Morton v The Queen

[2020] NTCCA 2

CITATION:Morton v The Queen [2020] NTCCA 2

PARTIES:  MORTON, Robert

v

THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO:CCA 13 of 2017 (21539697)

DELIVERED ON:  25 May 2020

HEARING DATE:  28 May 2018

JUDGMENT OF:  Grant CJ, Blokland and Barr JJ

CATCHWORDS:

CRIME – Appeals – Appeal against conviction – Miscarriage of justice

Applicant convicted of murder – Whether trial judge erred in directing jury to determine what they accepted or did not accept of the applicant's statements to police – Appropriate directions given concerning prosecution onus to prove applicant intended to cause the victim at least serious harm – Whether trial judge erred in directing the jury to determine whether the applicant thought the axe was a stick – Relevant direction was to determine whether applicant intended to cause serious harm regardless whether he believed that he was striking the blows with an axe or with a stick –Direction unexceptional – Whether trial judge erred in inviting the jury to determine the applicant’s level of intoxication – Effect of relevant direction was whether level of intoxication gave rise to a reasonable doubt whether the necessary intention existed – Appeal dismissed.

Criminal Code 1983 (NT) s 43AI, s 156

Coleman (1990) 47 A Crim R 306, Director of Public Prosecutions v Majewski [1977] AC 443, R v Faure (1999) 2 VR 537, Shepherd v The Queen (1990) 170 CLR 573, Viro v The Queen (1978) 141 CLR 88, Zoneff v The Queen (2000) 200 CLR 234, referred to.

Judicial Commission of NSW, Criminal Trial Courts Bench Book, Trial Instructions [3-255]
Judicial College of Victoria, Victorian Criminal Charge Book, Par 8.7.2

REPRESENTATION:

Counsel:

Applicant:S Odgers SC

Respondent:  S Robson

Solicitors:

Applicant:Northern Territory Legal Aid Commission

Respondent:  Office of the Director of Public Prosecutions

Judgment category classification:    B

Number of pages:  32

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Morton v The Queen [2020] NTCCA 2

No. CCA 13 of 2017 (21539697)

BETWEEN:

ROBERT MORTON

Applicant

AND:

THE QUEEN

Respondent

CORAM: Grant CJ, Blokland and Barr JJ

REASONS FOR JUDGMENT

(Delivered 25 May 2020)

THE COURT:  

1. On 15 May 2017, the applicant was found guilty of the murder of his wife. He applies for leave to appeal the guilty finding. The respondent opposes the grant of leave. For convenience, the proposed single ground of appeal was fully argued on the hearing of the application for leave. The ground is as follows:

   The trial judge erred in directions that were given to the jury bearing on the burden and standard of proof.

2. The central issue raised by the proposed appeal is the question of law as to whether one or more of the trial judge’s specific directions to the jury were such that his Honour’s general directions in relation to burden and standard of proof were undermined.

   The Crown case at trial

3. The victim and the applicant had been in a domestic relationship for a number of years and were staying together at the home of the applicant’s mother at the Alpurrurulam Community on the night of 9 August 2015.

4. During the morning of Monday, 10 August 2015 the applicant and deceased were alone together in House 98, Alpurrurulam. Sometime before 5.30 am the applicant beat the deceased and caused numerous injuries. Afterwards, the applicant went to House 74 to get help. He asked for someone to come and look at his wife, who he said was in pain and had been hitting herself. Darren Toby went with the applicant to House 98. On arrival at House 98 Mr Toby observed the deceased lying in the bedroom, still alive. Mr Toby took the applicant to the local nurse’s residence. It was by then approximately 5.30 am. The applicant told the nurse, Delma Wade, that his wife had been drinking, had a sore arm, and felt sick. On the basis of this information, Ms Wade told the applicant to bring his wife to the clinic at 8.30 am as it was not an emergency. Mr Toby dropped the applicant back at House 98 before returning to House 74. After his return to House 98, the applicant went back to House 74. Mr Toby then went to House 98 and saw that the deceased was not moving. Mr Toby and his partner then went to the nurse’s residence to fetch Ms Wade.

5. Ms Wade arrived at House 98 at about 6.25 am. After being directed to the bedroom by the applicant, she checked the deceased for signs of life and confirmed that she had died. A second nurse arrived on the scene and a decision was made to move the body of the deceased to the clinic. The applicant assisted the nurses in putting the deceased on a trolley.

6. Police attended the clinic at about 7.00 am and from there went to House 98, where Constable Joe Cooper had a conversation with the applicant outside the house.[1] The applicant told Constable Cooper, referring to the deceased:

   … when she drinks alcohol she goes crazy and starts hurting herself. Last night she hit herself on the head with some rocks.

7. The applicant showed Constable Cooper a location at the rear of the house where, he said, the deceased had been hitting herself with rocks. He showed Constable Cooper some rocks which were about the size of a tennis ball. He stated, a short time later:

   … we were both drinking last night. At about 10.00 pm I had my last bit of grog. Mavis was drunk and she began to take off her clothes and run outside. I told her not to do that but she wouldn’t listen to me. She started to make me angry so I picked up a knife and stabbed her in the bum and the leg and her hand.

8. The applicant also said:

   She was being silly so I grabbed my axe and hit her on the arm, the leg and the top of the head.  

