Hothnyang v The Queen
[2014] VSCA 64
•11 April 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2013 0063 | |
| BORONIKA HOTHNYANG | Applicant |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | NETTLE, NEAVE JJA and SIFRIS AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 3 April 2014 | |
DATE OF JUDGMENT: | 11 April 2014 | |
MEDIUM NEUTRAL CITATION: | [2014] VSCA 64 | |
JUDGMENT APPEALED FROM: | [2013] VSC 61 (King J) | |
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CRIMINAL LAW – Conviction – Murder – Evidence – Relevance – Admissibility – Connection with crime – Disposition of applicant – Drunken orgy extending over two days – Whether evidence of applicant’s drunken aggressive behaviour towards persons other than deceased on morning of second day of orgy, some hours before killing of deceased, admissible as evidence of part of one transaction of which killing formed part – O’Leary v The King (1946) 73 CLR 566, applied – Evidence Act 2008, ss 135, 137.
JURY – Discharge – Whether judge erred in refusing to discharge jury after inadmissible evidence given in error – Whether evidence productive of substantial miscarriage of justice – Crofts v The Queen (1996) 186 CLR 427, applied; Baini v The Queen (2012) 246 CLR 469; Baini v The Queen (No 2) [2013] VSCA 157, referred to.
VERDICT – Whether unreasonable – Whether, in view of lies told by principal Crown witness and inconsistencies between evidence of witnesses, jury bound to have reasonable doubt as to identity of killer or her capacity to form murderous intent – Libke v The Queen (2007) 230 CLR 559, applied; The Queen v O’Connor (1980) 146 CLR 64, referred to; Cutter v R (1997) 143 ALR 498, distinguished.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr David Grace QC with Mr D J Hancock | David Grace |
| For the Respondent | Mr T Gyorffy SC | Mr Craig Hyland, Solicitor for Public Prosecutions |
NETTLE JA
NEAVE JA
SIFRIS AJA:
Following a trial in the Criminal Division, the applicant was convicted of the murder of her friend, William John Awu, at Dandenong on 15 July 2011, and sentenced therefor to 14 years’ imprisonment with a non-parole period of 10 years and six months. She now seeks leave to appeal against conviction
The applicant was born on 15 September 1987 in South Sudan and was 24 years old at the time of the killing. She and the deceased were part of a larger ‘social group’ who gathered together on a regular basis to drink. One of their regular drinking places was a skateboard park in Dandenong, approximately 150 metres from the applicant’s home. She lived in a public housing flat which was managed by the Department of Human Services.
On Thursday 14 July 2011, the applicant, the deceased and a group of other males went to the skateboard park during the day and consumed large amounts of alcohol. At 2.45 pm police arrived and arrested the deceased for being drunk in a public place. The police took him to the Dandenong Police Station and lodged him in the cells at 3.05 pm. The applicant and the other members of the group returned to the applicant’s home where they continued drinking. At 8.31 pm the deceased was released from custody and returned to the applicant’s home. He slept the night there in the sitting room.
The next morning at approximately 8.30 am the applicant gave $20 to two members of the group, who had also stayed the night, to go to Liquorland approximately 150 metres from the applicant’s home and purchase some more alcohol. They did so and returned with a wine cask and the drinking continued.
After some time, the applicant and one of the group, Akutmal Ajak, went to the Department of Human Services offices in Dandenong. The applicant approached the counter and asked that the door of her flat be repaired. Sheena Farr, who was the Housing Service Officer who attended the applicant, gave evidence that the applicant was intoxicated and very loud and aggressive. Ms Farr said that she directed the applicant to the ‘courtesy phone’ to call the maintenance section. Ms Farr then heard yelling and saw the applicant banging the handset on the base of the telephone. After that, Akutmal Ajak spoke to Ms Farr about wanting a house and he also became aggressive.
At that point, Rachel Royle, a Senior Housing Services Officer, asked the applicant and Ajak to leave, and they did so. Ms Royle gave evidence that she, too, heard the applicant yelling on the telephone and that the applicant appeared uneven on her feet.
