convictions arose out of an incident at the Robina Town Centre at the Gold Coast in Queensland on 28 April 2012. 

    [1]The reference to s 317(b) would appear to be incorrect and should have been a reference to s 317(a).

  2. The incident leading to the charges involved a confrontation between the appellant and one Jacques Teamo ("Teamo").  In the course of the confrontation, Teamo produced a knife and the appellant produced a hand gun and fired two shots.  One of the bullets struck Teamo in the arm, albeit without inflicting a life threatening injury.  The other struck and injured an innocent bystander, a shopper in the complex, Kathy Devitt. 

  3. The appellant was sentenced to 12 years and three months imprisonment for the offence of attempted murder, seven years for the offence of unlawful wounding with intent to maim and one year and six months for the offence of unlawful possession of a weapon, to which he had previously pleaded guilty.  All sentences were to be served concurrently.

  4. The appellant appealed to the Court of Appeal of the Supreme Court of Queensland against his convictions and applied to that Court for leave to appeal against the sentences. The application for leave to appeal against sentence was refused. His appeal…

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AGLC
Graham v The Queen [2016] HCA 27
Case
[2016] HCA 27
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal from the appellant, who had been convicted of attempted murder after firing shots during a confrontation with another man, Teamo, who was armed with a knife. The appellant sought to rely on the defence of self-defence under the *Criminal Code* (Qld). The appeal raised questions concerning the adequacy of the trial judge's directions to the jury regarding self-defence, particularly in light of a prosecutor's suggestion that the confrontation was "consensual," and whether the defence of honest and reasonable mistake under s 24 of the *Criminal Code* should have been left to the jury.

The legal issues before the High Court were whether the trial judge erred in failing to adequately direct the jury on the defence of self-defence, specifically in relation to the prosecutor's submission that a "consensual confrontation" negated the element of assault required for self-defence, and whether the trial judge should have directed the jury on the defence of honest and reasonable but mistaken belief as to fact. The appellant argued that the trial judge should have clarified that consent to a confrontation did not equate to consent to an assault, and that if the appellant honestly and reasonably mistook Teamo's actions for an assault, the jury should have been directed to proceed on that basis.

The High Court dismissed the appeal, agreeing with the reasoning of the Court of Appeal of Queensland. The Court held that the prosecutor's submissions, while referring to a "consensual confrontation," were directed at alternative findings of fact regarding the sequence of events and the nature of the interaction. The Court found that the prosecutor correctly identified lack of consent as an essential element of assault, and that the trial judge had correctly directed the jury on the meaning of assault and the relevant factual inquiries. Furthermore, the Court noted that no direction under s 24 of the *Criminal Code* was sought at trial, and there was no evidentiary basis to suggest that the appellant had honestly and reasonably mistaken Teamo's conduct for an assault if it was not one. The Court concluded that the trial judge's directions were adequate and that there was no error in failing to leave the defence of mistake to the jury.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