9. Constable Cooper enquired as to the whereabouts of the axe and knife, and was told by the applicant that the axe was wrapped up in his clothes in the wardrobe, and that the knife was on the shelf in his room. During the crime scene examiner’s search of House 98, a small hand-held axe was found in the bedroom of House 98, behind some clothes at the back of a cupboard, on the floor. A knife was found on a shelf in the same bedroom.[2]

10. The applicant participated in a recorded interview (EROI) with police during which he admitted to hitting the deceased with the axe and putting it in the cupboard afterwards. The applicant claimed that the deceased had initially taken the axe from the cupboard. He said he had taken the axe from the deceased and struck her with it, but that, when he was using it, he thought the axe was a stick.[3] Somewhat inconsistently with that assertion, he claimed that he used the purported stick against the deceased “from this side … not the sharp way, this way”,[4] suggesting that he was actually aware he was using an axe, but not the blade. The applicant said that he used the axe to hit the deceased a total of three times: on the head, shoulder/arm and leg, and that he had used the blunt or flat side of the axe.[5] He also claimed that the deceased was cutting herself with the axe,[6] to the back of her left hand and on her leg, and on the right side of her “bum”,[7] and had even hit herself in the back with the axe.[8]

11. According to the evidence of the forensic pathologist, Dr Terence Sinton, the deceased sustained numerous injuries, all of which contributed to her death. Dr Sinton estimated that the deceased had sustained at least 28 impacts to her head and body, comprising:[9]

    (a)one impact to the back of the scalp;

    (b)three impacts to the top of the scalp;

    (c)three impacts to the face region, including a chip fracture to the frontal skull (forehead), which required severe force;

    (d)six impacts to the anterior trunk;

    (e)three impacts to posterior trunk, corresponding to three fractured ribs, two of which required severe force;

    (f)three impacts (at least) to the left arm;

    (g)three impacts (at least) to the right arm, including an impact which caused a complete break in the upper arm, which required severe force;

    (h)three impacts (at least) to the left leg; and

    (i)three impacts (at least) to the right leg, including a stab wound to the right thigh and buttock.

12. The deceased died due to a combination of loss of blood from her injuries (including bruising and other forms of internal bleeding), and breathing complications caused by the fractured ribs.[10]

13. Although the Crown relied upon the applicant’s use of an axe as well as a knife, at the minimum the Crown case focused on the number of impacts or blows inflicted by the applicant on the deceased. Irrespective of the means used to inflict the 28 blows, the Crown alleged (and submitted) that he intended by his conduct to kill or cause serious harm.[11]

14. The Crown did not accept that the applicant was intoxicated to any significant extent at the time he killed the deceased. Amongst other things, the Crown pointed out that the evidence suggested that the applicant’s level of intoxication was well short of being “very drunk”, as he maintained in his police interview. The Crown also referred to the applicant’s condition in the early morning of the day in question (being able to run and walk fast, and concoct an exculpatory narrative), to submit that his conduct shortly prior to and following the deceased’s death provided little support for the assertion that he was heavily intoxicated at critical times.[12]

15. The Crown also pointed to the absurdity of the applicant’s claim in his police interview that he thought the axe was a stick when he was using it on the deceased. As described above, the applicant identified the axe as an axe at the time (he claimed) the deceased had first taken it from the cupboard; yet, after he had taken it from her, the axe somehow became a stick in his mind. The applicant then claimed that, when he was using what he purported was a stick on the deceased, he had used the “blunt side” or “flat side”, not “with the sharp way”. This was in marked contradiction to the assertion or suggestion that that he did not know it was an axe.

16. Senior counsel for the applicant contends that the suggested absurdity is explained by the fact that the applicant’s conflicting or self-contradictory statements may have been the product of hindsight.[13] The contention proceeds that, because of poor light conditions, the applicant did not realise that the “stick” was an axe at the time (he claimed) the deceased had taken it from the cupboard, and did not realise until after he had used it to assault the deceased that the “stick” was, in fact, an axe. Similarly, it is contended that the applicant’s assertion that he had used the blunt or flat side of the axe – while claiming that he thought it was a stick – can be explained by his having observed the deceased’s injuries and realising, again with hindsight, that they were not caused by the blade of an axe. We consider that the first of these explanations is inherently improbable, and that the second is quite speculative. Further, we note that, in his address to the jury, defence counsel did not contest that the applicant was aware that he was using an axe at the time he assaulted the deceased. Rather, defence counsel submitted that the applicant’s admitted use of “the flat edge of the tomahawk” was inconsistent with the state of mind of a murderer, and was evidence that the applicant did not have murderous intent.[14] That submission clearly implied that the applicant was aware that he was using an axe and had made a conscious choice to use the flat side of the axe head rather than the more lethal blade.

17. At trial, there was no dispute that the applicant killed the victim. The defence accepted that during the early hours of 10 August 2015, the applicant severely assaulted the deceased.[15] There was no dispute that the applicant stabbed her with the knife in the thigh and struck her a number of times with a small axe. The defence accepted that there were 28 discrete impacts to various parts of the body of the deceased involving varying degrees of force, up to “severe”. Those concessions notwithstanding, the defence case was that the applicant did not intend to cause serious harm to the deceased and that he should have been found guilty of manslaughter.

