McHenry v The State of Western Australia - [2009] WASCA 186

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: McHENRY -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 186

CORAM: WHEELER JA

HEARD: 28 AUGUST 2009

DELIVERED : 30 OCTOBER 2009

FILE NO/S: CACR 10 of 2009

BETWEEN: KEITH LINDSAY McHENRY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MILLER J
File No  :INS 115 of 2005

Catchwords:

Inferences - Turns on own facts

Legislation:

Nil

Result:

Application for extension of time within which to appeal referred to the hearing of the appeal
Application for leave to appeal on grounds 1 and 2 referred to the hearing of the appeal
Leave to appeal refused in relation to ground 3

Category: B

Representation:

Counsel:

Appellant: Mr S Vandongen
Respondent: Mr D Dempster

Solicitors:

Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (WA)

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

Nil

WHEELER JA: This is an application for leave to appeal. I held a directions hearing on 28 August 2009, and made some observations regarding proposed grounds 2 and 3 of the proposed grounds of appeal. In particular, I suggested that counsel give consideration to whether it was proposed to press draft ground 3. Because the matter had been called on for directions only, I did not ask counsel to address argument to that issue. On 25 September 2009, I caused a letter to be sent to counsel for the appellant inquiring whether the appellant had any submissions to make concerning ground 3, in the light of the comments which I had made on 28 August 2009. By letter which is erroneously dated 24 September 2009 (but received at the court on 2 October), counsel advised that the appellant only wished to add to what was set out in the appellant's case to the extent of "reinforcing" that the ground was that the directions that were given did not make it sufficiently clear to the jury that before an inference adverse to the appellant could be drawn, it must have been the only rational inference that could have been drawn.
Ground 3 of the proposed grounds of appeal arises in the following way.
On 16 June 2006, the appellant was convicted of wilful murder. He admitted through his counsel, at the outset of the trial, that he was responsible for the death of his brother. The central issue in the trial was one of intent. The appellant denied an intention to kill and claimed that he acted in self‑defence. Provocation was also left to the jury, although the learned trial judge noted that there was "pretty slim" evidence of that. The appellant suffers from schizophrenia, and there was evidence given at trial of very odd behaviour on his part, leading up to and following the time of his brother's death.
The State had suggested to the jury that the intent to kill could be inferred from the evidence of the number of blows, the weapon used (a brick), the weight of the weapon, the absence of injuries to the appellant, the disability and vulnerability of the deceased and certain of the appellant's post‑offence conduct. The defence asserted that all of those matters were explicable in the context of the appellant acting in self‑defence. There was evidence that the appellant had previously suffered a fractured neck and did not like people touching it, and the appellant claimed that the deceased had taken hold of the appellant around the neck and would not let go. The weapon was one which was normally located at the house at which the offence took place. It was suggested that there was no evidence to show that the appellant had not been injured and it was suggested that his post‑offence conduct was equally consistent with a feeling of remorse over having killed his brother, even though he had done so during the course of self‑defence. There was evidence that the relationship between the appellant and the deceased had normally been good.
Ground 3 of the proposed grounds of appeal is as follows:
The learned trial judge erred in law in failing to direct/give the jury the 'customary direction' on inferences.
I have reservations about the proposition that the "customary inference direction" is a desirable direction, let alone a necessary one, in many cases involving inferences: Davies v The State of Western Australia [2006] WASCA 151 at [6] ‑ [9]. As this is an application for leave, I assume, without deciding, that it was necessary to give a direction of that kind in the present case.
Even on this assumption, the submissions supporting this ground contain two errors which, in my view, are in combination fatal to the ground.
Paragraph 97 of the submissions reads as follows:
In circumstantial evidence cases, judges often direct the jury that in order to prove an inference beyond reasonable doubt, it is not sufficient that it be a rational inference, but must be the only rational inference that can be drawn from the circumstances. This is referred to a 'the customary direction' on inferences. [Emphasis in original]