After leaving the Housing Services offices, the applicant and Ajak went back to the applicant’s home. Those present there then included Peter Guk, John Oleyo, Michael Carlo, Viviano Tombi, Peter Cooke and Haitham Lohide. Ajak gave evidence at trial that everyone was drinking wine. He said that after a while the deceased drew an unflattering picture of the applicant and the deceased and Lohide teased her about being fat. Later, the deceased drew a second unflattering picture of the applicant, by which time the applicant had become loud and upset and told him to stop drawing. The applicant also said that, if the drawings continued, she was going to kill three people that night.
According to Ajak, things then quietened down for a time but, about 30 minutes after the last drawing incident, the applicant attempted to choke the deceased and told him to stop drinking. At that point, Ajak left the flat with John Oleyo to buy more wine.
Michael Carlo gave evidence that, when he returned to the applicant’s flat at around 3 o’clock on the afternoon of 15 July 2011, the applicant and the deceased were both intoxicated but otherwise things seemed to be ‘alright’. He said that for a time everyone was sitting around drinking. After a while, however, the applicant got up and appeared annoyed with the deceased. She said ‘catch William’ and strangled him around the neck. The others present intervened and separated her from the deceased. Shortly after that, Oleyo and Ajak left to buy more drink. Then the applicant went into the kitchen and came out with her hand behind her back and, without saying anything further, stabbed the deceased as he sat in a chair asleep.
Peter Guk gave evidence that, after drinking with the group on 14 July 2011, he stayed at the applicant’s home overnight and then left for an appointment at Centrelink at 10.45 am the next morning. When he later returned to the flat at around 11.30 am, everyone was drinking. He said that, at some stage during the morning, Lohide gave the deceased a pen and paper and told him to draw the applicant like a barrel, big and fat. The deceased did so and the applicant was unhappy with the drawing and tore it up. She told the deceased and Lohide that, if they did it again, she would be bad to them. Normality resumed but, later during the afternoon, the applicant began to choke the deceased by putting her hands on his neck. The others stopped her and she became quiet. Later still, two of the group left the flat, leaving Guk, Carlo, Tombi, Lohide, the applicant and the deceased as the only persons present. Guk said that, at that point, he went to sleep on the couch until woken by Carlo who told him that something had happened.
Constable Jarvis gave evidence of attending the applicant’s flat in response to a 000 call. She saw the deceased slumped over on the floor. She went to the bedroom, woke up the applicant who, she said, was at first very drowsy, and handcuffed her. Constable Jarvis deposed that the applicant then became loud, obnoxious, yelling, aggressive and uncooperative. She demanded to be allowed to go to the toilet and, when told she could not because it was a crime scene, she said that she would urinate on the constable’s leg if she did not let her go.
Constable Van Der Heyden also gave evidence of attending the applicant’s flat. Upon entry, he saw someone on the floor and he proceeded to clear the premises. He went to one of the bedrooms, saw a lump under the doona and ripped the doona off the bed. He shook the applicant by the foot and when she asked ‘What are you doing in my house?’ he told her to get up. Constable Van Der Heyden next woke Lohide who was in bed with the applicant. Both the applicant and Lohide were fully dressed. Constable Van Der Heyden said that the applicant behaved erratically, was yelling, and was aggressive and uncooperative and her demeanour was angry. She tried to head-butt and kick him.
The Crown case
The Crown case at trial was that the applicant had been aggressive and upset and prone to flare-ups of temper throughout the day. Sometime before she stabbed the deceased, she threatened to kill him. No one else in the flat exhibited any such animosity towards the deceased. The applicant then stabbed the deceased in the chest while he slept or was unconscious in a chair, and the blade pierced his heart and killed him. Although the applicant was intoxicated at the time of the stabbing, she was aware of what she was doing and she stabbed the deceased with intent to kill him or at least inflict really serious injury.
Defence case
The defence case was that the jury could not be satisfied beyond reasonable doubt that the applicant was the killer or, alternatively, that she stabbed with intent to kill or inflict really serious injury.
Ground 1: Evidence of aggressive and obnoxious behaviour
Under Ground 1 of the application, it is contended that the judge erred by admitting evidence of the applicant’s misbehaviour at the Department of Human Services offices during the morning preceding the killing, and by admitting evidence of the applicant’s angry, aggressive and uncooperative attitude towards police when arrested at her home after the killing. The argument is that the evidence was either irrelevant or ought to have been excluded under s 135 or 137 of the Evidence Act 2008.