    Applicant’s case on appeal

18. The applicant does not criticise the general directions given by the trial judge in relation to burden and standard of proof; nor does he criticise the direction given to the jury that the central issue in the case was whether the prosecution had proved beyond reasonable doubt that the applicant intended to kill or cause serious harm to the victim. However, the applicant contends that several specific directions bearing on the burden and standard of proof were erroneous.

19. The first impugned direction was that given by the trial judge in relation to the applicant’s police interview, set out in the following extract (the italicized emphasis forms part of the submissions of the applicant’s senior counsel):[16]

    Now, the final evidence that came before you was the record of interview and that comes before you as evidence in the same way as other evidence although, as Mr Geary pointed out, it was not on oath and it has not been the subject of cross-examination but nevertheless it is evidence. It’s a matter for you to determine what you accept and what you don’t accept. … So you must decide for yourselves what was said, what his demeanour was like, his gestures, his nods, his pauses, was he telling the truth or was he not …

20. For completeness, we extract the full context of his Honour’s instruction in that respect:[17]

    Now, the final evidence that came before you was the record of interview and that comes before you as evidence in the same way as other evidence although, as Mr Geary pointed out, it was not on oath and it has not been the subject of cross-examination but nevertheless it is evidence. It’s a matter for you to determine what you accept and what you don’t accept.

    You have a transcript there of that evidence. I remind you that the transcript is just someone’s best effort to take down what was said. The evidence itself is the recording and you will have the ability to play that recording if you feel the need.

    So you must decide for yourselves what was said, what his demeanour was like, his gestures, his nods, his pauses. Was he telling the truth or was he not? And the Crown suggested to you that he was in fact diminishing, seeking to diminish his responsibility. You can treat that record of interview just like any other piece of evidence. It can be used for him, it can be used against him, it’s a matter for you how you use it.

21. In context, it can be seen that his Honour’s statement, “So you must decide for yourselves what was said …” followed from his reminder to the jury that the primary evidence was the audio-visual recording (exhibit P6) and not the transcript subsequently made of that recording. Moreover, his Honour appeared to encourage the jury to replay the recording, not only to decide what the applicant had actually said, but also to observe his demeanour, gestures, nods and pauses.

22. The asserted error on the part of the trial judge was in directing the jury to determine what they accepted or did not accept of the applicant's statements to police. Although senior counsel for the applicant acknowledges that, as with the evidence of any witness, the jury was entitled to consider both truthfulness and reliability, he contends that the question for the jury was whether the prosecution had proved the applicant’s guilt beyond reasonable doubt and, specifically, whether the prosecution had proved beyond reasonable doubt that he intended to cause the victim at least serious harm, taking into account the evidence of what he said in the course of his police interview.[18]

23. The impugned direction was given by his Honour near the end of his charge to the jury. It is apparent from the transcript that shortly after that direction was given his Honour adjourned and, in the absence of the jury, asked if there was anything which either counsel wished to raise. The prosecutor asked for a direction in relation to the accused’s election not to give evidence. Defence counsel joined with the prosecutor, asking for a direction that no adverse inference be drawn from the fact that the accused had not given evidence. His Honour expressed some reluctance to give such a direction, explaining that he considered it was unnecessary because the accused’s “whole version of events is given in the record of interview”.[19] His Honour nonetheless agreed to give the direction if defence counsel so requested. Defence counsel then submitted that the trial judge should tell the jury that no adverse inference could be drawn from the accused not giving evidence, and should also say that the jury had heard the accused’s version in his record of interview.[20] Defence counsel also asked the trial judge to give a direction substantially in accordance with the suggested direction in Zoneff v The Queen,[21] since the prosecution did not seek to rely upon lies as evidence of consciousness of guilt.[22] Finally, defence counsel drew to his Honour’s attention that the applicant had visited the nurse’s residence on one occasion and not two, and to that extent His Honour had wrongly summarised the evidence. Defence counsel conceded that this was “perhaps not a major issue”.[23]

24. Significantly, defence counsel did not raise any query or seek a correction or further direction in relation to the first impugned direction. Noting the matters which defence counsel did raise, we conclude that that the direction given by his Honour did not cause concern in the mind of counsel immersed in the trial process, fully aware of matters in contest between the prosecution and the accused, and sensitive to possible prejudice to his client. That is not, of course, determinative of this Court’s considerations, but it does provide some indication that the direction was not at that time considered inconsistent with or inimical to the legal and forensic basis of the defence case.

