Johnson v The Queen - [1999] WASCA 75

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: JOHNSON -v- R [1999] WASCA 75

CORAM: MALCOLM CJ
PIDGEON J
IPP J

HEARD: 1 JUNE 1999

DELIVERED : 25 JUNE 1999

FILE NO/S: CCA 46 of 1998

BETWEEN: KENNETH CHARLES JOHNSON
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law - Particular offences - Offences against the person - Attempted murder and assault with intent to do grievous bodily harm - Sufficiency of evidence of intention to kill - Adequacy of directions to jury on definition of "attempt" and on alternative counts including grievous bodily harm, criminal negligence and dangerous driving causing grievous bodily harm

Professions and trades - Lawyers - Barrister - Affidavit in appeal alleging breakdown of relationship between barrister and client and failure to follow client's instructions - Affidavit not served on barrister concerned - Directions as to practice to be followed

Legislation:

Criminal Code s 4, s 266, s 294

Road Traffic Act s 59

Result:

Appeal dismissed

Representation:

Counsel:

Applicant: Mr I L K Marshall
Respondent: Mr R E Cock QC & Ms A C Longden

Solicitors:

Applicant: Leonard Cohen & Co
Respondent: Acting State Director of Public Prosecutions

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

Jones v The Queen (1997) 72 ALJR 78
M v The Queen (1994) 181 CLR 487
Oslond v The Queen (1998) 73 ALJR 173
Suresh v R (1998) 153 ALR 128

Case(s) also cited:

Alister v R (1983) 50 ALR 41
Buckland v R, unreported; CCA SCt of WA; Library No 970112; 21 March 1997
Freshwater v R, unreported; CCA SCt of WA; Library no 940046; 28 July 1994
Gallagher v R (1986) 160 CLR 393
Ratten v R (1974) 131 CLR 510
Jenyns v R (1981) 3 A Crim R 243
R v Durante [1972] 3 All ER 962
R v Whybrow (1951) 35 Cr App Rep 141
Reg v Clinton [1993] 1 WLR 1181

MALCOLM CJ: In my opinion, this appeal against conviction should be dismissed for the reasons to be published by Ipp J with which I am in entire agreement.
PIDGEON J: I am in agreement with the reasons to be published by Ipp J and for those reasons I would dismiss the appeal. In each of the offences for which the applicant was convicted, he was found to be guilty of the element of having a specific intention. In the case of the two offences of attempted murder, the intention found was an intention to kill. The cases of the offences involving doing grievous bodily harm, the intention found was an intent to do grievous bodily harm. In these circumstances any claimed deficiency of the direction relating to the offence of manslaughter would have no bearing on the convictions.
Ground 3 claims that the learned trial Judge did not adequately direct on the concept of attempt as defined in s 4 of the Code. The most important element in the circumstances of this case to establish attempted murder was that it must be established that the applicant intended to kill. His Honour gave detailed directions on this point. Once this intention was found and it was clear that the means employed to carry the intention into effect fulfilled the intention was driving a motor vehicle at the intended victim. It would be almost axiomatic that an act of this type would be an act more than merely preparatory to the commission of the offence and I consider no greater direction was needed than that given by his Honour.
I consider on the facts of this case it would have been inappropriate to leave as an alternative verdict the offence of dangerous driving causing death or grievous bodily harm in contravention of s 59 of the Road Traffic Act. The evidence of the applicant was that he made a deliberate decision to leave the road and drive through the front fence of private property. The evidence is not in dispute that he so drove. He said he did this because he panicked when he saw a police car. He was no longer on a road when the relevant danger occurred. Once accident was negated his act was a manifestly unlawful one, but even if there were bodily harm without an intention to cause bodily harm, it would have been caused unlawfully. The unlawful act was the non‑accidental act of driving a vehicle off the road through the fence, over a garden, and into a carport where a children's party was in progress. In the absence of its being found there was an attempt to cause an act I would see the offence here as causing grievous bodily harm or nothing. There could be no circumstances where a jury, if they found it was not unlawfully caused, could come to the view that it was caused by dangerous driving.