Counsel for the applicant submitted that the evidence of the applicant’s misbehaviour at the Department of Human Services was irrelevant because it was of conduct which occurred at a different location to the stabbing, and some hours before it; was directed at housing officers rather than the deceased; and reflected the applicant’s frustration over the Department’s failure to repair her door and then fobbing her off to a ‘courtesy phone’. It was, therefore, insufficiently proximate to the killing to be at all probative of her state of mind at the time of the killing or to be considered as part of any sufficiently connected series of events.[1] Counsel also put that it impermissibly suggested a tendency or propensity on the part of the applicant to engage in violent behaviour and, although the judge directed the jury not to engage in tendency reasoning of that kind, there was a real likelihood that they may have done so to the applicant’s prejudice.
[1]Cf. O’Leary v The King (1946) 73 CLR 566, 577–8 (Dixon J).
The argument in relation to the applicant’s attitude towards police at the time of her arrest was put on a similar basis. Counsel submitted that, because that conduct occurred after the commission of the offence and was directed towards the police as opposed to the deceased, it was insufficiently connected to the killing to be probative of the applicant’s state of mind at the time of the killing. Additionally, although the applicant had real reason to dislike the police, because of her previous dealings with them in relation to other offending, she could not adduce evidence of that fact without causing herself still further prejudice. Thus, in counsel’s submission, this was evidence which was either irrelevant to a matter in issue or, alternatively, of such slight probative value and so unfairly prejudicial to the applicant that it should have been excluded under s 135 or 137.
Counsel for the Crown submitted to the contrary that the evidence of the applicant’s misbehaviour at the Department of Human Services was evidence of part of an escalating state of intoxication and anger which culminated in the killing. Similarly, the applicant’s attitude towards the police when the applicant was arrested was so proximate to the killing as logically to bespeak her belligerent state of mind at the time of the killing and, as such, went to the likelihood that she would have stabbed the deceased with murderous intent. It was also said that, if the applicant’s vile disposition when arrested were in truth the result of other factors, there was ample scope for the defence to explain how and why that was so without condescending to the detail of prior convictions.
In our view, the evidence of the applicant’s misbehaviour at the Department of Human Services was relevant and admissible. In effect, it was probative of a significant part of a single drunken orgy which began on 14 July 2011 and continued, albeit after some sleep, throughout 15 July 2011 up to the point of the killing. It disclosed that, under the influence of the wine which the applicant had consumed the previous day and the wine which she consumed on 15 July 2011 before going to the Department’s offices, she reached a significant level of intoxication and aggression by late in the morning of 15 July 2011. When coupled with the evidence of what occurred after she returned home from the Department’s offices, it revealed a continuum of drunken belligerence directed at anyone who caused her what she perceived to be offence, beginning with her behaviour towards the housing officers at the Department’s offices and then, under the exacerbating effects of further alcohol consumption leading, first, to her threat to kill the deceased if he drew any more pictures of her; later, to her attempt to choke the deceased; and, finally, to her fetching a knife from the kitchen and stabbing the deceased to death as he sat unconscious in a chair.
As we see it, each manifestation of anger and aggression in the course of that sequence of events was capable of being seen as part of one transaction which culminated in the killing. Hence, to adopt and adapt the words of Dixon J in O’Leary v The King,[2] without the evidence of what occurred at each significant stage of that sequence of events, including what occurred at the Department’s offices, the transaction of which the murder formed an integral part could not be truly understood and, isolated from it, could only be presented as an unreal and not very intelligible event.
[2]Ibid.
Possibly, there is more to be said against the admission of the evidence of the applicant’s behaviour when arrested. It may be that her belligerence towards police at the time of her arrest owed more to her attitude towards police generally than to her state of mind at the time of the killing. But inasmuch as the arrest was effected only a short time after the killing, we consider that there was sufficient proximity between the two events to found an inference that the latter was reflective of the applicant’s state of mind at the time of the former. As such, it was important evidence for the Crown in that it demonstrated that, only a short time after the killing, the applicant appeared capable of forming malicious intent despite the large amount of alcohol which she had consumed. It is also difficult to conceive that the admission of that post-offence conduct evidence would have caused the applicant any significant unfair prejudice. Compared to the eye-witness evidence of her behaviour in the lead up to the killing, and of the evidence of the stabbing itself, we think it would have been negligible.