25. A proper assessment of the impugned direction requires a consideration not only of the immediate context, but also the content of the earlier and subsequent directions given in his Honour’s charge to the jury. In this respect, the trial judge made a number of references to the burden and standard of proof. At the outset of the summing up his Honour gave an orthodox direction in relation to Crown onus, with specific reference to the applicant’s interview with police:

    It is for the Crown to prove the case against [the accused] and that onus remains on the Crown throughout. What that means in practical terms is that you have heard from Mr Morton about his version of events. You have heard that through the record of interview. He does not have to prove any of that. It is for the Crown to prove the case against him … Mr Morton, as with every accused who comes before this court, does not have to prove anything. It is for the Crown to establish its case and to do so beyond reasonable doubt. … If you are left in a reasonable doubt about an element of the offence, then your duty would be to find Mr Morton not guilty of that particular offence. If you simply do not know where the truth lies, then I would think by definition, you have a reasonable doubt and you would be obliged to find him not guilty.[24]

26. In relation to the assessment of evidence, his Honour said in part:

    When you look at the evidence of a witness and indeed this includes the record of interview of Mr Morton, you do not have to accept the whole of the evidence. You can accept the whole of the evidence and you can reject the whole of the evidence, but you may think that some of it is accurate and some of it is not accurate. It really is a matter for you what you accept from the evidence of each of the individual witnesses. You might think in some parts they were mistaken or inaccurate, in other parts they were accurate.[25]

1. On the subject of intent and inferences, his Honour said:

   … in this case it is submitted on behalf of the Crown that Mr Morton intended to either cause the death of or to cause serious harm to [the deceased]. It is for the Crown to prove that and it is not for Mr Morton to prove otherwise and the Crown must prove it beyond reasonable doubt.[26]

2. And further:

   … if you are inferring guilt on the part of Mr Morton in this case … You should only draw an inference of guilt from the facts that you have found surrounding the events, the facts that you have found beyond reasonable doubt and then you examine those facts to see if the inference is justified.[27]

3. As already stated, counsel for the applicant does not challenge the general directions given by the trial judge in relation to burden and standard of proof. The thrust of the challenge is that the trial judge’s instruction to the jury in relation to the accused’s police interview was a specific direction in relation to burden and standard of proof, and, as such, was so inadequate as to constitute error. In our view, however, and notwithstanding the statement, emphasized by the applicant, beginning, “So you must decide for yourselves…”, his Honour’s observations were more directed to the jury’s assessment of the accused’s statements to police and the weight to be given to unsworn evidence which had not been tested in cross-examination. His Honour’s remarks were made at the end of his summary of the evidence.[28] They were not made in the context of or for the purpose of giving directions in relation to burden and standard of proof.

4. It may have been appropriate to remind the jury at that point, yet again, that the prosecution had to prove beyond reasonable doubt that the accused intended to cause the victim at least serious harm, and in that context to specify that the jury should take into account all of the evidence, including the evidence of what was said by the applicant in the course of his police interview. However, we consider that it was unnecessary to do so because of the directions given elsewhere in his Honour’s charge to the jury.

5. The second impugned direction was given by the trial judge at an earlier stage in his charge to the jury, in relation to the applicant having told police that he believed that the axe was a stick.[29] Senior counsel for the applicant identifies the following passage (italicized emphasis added by counsel):

   You need to think about whether blows struck with an axe of the kind described, or indeed if you came to the conclusion that he thought it was a stick, with a stick that caused those injuries.   

6. The essential submission in respect of that direction is as follows:[30]

   It was erroneous to direct the jury that they needed to think about whether “you came to the conclusion that he thought [the axe] was a stick”. The question for the jury was whether the prosecution had proved beyond reasonable doubt that the applicant intended to cause the victim at least serious harm, taking into account his assertion to the police in the EROI that he believed that the axe was a stick.

7. In order to assess the submission in relation to the second impugned direction, it is again necessary to identify the full direction and to consider the context in which that direction was given. His Honour had warned the jury against inferring intent from consequence.[31] He had explained the matters which could permissibly be taken into account to enable inferences to be drawn in relation to intent, and had given a direction as to the necessary level of satisfaction before the jury could draw an inference of guilt.[32] His Honour then explained the elements of the crime of murder by reference to an aide memoire document provided to each juror. His Honour told the jury that the Crown had to establish beyond reasonable doubt that, at the time the accused engaged in the conduct causing the death of the deceased, he either intended to cause death or intended to cause serious harm.[33] After explaining the meaning of ‘serious harm’, his Honour continued, as follows:[34]

   So, as a minimum in this case, the Crown has to prove that Mr Morton intended to cause serious harm to [the deceased], and by that is meant he intended to cause harm that endangers or is likely to endanger a person’s life or that is likely to be significant and long-standing.

   You need to think about whether blows struck with an axe of the kind described, or indeed if you came to the conclusion that he thought it was a stick, with a stick, that caused those injuries, if that was what was intended, then you will find that the definition of intention has been established for the purposes of murder.

8. It is clear that his Honour was there explaining the second limb of the fault element for murder, specifically intention to cause serious harm.[35] The direction meant that, regardless whether the applicant believed that he was striking the blows which caused the deceased’s fatal injuries with an axe or with a stick, if he intended to cause the serious harm (“those injuries”) actually caused (“if that was what was intended”), then the fault element of intention to cause serious harm was satisfied. The direction was unexceptional.

9. The case at trial was not one in which the applicant’s awareness that he was using an axe was an indispensable link in a chain of reasoning toward an inference of guilt.[36] The jury did not need to decide that issue, and the trial judge did not suggest that the jury should do so. Indeed, his Honour expressly acknowledged that, in considering the accused’s state of mind at the time of inflicting the fatal injuries, the jury might well conclude (“if you came to the conclusion that he thought it was a stick”) that the accused thought he was striking the deceased with a stick.