IPP J: The appellant was charged with four counts of attempted murder and three counts of assault with intent to do grievous bodily harm, the latter three counts being alternative counts to three of the counts of attempted murder. The appellant was found guilty of two counts of attempted murder and one count of assault with intent to do grievous bodily harm. He was found not guilty on the other counts. He appeals against his convictions in respect of the three counts of which he was found guilty.
The events which gave rise to the convictions occurred at a children's birthday party held at the home of Mr and Mrs Kearney in Kalgoorlie. In order to understand the arguments that were raised on appeal it is necessary to set out in some detail what occurred.
Mr and Mrs D A Kearney arranged to have a surprise birthday party on the afternoon of Sunday, 3 August 1997 at their house in Kalgoorlie for Melissa Perry, the 4 year old daughter of their friends, Mr and Mrs Graham Perry. The appellant was a close friend of Mr and Mrs Kearney but they decided that it would be preferable for him not to attend the party as there was ill feeling between him and Mr Graham Perry. Mr Perry had had an affair with the appellant's wife, Mrs Sandra Johnson (from whom the appellant was separated). Accordingly, the Kearneys informed the appellant that it would be preferable if he did not attend the party. He assented to this and the Kearneys arranged to see him again on the following Monday.
On the morning of 3 August 1997 the appellant met two of his friends at his house and he there drank a couple of cans of beer with them. Mr Kearney arrived and went with the appellant and the two others to the Exchange Hotel where they had some more beer. The men left the Exchange Hotel and went to the Tower Hotel. Mr Kearney had a beer with them there and then returned to his house to continue preparations for the birthday party. The others continued drinking at the hotel.
It is necessary to describe the situation of the Kearney house and that part of it where the party was held. The house is situated on the corner of Varden Street and Russell Street. Roughly speaking (and all the directions that follow are given on a rough basis), Varden Street runs from north to south and Russell Street from east to west. The front entrance to the house is on the eastern side and borders on Varden Street. There is a side entrance in Russell Street which leads into the garden through an asbestos fence which runs along the Russell Street boundary of the property. The Russell Street verge is about 4 metres wide and the distance between the fence and the western side of the house is about 3 metres. The backyard is to the west of the rear of the house. There is a bricked in patio, about 7 x 4 metres in area, immediately adjacent to the rear of the house on its western corner. At the time in question, there was a pergola on the patio which provided shelter. The pergola was supported by wooden poles. One of the poles was on the north western corner of the patio. The distance from the eastern boundary of Russell Street to this pole (and the western boundary of the patio) was about 7 metres. About 2 metres to the north west of the pole was a tree. Apart from the patio, the area to the rear of the house was lawn. About 4 metres to the north east of the eastern corner of the patio was a concrete shed which had previously been a toilet but at the time in question was used as a store.
Mr Kearney arrived at his home between 2.00 pm and 2.30 pm. The party commenced at about that time. There were about six to eight adults and about 10 to 12 young children at the party. There was a table on the patio and most of the mothers of the children were seated around it. There was also a television set on the patio and a number of men were watching a football game. The children were playing on the patio and the backyard lawn.
Shortly after Mr Kearney returned to the house, Mrs Johnson arrived with her two young children (of whom the appellant was the father). She sat with the other women at the table on the patio and her two children went off on to the lawn to play a game with other children.
The appellant then arrived unexpectedly, and contrary to the understanding between him and the Kearneys. He had been to the Kearney house on many occasions and was familiar with the layout of the back area where the party was taking place. He saw his wife and children and Graham Perry. He appeared to be affected by alcohol and looked "in a rage". When he noticed Mr Perry, he swore at him and walked towards him. Mr Kearney was behind the appellant and realised that trouble was brewing. He spoke to him, saying, "come on, Ken. It's a 4 year old's birthday party". Mr Kearney put his hand on the appellant's shoulder and shepherded him out of the house. Once outside, Mr Kearney asked the appellant to leave and he agreed. As the appellant was walking away he turned around and said "I can't let it go" and came towards Mr Kearney. Mr Kearney grabbed hold of him, threw him to the ground and told him not to make any trouble. When the appellant agreed Mr Kearney let him go.