In the result, we agree with the judge that the probative value of the evidence sufficiently outweighed such prejudicial effect as it might have had to warrant the admission of the evidence. Consequently, we reject Ground 1.
Ground 2: Evidence of head butting of police
Prior to the commencement of the trial, the judge ruled that the Crown might lead evidence that the applicant had struggled with police when arrested but that the Crown were not to lead evidence that the applicant attempted to head-butt and kick Constable Van Der Heyden. In the course of evidence in chief, however, Constable Van Der Heyden volunteered that the applicant had attempted to head-butt and kick him. That happened as follows:
PROSECUTOR: The female, how was she behaving? --- Ah, I would say erratic, that’s how I’d describe it.
PROSECUTOR: What was she doing for you to draw that conclusion? --- Just yelling. Yelling for no reason, uncooperative, not willing to listen to things I was trying to say or any of us were trying to say. She was – at one stage, she was handcuffed and she was trying to head butt me, she was trying to kick
me, just for no reason. I [come] to the conclusion that she just didn’t want to be involved with anything.
PROSECUTOR: She was arguing with you or struggling with you? --- Yes.
PROSECUTOR: Would be the best way to put i? --- Yes.
PROSECUTOR: Her demeanour generally, how would you describe it? --- Ah, angry.
Shortly after that occurred, defence counsel rose to object in the absence of the jury that the prosecutor had thereby led evidence of the attempted head-butting and kicking which the judge had earlier ruled should not be led. He submitted that the judge should discharge the jury. The judge, however, declined to do so, saying that she did not consider that any prejudice entailed in the admission of the evidence of attempted head butting and kicking was sufficient to warrant that course.
Counsel for the applicant now contends that the prejudicial effect of that evidence was so severe that the judge was bound to discharge the jury and that her refusal to do so was productive of a substantial miscarriage of justice.
We do not accept that contention. The principles which apply to an application for discharge of a jury are clear. As Dawson J said in Crofts v The Queen:[3]
Whether or not a jury should be discharged by reason of some incident which occurs during the course of a trial is a matter within the trial judge's discretion. But it is a discretion which is to be exercised in favour of a discharge only when that course is necessary to prevent a miscarriage of justice. It is in that sense that it has been said that the underlying principle is that of necessity and that ‘a high degree of need for such discharge’ must appear before a discharge will be ordered.[4] When a trial judge's refusal to discharge a jury is called in question, it must be borne in mind that he or she is ordinarily in a better position than an appeal court to assess whether, having regard to the course which the trial has taken and the atmosphere in which it has been conducted, any prejudice may be dispelled by a clear warning to the jury.
In this case it was open to the trial judge to reach the conclusion that an appropriate warning to the jury was sufficient to overcome any prejudice which the admission of the evidence in question caused to the appellant and that any such direction would not draw the jury's attention to the evidence in a manner prejudicial to the appellant. In reaching that conclusion the trial judge did not take into account anything which he ought not to have taken into account nor did he fail to consider any matter which he ought to have considered. The warning which he gave was adequate and there is no reason to suppose that the jury did not follow the direction which they were given so that any prejudice which might otherwise have been occasioned to the appellant was thereby avoided. The refusal to order a discharge of the jury lay within the discretion of the trial judge and there is no basis upon which it can be said that the discretion miscarried. It is not open to this Court simply to substitute its view of the manner in which the discretion ought to have been exercised for that of the trial judge, even if it were minded to do so. The first ground of appeal must fail.
[3](1996) 186 CLR 427, 432.
[4]See Winsor v The Queen (1866) LR 1 QB 390, 394; Swinburne v David Syme & Co [1909] VLR 550, 563, affd David Syme & Co v Swinburne (1909) 10 CLR 43; R v Boland [1974] VR 849, 866.
So too here. The problem arose on the eighth day of the trial after many of the witnesses had given their evidence. Compared to the prejudicial effect of the admissible evidence against the applicant, the prejudicial effect of the jury knowing that the applicant had tried to head-butt and kick arresting police was, in our view, de minimis. The judge gave detailed directions to the jury as to what constituted the admissible evidence and as to what they should ignore. All things considered, we think that it was well open to the judge in the exercise of her discretion to conclude that it was inappropriate to accede to the application for discharge.