To the extent that this paragraph suggests that there is a particular formula or form of words which must be used in order for a direction to be described as the 'customary direction' on inferences, it is in error. It is the duty of a trial judge to make sure that a jury sufficiently understands relevant legal principle. That task is accomplished, not by reciting any particular incantation, but by using words which sufficiently convey to the jury the content of the principle concerned. The customary direction on inferences is one which conveys to the jury the concept set out in par 97, but it need not follow any particular form of words.
Paragraphs 104, 105, and 108 of the submissions in support of ground 3 are as follows:
In his Honour's introductory remarks to the jury, his Honour said:
In the event that there's any ambiguity in the evidence, it could be this or it could be that, or in a case of circumstances where there's more than one reasonable inference that can be drawn, the accused is entitled to the resolution of any ambiguity or the drawing of that inference whichever is more favourable to him.
With respect, this direction was somewhat unclear. In addition, immediately afterwards, his Honour inquired of the State prosecutor whether any prior inconsistent statements had been put to witnesses. When advised that there hadn't been, his Honour said to the jury that his Honour would tell them about it anyway 'for safety's sake'. This may have given the jury the impression that what they were being told at that point were standard directions that didn't necessarily even apply in the case.
...
In this case, it was necessary for the jury to be told that they could not conclude that the accused intended to kill his brother unless there was no other rational inference open on the facts. His Honour did not direct the jury in that way.
The error in these paragraphs is that they are an inadequate, and, in my view, misleading, description of what his Honour in fact said to the jury about the subject of inferences.
His Honour commenced by explaining to the jury that they must follow his directions concerning the law (ts 180). He discussed the onus and standard of proof, the way in which evidence was to be evaluated, and the relevance of the appellant's videotaped record of interview. His Honour then said (ts 185):
Now a different subject: inferences. I think I've got that on the list, inferences. Yes, I have. You heard the word mentioned by Mr Ward [counsel for the appellant], I think. Inferences play an important part in criminal cases. What is an inference? [Emphasis supplied]
In that passage, his Honour did a number of things. He advised the jury that he was moving to a new subject (which would have signalled for them that they should pay attention, because he was not merely explaining something that had gone before). He made it clear that that was on his "list" of matters to which he should refer. He advised them that inferences were "important". His Honour continued:
An inference is a conclusion, a logical conclusion, because quite often you can't get evidence directly of something that happened. Quite often you have to draw an inference, a conclusion, as to what happened from certain facts.
This is such a case, really. The State is saying you can draw an inference from what this man did to his brother that there was an intent to kill him. [Emphasis supplied]
In the passage just quoted, his Honour not only told the jury what an inference was, but had clearly directed them that this case was a case which required them to consider whether they could draw an inference. He told them that they would be considering whether, as the State suggested, they could draw an inference of intent to kill.
His Honour then briefly summarised what the State said about the facts from which an inference of intent to kill could be drawn. His Honour then said (ts 186):
Drawing inferences is an important thing and in doing that there's no room for speculation or conjecture or looking for theories which are not supported by the evidence. You don't start theorising, 'I wonder if this, I wonder if that. I wonder if anyone else was in the house', or something like that.
In the event that there's any ambiguity in the evidence, it could be this or it could be that, or in a case of circumstances where there's more than one reasonable inference that can be drawn, the accused is entitled to the resolution of any ambiguity or the drawing of that inference whichever is more favourable to him. [Emphasis supplied]
It can be seen that his Honour repeated his earlier assertion that inferences were "important", and he went on to note that they did not involve speculation. He then directed the jury, in colloquial, but clear, terms that where more than one reasonable inference could be drawn, the accused was entitled to the drawing of the inference favourable to him. It does not seem to me that the direction was relevantly unclear, and the appellant's submissions do not condescend to explain how the jury could have misunderstood it.