The appellant left the property and walked along Varden Street uttering obscenities. A vehicle was parked in the street and the appellant began punching the vehicle and kicking it. Mr Kearney called out to him that he should stop as the vehicle belonged to a neighbour. The appellant walked off.
Mrs Kearney testified that after her husband had admonished the appellant not to kick the vehicle, the appellant yelled out "that he was going to come back and kill us all". Evidence to similar effect was given by Mr R J L Williams who said that after Mr Kearney had spoken to the appellant about not kicking the vehicle, the appellant said "I'll be back. I'm going to kill youse all".
Mr Kearney thought that there might be trouble and called the police. Eventually the police arrived and parked their vehicle near the house in Varden Street. Mrs Kearney came outside to talk to the police and while she was doing so she saw the appellant drive his utility vehicle from east to west along Varden Street, proceed some distance into the intersection between Varden Street and Russell Street and then make a right turn. The vehicle was also being watched by Mr Raymond Perry, Mr Graham Perry's nephew, who was standing on the verge in Russell Street outside the Kearney house. Mr Raymond Perry is the father of two of the complainants (Danielle and Travis Perry) and the wife of Mrs Christine Perry, another complainant. Mr Perry testified that the utility vehicle turned right into Russell Street and, as it straightened out of its turn, it lined up with the asbestos fence of the Kearney house which runs along Russell Street. It then continued on the same angle straight towards the fence. Mr Perry thought that the vehicle was heading straight towards him.
Mr Perry observed the appellant driving the vehicle. According to Mr Perry, "he just kept on going in a straight direction. He accelerated and had his arms locked in a ten to two position", and "[he] had his arms locked just steering straight forward to where he was heading, straight in position". Mr Perry said that the appellant made no effort to turn the steering wheel, to swerve or to brake. He said the vehicle did not behave as if it was out of control. The vehicle did not decelerate at any stage, it just went straight into the fence and into the Kearney property. Mr Perry was an experienced driver who had participated in speedway driving and was well qualified to judge these matters.
The vehicle crashed through the asbestos fence and headed towards the patio where the mothers, including Mrs Johnson, were sitting round the table and the men were sitting watching the football on the television and the children were playing. The front of the vehicle struck the pergola pole at the north western corner of the patio and missed the tree to its left by less than a metre. The pole broke and other poles were struck and broke as well. The pergola collapsed.
Mrs Christine Perry was sitting at the table on the patio with her baby, Travis, who was then 6 weeks old, in her arms. She heard the noise of the utility vehicle hitting the fence and saw it coming through the fence towards her. She had no time to take avoiding action and it struck her. Her child was knocked from her arms. Mrs Perry was seriously injured and Travis less so.
The collision with the pergola poles resulted in the utility vehicle changing its direction. It careered on in a north easterly course, and struck the former toilet (now a concrete shed) to the north east of the property. This apparently caused the vehicle to alter course again and it proceeded in an easterly direction until it collided with the back wall of the house at the north eastern corner where it came to a stop.
Danielle Perry, the eight year old daughter of Mr Raymond Perry and Mrs Christine Perry, was lying underneath the vehicle as it stopped. She had been injured by the vehicle striking her. It is not entirely clear where Danielle was situated when the vehicle struck her, but it is plain that she was not on the patio. She had not been sitting at the patio when the appellant first arrived at the house. At that time she was being taken to the toilet inside the house by her father. The inference to be drawn from the evidence as a whole is that she was playing in the lawn area to the north or east of the patio when the impact occurred.
Witnesses testified that after the vehicle had crashed into the back wall of the house, the rear wheels started to move and the reverse lights came on and stayed on. The appellant was plainly attempting to reverse. Raymond Perry saw this happening while his daughter, Danielle, was under the wheels. He put his right knee through the window to stop the appellant from moving backwards and hauled him out of the vehicle.
The appellant was found guilty of attempting to murder Mrs Christine Perry and attempting to murder Travis Perry. He was also found guilty of assaulting Danielle Perry with intent to do grievous bodily harm. He was found not guilty of attempting to murder Danielle Perry. He had also been charged with attempting to murder Mr Graham Perry and he was found not guilty of this charge.
According to the first ground of appeal, "there is not evidence of the intentions of the applicant (sic) to support the conviction". In my view this ground cannot be sustained.