Counsel for the applicant submitted that, be that as it may, it remained that the evidence of head-butting and kicking was inadmissible (as the judge ruled it to be). Its unintended admission was, therefore, an error or irregularity in or in relation to the trial. In counsel’s submission, it was not open to say from a review of the record that, absent that evidence, conviction would have been inevitable. Hence, perforce of the High Court’s decision in Baini v The Queen,[5] the admission of that evidence must have been productive of a substantial miscarriage of justice.
[5](2012) 246 CLR 469, 480 [30].
We do not accept that submission. As the majority said in Baini:[6]
No single universally applicable description can be given for what is a ‘substantial miscarriage of justice’ for the purposes of s 276(1)(b) and (c). The possible kinds of miscarriage of justice with which s 276(1) deals are too numerous and too different to permit prescription of a singular test. The kinds of miscarriage include, but are not limited to, three kinds of case. First, there is the case to which s 276(1)(a) is directed: where the jury have arrived at a result that cannot be supported. Second, there is the case where there has been an error or an irregularity in, or in relation to, the trial and the Court of Appeal cannot be satisfied that the error or irregularity did not make a difference to the outcome of the trial. Third, there is the case where there has been a serious departure from the prescribed processes for trial. This is not an exhaustive list. Whether there has been a ‘substantial miscarriage of justice’ ultimately requires a judgment to be made.
[6]Ibid 479 [26] (citations omitted).
In this case, we are concerned with a miscarriage of justice of the second kind. The question, therefore, is whether we can be satisfied that the admission of the evidence of head-butting and kicking did not make a difference to the outcome of the trial. As this court observed in Baini (No2),[7] by that question we take the High Court to mean whether the verdict may have been different for the jury if acting reasonably on the evidence properly before them and applying the correct onus and standard of proof.[8]
[7]On remitter from the High Court: [2013] VSCA 157.
[8]Ibid [9].
Given the evidence which was admissible against the applicant, in particular the evidence of her threats to kill the deceased, her attempt to choke him and the way she reacted to arresting police when arrested (otherwise than by attempting to kick and head-butt them), we think it plain that exclusion of the evidence of head-butting and kicking could not have made the slightest difference to the verdict.
We reject Ground 2.
Ground 3: Unreasonable verdict
Finally, under Ground 3, counsel for the applicant contended that the verdict was unreasonable in the sense that no jury acting properly could have been satisfied beyond reasonable doubt either that the applicant stabbed the deceased or, alternatively, that she did so with intent to kill or inflict really serious injury. He relied on a number of factors in support of that submission including inconsistencies between Carlo’s evidence of the manner of the stabbing and forensic evidence of the trajectory of the knife; Carlo’s potential interest in self-protection; Carlo’s dishonesty and propensity to lie; Carlo’s post-offence conduct; close tribal loyalty between Lohide and Carlo; the fact that the applicant was from a different tribe, with attendant possibility of bias against the applicant; tribal loyalty between Guk and Oleyo; and the lack of a clear motive for the killing.
The difficulty with that submission, however, is that it is essentially an attack on the credit and reliability of the witnesses, which it was the jury’s task to assess,[9] and there does not appear to be anything inherently improbable or inappropriate about the jury’s assessment. Whatever inconsistencies there might have been between Carlo’s evidence of the manner of the stabbing and the forensic evidence of trajectory of the blade, it was open to the jury to accept Carlo’s evidence that the applicant stabbed the deceased more or less in the manner he said. Whatever might be said about the fact that Carlo and Lohide belonged to the same tribe (there being no evidence as to the effects that might have on their credibility), self-interest and reasons to lie, only the applicant had an apparent motive to kill the deceased — because he had made fun of her for being fat — and, according to the testimony of several of the witnesses, only the applicant threatened to kill the deceased and attempted to choke him in the lead up to the stabbing.
[9]R v Hillier (2007) 228 CLR 618, 635 [20]; R v Nguyen (2010) 242 CLR 491, 499 [33].
Perhaps, it might be said that, because of inconsistencies in and between the evidence of some of the witnesses and the apparent dishonesty of a number of them, it was open to the jury to have a reasonable doubt about some of their evidence. But the test of whether a verdict is unsafe and unsatisfactory is not that the jury might have had a reasonable doubt about this or that but whether the jury were bound to conclude that there was a reasonable doubt about guilt.[10] In this case, that was not so. There was ample evidence open to accept that the applicant alone stabbed the deceased and ample evidence that, whatever the trajectory of the blade, it caused his death.