10. Further, as submitted by counsel for the respondent, it was open to the jury to accept the applicant’s claim that he thought he was using a stick, or to consider that it was a reasonable possibility that he thought so, or even to make no conclusive finding on this issue, but nonetheless to be satisfied beyond reasonable doubt that he meant at the minimum to cause serious harm, simply because of the prolonged nature of the beating and the multiple blows or impacts involved.[37] 

11. We reject the applicant’s submissions in relation to the second impugned direction. No error is made out.

12. The third impugned direction or series of directions relate to what his Honour said in relation to intoxication. Because those directions were quite lengthy, we consider it is preferable to reproduce them in full, rather than to reproduce the limited selection extracted in the applicant’s submissions. The parts shown in italics are those identified by senior counsel in support of his submissions:

    So the issue then becomes, well, was he so intoxicated that he could not and did not or, put more properly, that the Crown hasn’t established that he did form an intent to cause her death or cause her serious harm? And it’s not just limited to the consumption of alcohol. It’s the impact of alcohol as part of the facts that you need to look at. So, as Mr Corish put to you, the nature of the injuries, the circumstances as they were described and as you find them to be when you go through that process in the jury room.

    So the consumption of alcohol featured very heavily in this case. Indeed it featured very heavily in this, and for much of the case we were focused on what his consumption of alcohol was and what impact it had on him. So I want to say something to you about alcohol and intoxication relevant to the circumstances of this case.

    So there is evidence that he was affected by alcohol to some extent. The level of that extent is a matter for you to determine. It’s a question for you and you alone. Was he a little bit drunk or was he greatly intoxicated or was he affected to some other level? It’s a matter for you to decide.

    What is important for you to know is that intoxication is not a defence. The mere fact that you are drunk, drunk out of your mind, does not constitute a defence. You do not escape liability from the criminal law just because you are intoxicated.

    Another thing for you to remember is that a drunken intent to do something, for example, in this case to cause serious harm or to cause death, is still an intent to do that. So if you have a drunken intent to cause death and if you do cause death, there’s still an intent to cause death or the same with serious harm. A drunken awareness is still an awareness.

    So, in considering your verdict in this case, you need to think about Mr Morton’s state of intoxication as you determine it to be and whether it has a bearing on his intent. Has the Crown established that he has the necessary intent even though you find that he was intoxicated to whatever the extent may be?

    Now, we know from our experience from others, watching others and what we’ve learned through life that if you are severely intoxicated, if a person is severely intoxicated, then that may affect their ability to form an intention. It may affect lots of things: how they perceive things to be, and you get that gradation from having one drink and feeling warm and fuzzy right through to the point where somebody collapses unconscious.

    And he was obviously somewhere in the middle. There’s no suggestion that he had collapsed unconscious. The question is to what extent was he affected by alcohol and I’ll remind you of the evidence in that regard in a moment. But you need to determine whether his consumption of alcohol did firstly mean that he could not form an intention.

    And I think Mr Corish specifically said, ‘Well, we don’t say he was that drunk’.[38] But whether it is relevant to and significant in determining what intention he did form when you take what, if any, intention he did form, when you take into account all of the other factors surrounding this particular incident. So the nature of the weapons, the blows that were struck, the number of blows that were struck, the injuries that were suffered and so on.

    So in that regard we know that people who are affected by alcohol can be affected to different degrees. They can be affected to the extent that their personality changes. A person who’s normally quiet and shy might become garrulous. A person who is normally peaceful might become violent. They may become excitable. They may become tearful.

    Surely you’ve all experienced people in those sorts of states. They might become very quiet and subdued. Their level of self-control may change. They lose inhibition. They do things that they wouldn’t otherwise do. These are some of the impacts that I’m sure you have seen apply to people that you know to be intoxicated.

    So alcohol may make people different from what they usually are but they are still responsible for their conduct. As I said to you earlier a drunken intent is still an intent. Of course in addition alcohol can make you less aware of what you were doing or, indeed, the consequences of what you were doing.

    It can make people take silly risks which they wouldn’t do when they are sober. But just because of that it doesn’t mean that those risks or those consequences were not intended, even to the extent of a person who doesn’t remember later on what they did doesn’t mean their conduct wasn’t intended when they did it. Again I say to you a drunken intent is nevertheless an intent.

    So in this case we need to think about or you need to think about just how intoxicated was Mr Morton at the time of these events which he admits took place. Does the fact that he was intoxicated to the degree that you determine taken with the other matters that Mr Corish talked about mean that he did not have an intent to either kill or to seriously harm his victim.

    And this is where it’s important to remember that the expression that Mr Corish used of murderous intent is not limited to an intent to kill but rather an intent to, in addition, an attempt to cause serious harm.

    So has the Crown proved beyond reasonable doubt to you that Mr Morton, at the time of these events, did have an intent to kill his victim or alternatively did have an intent to cause her serious harm? If the Crown hasn’t established either one of those to your satisfaction beyond reasonable doubt then you will find him not guilty of murder. On the other hand, the Crown has established that beyond reasonable doubt your duty is to find him guilty.