As mentioned, Mrs Kearney heard the appellant shout out that he would return "and kill us all" and Mr Williams testified to the same effect. I should mention that in the course of argument on the appeal, the appellant applied unsuccessfully for leave to call Mrs Kearney to testify before this Court on the basis that, after the trial, she allegedly told other witnesses that she had not heard the appellant threaten to return to kill those people. That application was refused as Mr Williams had given evidence to the same effect, and his testimony had not been challenged in cross-examination. It should be said that the evidence of Mrs Kearney in this respect was also not challenged. It was not suggested in cross‑examination that Mrs Kearney or Mr Williams were being untruthful or inaccurate in their testimony. The appellant testified at trial that his memory as to what occurred on the day in question was "patchy" (there were large gaps in it) and he was not able to deny the evidence that Mr Williams and Mrs Kearney had so given.
Apart from the explicit threat that the appellant had made, the evidence of the manner in which he drove his vehicle was entirely consistent with such an intent. In driving through the fence and into the pergola, the appellant drove between the rear of the house and the tree to the north, a narrow gap indeed. As counsel for the prosecution submitted, it would have been a difficult feat, at the best of times, to have been able to go through the fence, miss the side of the house, miss the tree and drive through the patio. As mentioned, the appellant was familiar with the backyard of the Kearney home. He knew from his earlier visit that most of the adult guests, including Mrs Johnson, were sitting on the patio, as were some children. The description of how he came out of the turn in Russell Street, lined up in the direction of the Kearney house, proceeded without deviation and without slowing down, with the vehicle at all times under control until at least it collided with the fence, is indicative of an aiming of the vehicle at the patio area where so many of the guests were congregated.
The appellant did not dispute the evidence concerning the manner in which he drove the vehicle. He agreed that his vehicle was not out of control. His only explanation for not attempting to swerve away was that "it was over as quick as that". He sought to explain his conduct by saying that when he saw the police vehicle in Varden Street he thought that he was in trouble as he was driving a vehicle while drunk and he panicked. He said "I just flattened the car and turned into Russell Street". He said "just as I turned I just give it every thing it had to get away from the cops, basically". He said he was in "a panicked blur". By their verdicts the jury did not believe the appellant. There was good reason for them coming to such a conclusion.
The evidence I have recounted amounted to a very strong case of an intention on the part of the appellant to kill all those persons sitting on or in the vicinity of the patio (at whom the appellant, in effect, aimed his vehicle as he drove along Russell Street towards the Kearney property). The jury were entitled to draw the inference and find beyond reasonable doubt that the appellant intended to kill Mrs Christine Perry and Travis Perry, they being amongst those who were sitting on the patio.
As regards Danielle Perry, I have noted that she was not in the patio area both at the time the appellant initially came on to the property and when he drove the vehicle through the fence. In these circumstances there was good reason for the jury to have found that the Crown had not proved beyond reasonable doubt that the appellant intended to kill her; the evidence establishing only that he intended to kill those persons who were in the patio area. On the other hand, on the evidence as a whole, it was open to the jury to find that, as the appellant drove the vehicle towards the fence, he realised full well that once the vehicle had passed through the patio area and had struck people there it was likely to veer off in some other direction and strike other persons elsewhere in the backyard. It was open to the jury to find that, whereas the appellant did not intend to kill those persons who were not in the patio area, he nevertheless intended to cause them such injuries "as to endanger, or be likely to endanger life, or to cause, or be likely to cause, permanent injury to health" (s 1(1) of the Criminal Code). The point is that the prospects of killing the people who were in the patio area were far stronger than the prospects of killing those in the rest of the backyard. The appellant drove directly at the guests on the patio, and there was good reason (having regard to the evidence as a whole - particularly, the explicit threats, the manner of driving, and the appellant's knowledge of the whereabouts of the guests) for the appellant to believe that some of them would be killed, as they were likely to be struck directly with the full force of the vehicle. Any collision with other persons elsewhere was likely to occur randomly, and it was open to the jury to infer from all of the evidence that the appellant did not intend to kill those persons, but did intend to cause them serious injury.