[10]Libke v The Queen (2007) 230 CLR 559, 596–7, [113] (Hayne J, citing. M v The Queen (1994) 181 CLR 487, 492–3 (Mason CJ, Deane, Dawson and Toohey JJ)); SKA v The Queen (2011) 243 CLR 400, 408 [20]–[22]; Potter v R [2013] VSCA 291, [56]–[57] (Maxwell P).
Counsel for the applicant emphasised what he said was the marked disparity between Carlo’s evidence as to the manner in which the applicant stabbed the deceased — substantially, by a downward thrusting motion into the deceased slumped in a chair — and the forensic evidence that the trajectory of the knife blade from the point of entry to the deceased’s body to the deceased’s heart, was upward at an angle of approximately 45 degrees. In counsel’s submission, when that disparity was combined with Carlo’s demonstrated mendacity in relation to other matters, the jury could not properly have excluded as a reasonable possibility that it was Carlo rather than the applicant who killed the deceased.
In our judgment, that submission faces difficulties at several levels. First, it substantially overstates the disparity between Carlo’s evidence as to the manner of the stabbing and the forensic evidence of the trajectory of the blade. Ultimately, as it emerged in the cross-examination of the Crown pathologist, it came to no more than this:
DEFENCE COUNSEL: Yes, now in terms of what you’ve observed of the wound, you tell us that it has an upward track, is that right? --- Yes, that’s correct.
DEFENCE COUNSEL: And we can see that demonstrated in photo 65, can’t we? --- Yes.
DEFENCE COUNSEL: All right. If the deceased man was in a seated position, you wouldn’t expect an upward tracking wound to be caused by a motion in this fashion, would you? That is, the knife being thrust downward? ---In terms of the direction of a track of a stab wound, these are two-there’s a dynamic interaction between two people. So you have to take into account the movement of the knife, but also the movement and the posture of the person. So over interpreting the direction in which the knife may have come from might not take into account the position or indeed the movement of the person at the time when the wound was inflicted.
DEFENCE COUNSEL: Well, if the person was in a seated position and wasn’t moving and the knife was thrust in this fashion, in a downward outward motion from about the shoulder height, you wouldn’t expect an upward track there, would you?---If in an ideal situation the deceased was seated and sitting upright and not moving , then no.
Secondly, although Carlo was shown to have lied about a number of peripheral matters, of which perhaps the most significant concerned his reasons for staying away from the police in the immediate aftermath of the killing and as to how he found out about the killing, the explanation which he gave in the witness box for telling those lies was one which the jury were entitled to accept. After all, he had previous involvement with the police. He did not wish to have anything more to do with them. He feared being suspected of a killing which he did not commit. He had agreed with others present at the applicant’s flat to stay silent about being in the flat at or about the time of the killing. It was only when the others later told him that they had decided to tell all to the police that he felt that he should do the same. Admittedly, his initial attitude did not reflect much credit on him. But, given his background, antecedents, dissolute lifestyle and consequent distrust of institutions, his reasons for telling lies strike us as compelling.
Thirdly, as counsel for the Crown emphasised in his submissions, it is not enough to render a verdict unsafe and unsatisfactory that it may be open to speculate about alternative possibilities. It is only where there is evidence sufficient to compel acceptance of a reasonable possibility consistent with innocence that appellate intervention is warranted.[11] And, here, none of the impugned aspects of Carlo’s evidence required the conclusion that it was reasonably possible that he was the killer. Indeed, apart from a single oblique question in the course of Carlo’s cross-examination, there was not the slightest suggestion that Carlo might be the killer and, once he had squarely refuted the idea, it was never revisited. In the result, there was no evidence, direct or inferential, which precluded the jury being satisfied beyond reasonable doubt that it was the applicant who stabbed the deceased. The Crown case was compelling.
[11]R v Hillier (2007) 228 CLR 618, 683 [48]-[52]; R v Nguyen (2010) 242 CLR 491, 499 [33]-[34].