13. Senior counsel for the applicant submits that “it was erroneous to invite the jury to first determine the applicant’s level of intoxication before proceeding to consider whether that level of intoxication caused them to have a reasonable doubt as to whether the necessary intention existed”.[39]

14. The applicant directs particular criticism at his Honour’s use of the words “determine” and “decide” in the directions extracted above: “a matter for you to determine”; “a matter for you to decide”, et cetera. The applicant submits that the direction left it open to the jury to make ‘preliminary decisions’ including, relevantly, a decision that the applicant was not very intoxicated (and a decision that the applicant did not mistakenly think the axe was a stick). It was therefore possible that the jury made and took into account such ‘preliminary decisions’ in considering whether the prosecution had proved the applicant’s guilt beyond reasonable doubt.[40] Senior counsel for the applicant submits that the jury should not been invited to make a determination as to the level of intoxication; and that his Honour should have directed the jury “to consider the evidence of intoxication when deciding whether the prosecution had proved beyond reasonable doubt that the applicant intended to kill or cause serious harm to the deceased”.

15. In brief, the applicant’s argument is that his Honour should have directed the jury to consider the evidence of the applicant’s intoxication, but should not have directed the jury to decide or determine the level of intoxication because it was “dangerous to direct them to determine the degree of intoxication”.[41]

16. The applicant’s point is a fine one, and appears to place artificial emphasis on, or attribute an overly legalistic meaning to the words ‘decide’ and ‘determine’ used by his Honour in his trial directions. We do not discern any encouragement to the jury to engage in a two-stage approach. However, even if the jury engaged in the suggested two-stage reasoning process on their path to deciding the ultimate question, the theoretical risk of injustice thereby occasioned to the applicant was likely to be nil or very slight. That is because, in practical terms, it is difficult to see how jury members would not come to their own view about the accused’s level of intoxication when instructed to consider evidence of intoxication in deciding whether they were satisfied beyond reasonable doubt that the accused had the relevant intent notwithstanding his consumption of alcohol. As counsel for the respondent submits, the jury would be bound to ask themselves how drunk the accused really was.[42]

17. The New South Wales Judicial Commission Criminal Trial Courts Bench Book contains a suggested intoxication direction in relation to intention as to consequence of conduct, which reads in part as follows:[43]

    In considering the question of whether the Crown has proved that [the accused] had the intention to [specify the required intent] one matter that you need to consider is the effect upon [the accused] of the [alcohol/drugs] which [he/she] says [he/she] consumed. Whether [the accused] was affected by [alcohol/drugs] at the relevant time and the degree of that intoxication are issues for you to decide. But as a matter of law, intoxication by alcohol or drugs is a relevant matter to be taken into account in determining whether an accused person had formed the intent to commit the offence charged …

    It is for the Crown to satisfy you beyond reasonable doubt that [the accused] had the intent to [specify the intention] in spite of the evidence of [his/her] consuming [alcohol/drugs] before the alleged conduct giving rise to the charge. If the Crown fails to satisfy you beyond reasonable doubt on that issue [the accused] must be acquitted of [the offence of specific intent]. …

    Having considered the evidence and arguments on this issue, the question for you is whether, having regard to the evidence of [the accused’s] intoxication, you find the Crown has proved beyond reasonable doubt that [he/she] acted with the intention to [specify the specific intention].

18. The Victorian Criminal Charge Book also contains a precedent charge in relation to intoxication and intention.[44] It includes the following suggested directions:

    … Evidence of intoxication may be taken into account when considering what a person intended when s/he committed a particular act. …

    You can see from these examples that the relevance of intoxication may vary, depending on the extent of the intoxication and the circumstances. While in some cases it may affect a person’s intentions, in others it will simply reduce his or her inhibitions. The mere fact that, due to intoxication, a person does something which s/he would not have done when sober does not mean it was done unintentionally.

    It is important to note that it is not for the defence to prove that NOA was so intoxicated that s/he acted without the necessary intention. It is for the prosecution to prove that NOA acted intentionally, despite his/her level of intoxication. …

    It is for you to determine, based on all the evidence in the case, the extent to which the accused was intoxicated, and the effects the intoxication had on him/her. If you are not satisfied that the prosecution has proven, beyond reasonable doubt, that despite being intoxicated NOA [identify act] intentionally, then you must find him/her not guilty of [identify offence].

19. It can therefore be seen that the bench books in both New South Wales and Victoria indicate that it is appropriate for a trial judge to use the words ‘decide’ or ‘determine’ in directing the jury in relation to their consideration of the degree or level of an accused’s intoxication. That is not determinative of the applicant’s contentions in relation to the third impugned direction, but is objective confirmation that the trial judge’s directions were not out of kilter with the directions on this issue commonly given in Australian criminal trials over many years.[45]

20. The most important message to be communicated to the jury in the present case in relation to the accused’s intoxication was that the prosecution had to prove beyond reasonable doubt that the accused had the intention (at least) to cause serious harm to the deceased, notwithstanding his intoxication. In that context, the question posed by his Honour at the very start of his direction on intoxication[46] satisfied that crucial requirement: “Was he so intoxicated that he could not and did not or, put more properly, that the Crown hasn’t established that he did form an intent to cause her death or cause her serious harm?”. His Honour reinforced the message shortly afterwards, when he posed this question for the jury: “Has the Crown established that he had the necessary intent even though you find that he was intoxicated to whatever the extent may be?”.