The second ground of appeal reads as follows:
"The verdict[s- sic] of the jury are unsafe and unsatisfactory and there has been a miscarriage of justice as the verdicts on counts 1 and 4 are inconsistent with the verdicts of counts 2 and 6 and as the jury were not satisfied beyond reasonable doubts on counts 1 and 4, they could not be so satisfied in relation to counts 2 and 6."
Count 1 was the count of attempting to murder Graham Perry. Count 4 was the count of attempting to murder Danielle Perry. The appellant was found not guilty on both these counts. Count 2 was the count of attempting to murder Christine Perry. Count 6 was the count of attempting to murder Travis Perry. The appellant was found guilty on both these counts.
The test for an unsafe or unsatisfactory verdict is whether the court considers, upon the whole of the evidence, it is "open to the jury" to be satisfied beyond reasonable doubt that the accused person is guilty: M v The Queen (1994) 181 CLR 487 at 493, Jones v The Queen (1997) 72 ALJR 78. As McHugh J (with whom Kirby J agreed) said in Oslond v The Queen (1998) 73 ALJR 173 at 197:
"When there is no legal or technical inconsistency in the verdicts, a conviction can only be set aside where the inconsistency in the verdicts demonstrates that no reasonable jury who had applied their minds to the evidence could have arrived at the two different verdicts. In such a case, the Court of Criminal Appeal sets aside the conviction because it is unsafe or unsatisfactory."
I have above pointed out that there were good grounds on which the jury could have found, in the case of Christine and Travis Perry, that the appellant had the requisite intention to kill. In the case of Danielle, it is manifest from the different factual situation that applied to her that it was open to the jury to find that there was no intention to kill but an intention to do grievous bodily harm. As regards Graham Perry, the evidence established that he, like Danielle, was not sitting on the patio either when the appellant first came to the house or when he drove his vehicle through the fence in the direction of the patio. This, too, explains the finding that the appellant was not guilty of murdering him.
The learned trial Judge directed the jury that each of the counts should be treated as if there were a separate trial in respect of it. His Honour carefully directed the jury that the Crown was required to establish intent to kill in respect of the counts of attempted murder. His Honour explained further that "if he intended to kill whoever happened to be in the group or whoever happened to be in front of his vehicle, then that's enough if those in his path were the persons who are actually named in the indictment. The question for you is whether you are satisfied beyond reasonable doubt that he had the intention of killing those people". His Honour proceeded:
"We know from the evidence that Graham Perry was not in the path of his vehicle. So in his case you would have to reach the conclusion on the evidence before you that the accused man intended to kill Graham Perry by driving his vehicle into a group which he expected to include him and that he attempted to do that on that afternoon. If you are unable to find that this was proven to the requisite degree, that would not of course mean - although you would have to acquit him on that count, that would not of course mean that you couldn't be satisfied that the accused man intended to kill those other people who did happen to be in his path. That is a separate question."
The learned Judge gave a specific direction in regard to the count of assaulting Danielle Perry with intent to commit grievous bodily harm. This was in the context of having previously explained the meaning of "grievous bodily harm" and having pointed out that at the time of inflicting such an injury it was necessary for the Crown to prove that the appellant "intended specifically to inflict injuries of that kind".
Thus, having regard both to the evidence and the directions of the learned Judge, it was open to a reasonable jury to come to the verdicts they did. In my opinion there is no substance in the second ground.
The third ground is as follows:
"As to counts 2 and 6, the learned trial Judge failed to adequately direct the jury on the definition of attempt under s 4 of the Criminal Code and accordingly the verdicts of the jury are unsafe and unsatisfactory and there was a miscarriage of justice".
Section 4 of the Criminal Code provides:
"When a person, intending to commit an offence, begins to put his intention into execution by doing an act that is more than merely preparatory to the commission of the offence but does not fulfil his intention to such an extent as to commit the offence, he is said to commit the offence."
The learned Judge directed the jury in this respect as follows:
"Next I should tell you something about the notion of attempting to kill, that being of course the allegation in each of those four counts. There have to be three things. The first is an act done with the specific intention of killing the person named and the count you are considering, and I will come back to that in a moment as to what that means in practice in the circumstances of this case. The second is that the act cannot reasonably be regarded as having any other purpose and the third is that the act must have gone beyond mere preparation to killing and that there must have been a direct movement towards killing the person or persons concerned.