The way in which his Honour dealt with previous inconsistent statements was in stark contrast to the way in which he dealt with the subject of inferences. The jury may have understood that his Honour did not think the question of previous inconsistent statements was one of particular importance to their deliberations, but they cannot have formed that view about the drawing of inferences, since his Honour had twice referred to the subject as "important", and had explained to them the inference which the State was seeking to have them draw in that case.
His Honour returned to the subject of inferences later in his direction. At page 188 of the transcript, in distinguishing between the verdicts open to them, he described intention as the "critical" aspect of both wilful murder and murder, and told them, in relation to that specific issue, that intention had to be proved by the State beyond reasonable doubt. Harking back to what he had said earlier about the drawing of inferences in relation to intention, his Honour noted, at page 189, that "[y]ou can only prove [intention] in this case by inference from the acts done or from anything that he said ... ". His Honour went on to explain that the jury had to find that the appellant himself had the relevant intention before they could convict of murder or wilful murder and that anything that distinguished him from his fellows and that might weaken an inference as to intention would be relevant. That was plainly an important direction in the context of a trial where the appellant's behaviour had been eccentric, to say the least.
At page 193, having referred to the medical evidence concerning the injuries to the deceased, his Honour said to the jury:
Does the result [of the attack] tell you what the intention of the person who wielded the blows must have had? That's for you the jury to decide. You have got to he satisfied beyond reasonable doubt that it shows an intention either to kill if it's wilful murder or to cause grievous bodily harm if it's murder.
His Honour reminded the jury that the appellant had denied an intention to kill or do grievous bodily harm. Finally, in relation to the question of intention, his Honour noted the evidence relating to the blood spattering. He summarised the intention question for the jury as (ts 195):
The question is: from those facts, can you draw an inference beyond reasonable doubt of an intention? [Emphasis supplied]
From his Honour's direction, it is my view that the jury must have understood the following propositions:
•intention was a critical issue;
•intention had to be proved beyond reasonable doubt by the State;
•intention to kill or do grievous bodily harm could only be proved by the drawing of an inference; and
•if more than one inference was open, the jury was required to draw that inference which was most favourable to the appellant.
It is therefore my view that proposed ground 3 has no reasonable prospect of success, and I would refuse leave in respect of it.
As to proposed ground 2, it seems to me that it is most unlikely that the jury would have misunderstood his Honour in the way which the appellant's submissions suggest. However, although the ground appears to me to be weak, I am not prepared to make any final determination in relation to the question of reasonable prospects of success, and I would refer the question of leave to the hearing of the appeal.
So far as ground 1 is concerned, it has three elements. Relevant to those three elements are particular new factual materials upon which the appellant seeks to rely. It seems to me that it is appropriate to refer the question of leave in relation to that ground to the hearing of the appeal, so that it can be determined after the court has had the opportunity of considering the new evidence.
I would approve the orders the subject of the consent notice filed by the parties on 7 October 2009. For convenience, I summarise below the programming and leave orders made in this case:
1.The application for extension of time within which to appeal be heard together with the appeal (ordered by Miller JA 12 March 2009).
2.The application for leave in relation to grounds 1 and 2 be heard together with the appeal.
3.Pursuant to O 47(3)(d) of the Supreme Court (Court of Appeal) Rules 2005 (WA), the appellant have leave to rely on:
•the affidavit of Dr Bryan Tanney sworn 19 May 2009;
•the report of Dr Mark Hall to the respondent dated 26 August 2009;
•the affidavit of Brionie Annmarie Ayling sworn 26 February 2009;
•the affidavit of Keith Lindsay McHenry sworn 26 February 2009;
•the affidavit of Keith Lindsay McHenry sworn 29 January 2009;
at the hearing of the appeal.
4.Leave is refused in relation to ground 3.
Finally, I note that on 28 August, I ordered that the respondent was not required to file a reply until advised by the court. I would therefore now make the following order:
5.The respondent file its reply within 21 days of the date of publication of these reasons.