21. We are satisfied that the trial judge’s summing up adequately conveyed to the jury that the ultimate question was whether, in the light of the evidence of intoxication and all other relevant circumstances, the prosecution had proven beyond reasonable doubt the intent necessary for the crime of murder.[47] 

22. We further observe that, consistent with the direction or instruction referred to in [46] above, his Honour provided the following summary of defence counsel’s submissions at the end of his charge to the jury (emphasis added):[48]

    In his address Mr Corish acknowledged that Mr Morton did severely and seriously assault the deceased in what he described as an awful case. However, he said that you would have difficulty in concluding that Mr Morton had what Mr Corish termed a ‘murderous intent’, by which of course he must be taken to mean an intention to cause the death of the deceased or to cause her serious harm.

    He said to you that his case is not that Mr Morton was so intoxicated as to not be able to form the necessary intention, but rather that his level of intoxication was serious and is something to be considered along with all the other matters known to you in determining whether the Crown has established beyond reasonable doubt the necessary intention.

    Intoxication is just one issue which you will weigh in the balance along with a whole lot of other issues. And he took you through the actions of Mr Morton; the injuries that were caused; the nature of the injuries; the use of the blunt side of the weapon; the fact that those serious injuries to the head and the stabbing with the knife were not themselves likely to be fatal or not the cause of death…

    If you find he did not intend to cause her death you still need to look at the intention in relation to serious harm.

    But Mr Corish says, “Look, take all those matters into account along with his intoxicated state. That might be and you cannot be satisfied beyond reasonable doubt that he had the necessary intent”.

1. With the possible exception of the statement, “Intoxication is just one issue which you will weigh in the balance along with a whole lot of other issues’, his Honour’s summary of defence counsel’s submission did not amount to a direction of law, carrying the imprimatur of the trial judge. However, we consider that the extracted parts served as a reminder to the jury of the trial judge’s earlier directions, and provided a logical link connecting those directions with defence counsel’s submissions.

2. In support of the applicant’s submission that the jury should be told that they should take into account, but not make a finding about, the effect of intoxication,[49] senior counsel for the applicant relies on the following statement of Gibbs J (as his Honour then was) in Viro v The Queen:[50]

   In a case where there is evidence fit to be considered by a jury that the accused was intoxicated as a result of the consumption of drink or drugs, it is not enough to tell the jury that the Crown must prove beyond reasonable doubt that the accused had in fact formed the requisite special intent. They should also be told that the fact that the accused was intoxicated, whether by drink or drugs or by a combination of both, may be regarded for the purpose of ascertaining whether the special intent in fact existed. It should be explained that evidence that the accused was intoxicated will not in itself entitle him to an acquittal, because a person when intoxicated may form the necessary intent, and one who has formed the intent does not escape responsibility because his intoxication has diminished his power to resist the temptation to carry it out. However, the jury should be told that if, because of the evidence as to the effect of the intoxication or otherwise, they are not satisfied that the accused did in fact have the necessary intent, they must acquit of the crime which involves that intent.

3. The passage relied on has no obvious bearing on the present appeal. At his trial on a charge of murder, the applicant in Viro made an unsworn statement from the dock in which he asserted that he was “well affected by heroin” at the time of the fatal stabbing and that he had “never formed any intent to harm” the deceased. Although the trial judge told the jury that it was necessary that they should find an intent to kill or an intention to do grievous bodily harm before they could convict the applicant, the trial judge did not direct the jury that the fact that the applicant had used heroin might be relevant to the question whether he had formed the necessary intention. Moreover, at the conclusion of his summing up, the trial judge refused defence counsel’s request to direct the jury that, in deciding whether or not the applicant had in fact formed the relevant intent, they should take into account the effect of the drugs.[51] On the accused’s application to the High Court for special leave to appeal his conviction, Gibbs J stated that it would be contrary to fundamental principle to hold that evidence of intoxication, not amounting to incapacity, was irrelevant to criminal responsibility where the commission of the crime required an intention to cause a particular result.[52] After referring to a passage from the judgment of Lord Salmon in Director of Public Prosecutions v Majewski,[53] Gibbs J made the observations extracted above, and continued as follows:

   The jury in the present case were not told that they were entitled to have regard to the fact that the applicant was high on heroin in deciding whether he had formed the necessary intent. … In the circumstances the jury should have been told that in deciding whether they were satisfied that the applicant intended to kill or harm [the deceased] they might have regard to the fact that the applicant had taken heroin. The summing up was defective in this respect.

4. The comments made by Gibbs J in Viro were directed to an issue of general principle – that intoxication was properly to be taken into account in relation to specific intent – but was in no way prescriptive as to the limits on an appropriate direction in relation to intoxication and intent which a trial judge might give. There was no issue before the High Court as to the permissible limits of an appropriate direction. To the extent that the present applicant contends that the jury should have been told only that if, because of the evidence as to the effect of the intoxication or otherwise, they were not satisfied that the accused did in fact have the necessary intent, they must acquit, and no more, we reject the contention.