Dealing first with the third of those elements, that of attempt, I don't know that I can say much more than that the act must have gone beyond mere preparation to kill. Obviously words by themselves couldn't be an attempt to murder, but the driving of a car directly at somebody can be. That would be true whether the driving of the car in that way, that is to say, in a way which could result in the killing of someone, in fact caused serious injury or a superficial injury or no injury at all."
In my opinion his Honour's direction was entirely appropriate. It was suggested by counsel for the appellant that his Honour should have read to the jury the provisions of s 4. In my view this would have been entirely unnecessary, and may have confused the jury. The essential point the learned Judge made to the jury was that the Crown was required to proved that the appellant had put his intention into execution by doing something more than an act that was merely preparatory to the commission of the offence (albeit that he had not fulfilled his intention). This being a case where the appellant was alleged to have attempted to murder by driving his motor vehicle at the people who were in the back yard of the Kearney home, the words used by his Honour clearly expressed the necessary element of the offence. It was the driving of the car directly at the persons concerned that was the act in question. The jury was required to find that this act went beyond mere preparation to kill. His Honour explained this to the jury. Nothing more was required.
The fourth ground of appeal reads:
"The verdict on count 2 is unsafe and unsatisfactory as the learned trial Judge failed to direct the jury adequately on the alternative verdicts to count 2."
As mentioned, count 2 alleged that the appellant had attempted to murder Christine Perry. Count 3 was the alternative count of assaulting Christine Perry with intent to do grievous bodily harm. The learned Judge explained to the jury that they were only required to consider count 3 if they found the appellant not guilty of count 2. His Honour then said, "I should also tell you, even though this is not written on the indictment, that there are further unwritten alternative charges to count 2, apart from the one which constitutes count 3". His Honour clarified what he meant by these further alternative counts as follows :
"If you are not satisfied beyond reasonable doubt as to the accused person's guilt on count 2 and on the alternative count, being count 3, then you would first consider what I have referred to there as the first unwritten alternative to count 3 in the indictment, that is, the count of unlawfully doing grievous bodily harm to Christine Perry.
It's enough on that count for you to know that any person who has a car in his charge, being something which can in the absence of care in its use endanger the life or safety of any person - that person who has such a vehicle in his charge must take reasonable care to avoid that danger and if he doesn't and if as a consequence he does grievous bodily harm to another, then he's guilty of the crime of unlawfully doing grievous bodily harm to another, so on this alternative, which you only get to if you find the accused man not guilty on each of counts 2 and 3, you would ask yourselves only the question whether the grievous bodily harm which was admittedly done to Mrs Perry by the car was done unlawfully, that is to say, for your purposes was the car something which in the absence of care in its use could endanger the life or safety of any person and, if so, was the grievous bodily harm suffered by Mrs Perry caused by the accused man's failure to take reasonable care to avoid that danger?
Finally so far as count 3 is concerned, you will see on that sheet of paper that there is one other alternative unwritten account which you would only consider now if you arrive at a verdict of not guilty on counts 2 and 3 and on the first unwritten alternative to count 3. This second unwritten alternative is a count under our Road Traffic Act of causing grievous bodily harm to Christine Perry by driving a motor car in a manner - and 'a manner' includes speed - that is, having regard to all of the circumstances of the case, dangerous to the public or any person, so if you get to this one, the question for you is that whether the grievous bodily harm which was admittedly done to Christine Perry was caused by the accused man driving his vehicle in a manner, which includes speed, which was dangerous to the public or to any person in all of the circumstances of the case.
I will repeat, so far as the alternative counts are concerned, that you will be asked first for your verdict on count 2. Only if your verdict on that count is one of not guilty will you be asked for a verdict on count 3. Again only if your verdict on that count is one of not guilty will you be asked about the first unwritten alternative to that count, being the unlawful doing of grievous bodily harm, and then only if your verdict there is also one of not guilty will you be asked about the second alternative, unwritten alternative that is to say, being the driving of a motor vehicle in a manner that was dangerous, causing grievous bodily harm."