Counsel for the applicant further contended that, even if the jury were not bound to have a reasonable doubt as to the fact that the applicant stabbed the deceased, they could not properly have been satisfied beyond reasonable doubt that she did so with intent to kill or inflict really serious injury. He submitted that this was a case like Cutter v The Queen[12] where, although there were some indications of murderous intent, it was not open to exclude as a reasonable possibility that the emotion of the occasion, heightened by the consumption of alcohol, resulted in the applicant stabbing the deceased blindly, intending to wound but not necessarily to kill.
[12](1997) 143 ALR 498, 502–3.
We do not think that submission to be persuasive. Cutter was concerned with a charge of attempted murder and so with the question of whether the jury could have been satisfied beyond reasonable doubt that the offender stabbed with intent to kill, as opposed to an intent to inflict really serious injury. In contrast, in this case, the offence was murder and it was sufficient for the Crown to establish that the applicant stabbed the deceased with intent to inflict really serious injury. Further, in Cutter, the stabbing occurred in the context of a policeman attempting to remove the accused from a police van. The High Court considered that, although the deliberation of the accused’s stabbing motion was indicative of an intent to kill, the emotion of the occasion heightened by the consumption of alcohol, the physical force used by the accused and the police in and before the attempt to remove him from the van, and the manner in which the accused struck at the victim as soon as he leant in the door of the van, raised the possibility that the accused stabbed at the victim blindly, intending to resist but not necessarily to kill.
Here, the considerations are different. According to the evidence, the deceased had passed out asleep or comatose in a chair before he was stabbed to death. Upon post-mortem examination, he was found to have had a blood alcohol concentration of in excess of 0.4 per cent, or in other words more than eight times the legal limit for driving. In those circumstances, the jury were entitled to conclude that he did not pose and could not have been perceived to pose the slightest threat to the applicant. Nor was it suggested that he did. There was no evidence of high emotion immediately prior to the stabbing. Based on the evidence earlier referred to, things had calmed down after the applicant was prevented from strangling the deceased. Most importantly, there was a clear implication of intent to kill or inflict really serious injury in the evidence that the applicant left the sitting room, went to the kitchen to obtain the knife and then returned with it secreted behind her back before she stabbed the deceased to death.
Taking into account the evidence of alcohol-fuelled belligerence which the applicant had demonstrated throughout the course of the orgy, starting with the events at the Department’s offices, her apparent animus towards the deceased for mocking her corpulence, her threats to kill him if he persisted in depicting her as fat, her attempt to strangle him before she was pulled off by others present, and the evidence of the manner in which she went for a knife and held it furtively behind her back before stabbing him, it was unquestionably open to conclude that the applicant stabbed the deceased in the chest with intent at least to cause him really serious injury.
Counsel argued that evidence given by Carlo that the applicant was falling-down-drunk and having trouble standing up prior to the killing should have led the jury to conclude that it was not established beyond reasonable doubt that the applicant was capable of forming the specific intent to kill or inflict really serious injury. But the jury heard all of that evidence — some of which was that the applicant was not as badly affected by drink as others — and the jury were also bound to keep in mind the evidence that the applicant had not only threatened to kill the deceased but, after attempting to strangle him and being pulled off, had been able to walk out of the room fetch a knife from the kitchen and then hold it behind her back as she approached the deceased to slay him. There was also the evidence of the applicant’s condition when she was arrested shortly after the killing.
The judge gave a specific direction to the jury that it was not open to convict the applicant of murder unless the jury were able to exclude as a reasonable possibility that she was so drunk as to be incapable of forming the specific intent to kill or inflict really serious injury. Her Honour also gave the jury a detailed and, if we may say so, readily comprehensible explanation of the difference between being so drunk as to be incapable of forming a specific intent and being so much disinhibited by alcohol as to be unable to resist the temptation to kill or inflict really serious injury. Those directions accorded precisely with the authorities.[13]
[13]Viro v The Queen (1978) 141 CLR 88, 112 (Gibbs J); The Queen v O’Connor (1980) 146 CLR 64, 87-88 (Barwick CJ); Cutter v The Queen (1997) 143 ALR 498, 501 (Brennan CJ and Dawson J).
We see no reason to doubt that the jury would have understood them and, given the evidence, we see no reason to think that the jury were in error in applying them as they did. We reject Ground 3.
Conclusion
It follows that the application must be dismissed.
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