The appellant appealed to the Court of Appeal of the Supreme Court of Queensland against his convictions and applied to that Court for leave to appeal against the sentences. The application for leave to appeal against sentence was refused. His appeal against conviction was based upon allegedly inadequate directions by the trial judge as to his defence of self-defence. In particular, he complained of the trial judge's direction in relation to a suggestion by the prosecutor that Teamo's alleged production of the knife prior to the appellant shooting Teamo was part of a "consensual confrontation" and therefore not an assault. He also argued that the trial judge failed to leave to the jury the defence of honest and reasonable but mistaken belief as to fact under s 24 of the Criminal Code based upon a proposition that the appellant may have mistaken Teamo's conduct for an assault by threatened application of force and acted accordingly. The appellant was granted special leave to appeal in this Court on those questions on 11 March 2016. For the reasons that follow the appeal should be dismissed.Evidence as to relevant facts The evidence relevant to the grounds of appeal was referred to in the judgment of Atkinson J in the Court of Appeal, with whom Morrison JA and Applegarth J agreed. It may be summarised briefly. On 28 April 2012 the appellant went shopping at the Robina Town Centre with members of his family. Teamo was at the shopping centre at the same time with his two young sons. He and the appellant were members of rival motorcycle clubs. Both were armed. The appellant was carrying a loaded hand gun in a pouch bag on a belt around his waist. Teamo was carrying a flick knife in a shoulder bag. Teamo entered a Sony store with his younger son. His older son was pushing a shopping trolley behind him. The appellant walked past, saw Teamo, stopped, paced up and down outside the store entrance, felt for something in his pouch, then entered the store. He walked around staring at Teamo. Teamo said "What are you looking at?" The appellant then left the store. Teamo said to his older son that he was going to "stab that guy". What he said was not heard by the appellant. Teamo then walked out of the store. He appeared to touch something in his shoulder bag, then followed the direction taken by the appellant. He stopped and gestured towards the appellant and said "What are you looking at? You got a problem?" Both were described by witnesses as puffing their chests and shouting at each other. The appellant walked towards Teamo. As the appellant reached into his bag he dropped a ten dollar note, which a passer-by picked up and gave to him. There was an issue at trial as to who took his weapon out first. At some point Teamo took his knife out and extended the blade, stopped and started backing away. The appellant held his gun in his right hand moving towards Teamo. He pointed it at him and shot him once at close range but not seriously injuring him. Another shot missed Teamo and struck Ms Devitt. Bullet fragments lodged in her right hip. It is not clear which shot hit which person. After firing, the appellant walked away holding his gun in his hand. Teamo returned to the entrance of the Sony store where his sons were waiting and left the store. The statutory provisions

Evidence

Evidence Before The Court

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Decision

Reasons for decision

FRENCH CJ, KIEFEL AND BELL JJ NETTLE J GORDON J
The appellant's complaint in the Court of Appeal was that the prosecutor's submission referring to a "consensual confrontation" was "wrong and misleading" and that the trial judge had erred in failing to deal properly with that submission. The trial judge, it was said, should have identified the relevant assault as the production of the flick knife. He should also have directed the jury on the defence of honest and reasonable but mistaken belief about a fact pursuant to s 24 of the Criminal Code. He should have directed them that if the production of the flick knife was not a threatened application of force but the appellant honestly and reasonably mistook it to be so, then the jury had to proceed on the basis that there was an assault. The trial judge, it was said, should then have directed the jury that there would be no assault for the purposes of self-defence only if the appellant consented to the particular assault. There was no evidence of any such consent.The decision of the Court of Appeal The Court of Appeal dealt shortly with the appellant's arguments. The steps in the Court of Appeal's reasoning were as follows:1.The prosecutor's submissions directed the jury's attention to two alternative findings of fact on the question of whether there was an unlawful assault. The first was that Teamo's knife was drawn before the appellant drew his gun. The second was that the appellant's gun was drawn before Teamo produced his knife.2.If the knife was found to have been drawn before the gun, the question that arose was whether the mutual threats were part of a consensual confrontation.3.If the gun was drawn before the knife, the question was whether that was provocation for Teamo to pull out his knife.4.The Crown prosecutor correctly pointed out that lack of consent was an essential element of the offence of assault. There was no further need for the issue to be addressed by the trial judge and neither counsel asked him to do so whether by way of emphasis or correction.5.The trial judge directed the jury on the correct legal test as to the meaning of assault and directed them correctly on the relevance of whether it was the gun or the knife that was drawn first, inviting the jurors to make up their own minds about that.6.No direction in relation to s 24 of the Criminal Code was sought at the trial. There was no evidentiary basis for suggesting that if the production of the knife were not a threatened application of force, the appellant might nevertheless have honestly and reasonably believed it to be so.The contentions The appellant canvassed before this Court essentially the same arguments as were put to the Court of Appeal. The effect of the submissions by counsel for the prosecution at trial had been that there was a consent by the appellant to a "confrontation" comprising a series of events which led up to the shooting. However, the question of consent had to be related to the "assault", which was the threatened application of force constituted by the production of the flick knife. There was no evidence to suggest that the appellant had consented to being threatened with the flick knife or being cut or stabbed. There was no evidence to suggest that the appellant knew that Teamo had a flick knife before it was produced immediately before the shooting.

Ratio Decidendi

Legal Principle Established

Established by: FRENCH CJ, KIEFEL AND BELL JJ, NETTLE J, GORDON J

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