The first "unwritten alternative count", on which the learned Judge directed the jury, related to an offence under s 294 of the Criminal Code. The second related to an offence under s 266 of the Criminal Code. The appellant's submission was that the learned Judge erred in his directions in relation to both these "unwritten alternative counts" in omitting to direct the jury on the difference between civil and criminal negligence. It was also said that his Honour should have given "the usual directions about the conduct of the driver being gross negligence (sic) going beyond compensation between subject and amounting to a crime against the State". It was submitted that "the alternative of grievous bodily harm by criminal negligence was not adequately put".
Counsel for the appellant drew attention to the fact that the learned Judge had omitted to direct the jury as to yet a further alternative count, namely under s 59 of the Road Traffic Act 1974 (being dangerous driving causing death or grievous bodily harm). It was submitted that this omission prejudiced the appellant.
Senior counsel for the respondent accepted that the learned Judge's directions to the jury on the two counts described as the "unwritten alternative counts" were inadequate to the extent that his Honour did not properly explain the elements of criminal negligence. It was said however, that his Honour's omission in this respect did not unfairly deny the appellant a right to an acquittal. It was submitted, indeed, that this omission was to the benefit of the appellant as it left an optional verdict available to the jury "which they could more readily have brought in than in fact … the law would allow". It was also submitted that the omission to put the further alternative count of contravening s 59 of the Road Traffic Act 1974 caused no detriment to the appellant. In my submission the arguments advanced on behalf of the respondent are correct.
It was not submitted on the appellant's behalf that the learned Judge erred in his directions in respect of count 2, on which the appellant was found guilty. The complaint is only directed at the two alternative counts which were put in the further alternative to count 3. As the jury never got to those further alternative counts - having found that count 2 was proved beyond reasonable doubt - it could not be said that the appellant was prejudiced in any way or that any semblance of a miscarriage of justice occurred. The same applies to the omission to put the further alternative count of contravening s 59 of the Road Traffic Act 1974.
Ground 5 is based on a similar argument to ground 4. Ground 5 reads:
"The verdict on count 6 is unsafe and unsatisfactory as the learned trial Judge failed to direct the jury adequately on the alternative verdicts to count 6."
The appellant was found guilty of count 6, being the count of attempting to murder Travis Perry. Count 7 was in the alternative to count 6, being a count of assaulting Travis Perry with intent to do him grievous bodily harm. His Honour explained to the jury that there was "a further unwritten alternative count" to count 7, that being unlawful assault. His Honour reminded the jury what he had told them as to the elements of unlawful assault. The learned Judge did not direct the jury as to the existence of a further unwritten alternative count to count 7, being an offence under s 266 of the Criminal Code. Nor did his Honour direct the jury that there was yet a further alternative count, namely a contravention of s 59 of the Road Traffic Act 1974.
Counsel for the appellant submitted that the jury should have been directed in regard to all possible alternative counts. He also submitted, once more, that the learned Judge had omitted to give adequate directions as to criminal negligence in directing the jury as to the elements of unlawful assault.
For the same reasons as those I have expressed in regard to ground 4, I consider that ground 5 fails. The omission of the learned Judge to make any reference to criminal negligence, and to direct the jury as to the further alternative offences were immaterial. The jury were satisfied beyond reasonable doubt that the appellant had committed the offence charged by count 6, namely attempting to murder Travis Perry. In the circumstances there was no possible prejudice to the appellant.
Ground 6 alleged that there was a miscarriage of justice based on reasons set out in an affidavit sworn by the appellant on 21 May 1999. The miscarriage of justice was said to have resulted from the conduct of counsel for the appellant at the trial. According to the appellant he was coerced into having the particular barrister as his counsel, the trial process took place in circumstances where the counsel/client relationship had broken down, counsel did not follow the appellant's instructions in regard to the conduct of his defence, and failed to challenge a particular juror.
At the outset it is to be noted that the affidavit of the appellant which makes the allegations on which ground 6 is based was not served on the barrister concerned. No attempt was made to obtain his version and he had no opportunity to put his version to the Court. In my opinion, this omission is fatal to this ground. When serious allegations of this kind are made against a legal practitioner, and the verdict of the jury is sought to be overturned because of the alleged incompetence of counsel or the omission of counsel to follow instructions, the barrister concerned should be informed of the allegations against him or her and the barrister should be provided with a copy of the affidavit to enable that to be done. The barrister should be invited to respond by affidavit. It would be exceptional for a Court of Criminal Appeal to overturn the verdict of a jury on the basis of allegations of this kind without the barrister having been given an opportunity to respond to the accusations on which the appeal is based.
I shall, in any event, briefly comment on this specific complaint.
The general principle is that if an omission to lead evidence or cross‑examine (in circumstances not involving a deliberate choice on the part of the accused and his advisors) results in a miscarriage of justice, the verdict of the jury will be set aside: Suresh v R (1998) 153 ALR 128 at 159-160 and 162.
As I understand counsel for the appellant, the main criticism of counsel at the trial is that he did not follow instructions to call character witnesses in defence of the appellant. I am unable to appreciate, however, how character witnesses would have assisted the appellant in the particular circumstances. As I have indicated, there was powerful evidence of intent to kill. The evidence of the explicit threats made by the appellant would have had a dramatic effect on the jury. The detailed evidence as to how the appellant was driving when he came through the fence directly at the persons on the patio was not challenged. The inference was compelling that he was directing the vehicle at the very point and direction in which he intended it to travel. There was compelling evidence of an intent to endanger the lives or cause permanent harm to those who were not on the patio. There was no challenge in cross‑examination to any of this evidence.
The proposition that the appellant drove through the fence towards the patio without any intention to harm anyone and because he panicked on seeing the police car had virtually nothing to commend it. The absence of intent was directly negated by his explicit threat and the suggestion of panic does not explain his omission to swerve and his failure to brake.
The inference to be drawn is that counsel for the appellant considered that the testimony of character witnesses would be useless, and in my view had such a decision been taken, it would have been entirely correct.
It was also said that counsel should have called the evidence of one Graham Higgins. No material was put to the Court as to what Mr Higgins would have said. In the course of argument, counsel for the appellant suggested that it would have been "presumably character evidence". If so, the comments I have previously made in regard to character evidence apply.
The appellant, in his affidavit, asserted that counsel at trial did not cross‑examine prosecution witnesses on certain particular issues. I have examined those issues and none is material.
It was submitted that counsel for the appellant at trial "failed to challenge the juror who knew Mr Graham Perry". The juror concerned had been an apprentice, albeit in a different trade, with the appellant some 20 years previously. He had seen the appellant once or twice since then, the most recent time was about 2 years previously when he saw him at "the sky‑divers at Kambalda". It is not clear whether the juror just saw the appellant in the distance or had some discussion with him. Whatever the position, the extent of the juror's relationship with the appellant appears to have been minimal. The appellant told the Court that his knowledge of the appellant would not affect his judgment. After taking instructions, counsel informed the learned Judge that the juror concerned was satisfactory to the defence. In all the circumstances, I am not persuaded that the omission to challenge the juror gave rise to any miscarriage of justice. Indeed, I am not persuaded that any of the points made by the appellant in his affidavit of 21 May 1999 have any substance.

Finally, ground 7 asserted that Mrs Kearney "testified erroneously that the appellant said that he was going to come back and kill us all. This was not said by the appellant and the witness erroneously said that it was said". This ground was based on material in affidavits by the appellant, his father and his solicitor, sworn after the completion of the trial.
The difficulty that the appellant faced in regard to this ground was that no affidavit by Mrs Kearney was put before the Court. Counsel for the appellant applied for an order under s 697B of the Criminal Code that Mrs Kearney be called to testify before this Court. As mentioned, the application was dismissed. In the light of that decision, this ground falls away.
In the circumstances I would dismiss the appeal.