5. Senior counsel for the applicant also places considerable reliance on parts of the judgment of Hunt J in Coleman v The Queen,[54] to contend that it is “very clear that a jury should not be told that they have to ‘determine’ anything about the degree of intoxication prior to considering the ultimate issue”.[55]

6. In Coleman, one of the grounds of appeal was that the trial judge had erred in his instructions to the jury on the issue of intoxication, both in relation to voluntariness and intent to cause injury to the victim.[56] The appellant was charged and found guilty on one count of maliciously inflicting actual bodily harm upon a male victim with intent to have sexual intercourse with him. The Crown case against the appellant was that he inserted a bottle of beer into the victim’s anus and then proceeded to have penile/anal intercourse with him. The appellant was a heavy drinker, and claimed that he was heavily intoxicated at the time of the alleged acts. At his trial, he raised the issues of intoxication and lack of specific intent.[57]

7. On appeal, the appellant argued that the question which the jury should have been directed to consider was not whether the Crown had established that he had, inter alia, “the capacity to intend to achieve a specific result by using the bottle in the way he did”.[58] He contended that the correct question was not one of ability or capacity to form the relevant state of mind, but rather whether the prosecution had established that the appellant did in fact form the relevant state of mind. In deciding that question, Hunt J observed as follows:[59]  

   Since the decisions of the High Court in Viro and in O’Connor, the Full Court of the Federal Court has held – in appeals from the Australian Capital Territory and from the Northern Territory (at a time when the common law still applied there) – that, in relation to the issue of intent, the question is not one of ability or capacity to form the relevant intent; it is a question of the actual formation of that intent. If a person is incapable of forming an intent, it was held on each occasion, he will obviously enough not have the intent; but, if he is found to have the capacity to form the intent, it does not necessarily follow that he in fact formed it [citations omitted].

   There can be no doubt therefore that the correct question for the jury upon the issue of intoxication is whether the Crown has established that the accused had in fact formed the state of mind which is relevant to the offence charged. …

   The trial judge should direct the jury that the Crown must establish that the accused had in fact formed the state of mind which is relevant to the offence charged. In relation to that issue (if intoxication has been sufficiently raised on the evidence), the judge should tell the jury that the onus lies on the Crown to remove any reasonable doubt from their minds which may have been raised by the evidence of the accused’s intoxication. To do that, the Crown must persuade the beyond reasonable doubt that the accused’s state of intoxication was not such as to deny the existence of the relevant state of mind which may otherwise be apparent from all of the other evidence in the case.

8. Counsel for the within respondent has correctly identified that the issue in Coleman arose because the jury had been directed in terms which they may have understood to mean that the question of intoxication was merely as to whether the accused had the capacity to form the required intent.[60] We consider that it is clear from the passage in Coleman extracted above that the observations of Hunt J were to emphasise the need to direct the jury that the issue about which they needed to be satisfied beyond reasonable doubt was intent, not the capacity to form that intent; hence his Honour’s further observations, set out below:[61]  

   In all cases where the factual case being run by the accused is that he was so intoxicated as to have been incapable of forming the relevant state of mind, the judge should stress to the jury that they do not have to determine whether the accused was or was not so capable; they should take that evidence into account, together with all of the other evidence in the case, in determining whether the Crown has established that the accused had in fact formed the state of mind relevant to the offence charged.

9. Properly understood, therefore, the decision of Hunt J in Coleman is authority for the proposition that it is unnecessary for a jury to make a determination about the capacity of an accused to form the requisite intention, because the issue is whether the accused in fact formed that intention. The decision does not purport to set limits on an appropriate direction in relation to intoxication and intent which a trial judge might give. For that reason, it does not support the applicant’s submission that the trial judge’s directions on intoxication and intent were erroneous.

Conclusion

1. The applicant has not established that the directions given by the learned trial judge were attended by error or gave rise to any miscarriage of justice. Accordingly, leave to appeal is granted and the appeal is dismissed.

______________________________

[1]Appeal Book (AB) 101.

[2]Photographs of the knife appear at AB 291-292. Photographs of the axe and its location when found are at AB 294-5.

[3]See, for example, AB 331, 333, 336.5, 339, 381 and 383.

[4]AB 382.8.

[5]AB 336, 382.

[6]The applicant initially said that the deceased was cutting herself, suggesting she was doing so with the knife (AB 340.2). He then said, “She was using that knife or maybe she was hitting with that same axe” (AB 340.4). When he was then asked whether the deceased was cutting herself with the knife, he replied, “No, must be that knife or must be that axe” (AB 340.5). He eventually settled on the version that that the deceased had cut herself with an axe (AB 342.7, AB 343.3).

[7]AB 342.8-343.1.

[8]AB 347.8-348.1.  

[9]AB 222-223.

[10]AB 222.1.

[11]AB 15.2 (Crown opening); AB 432.4 and AB 446 (Crown closing).

[12]AB 434-436.

[13]Applicant’s Reply, par 1.

[14]AB 454.1, 454.5 (“the complete lack of the use of the killing edge of the tomahawk”). The trial judge summarised defence counsel's submission in his charge to the jury at AB 486.5: “Further, Mr Corish makes the point that, although Mr Morton was armed with an axe and he was armed with a knife, he did not use those weapons in a way that you might expect if his intention was to cause the death of the deceased. …”.

[15]Defence address to the jury (AB 450): “There is no dispute that Mr Morton inflicted a bashing on [the deceased] that led to her death.”

[16]Applicant’s Written Submissions, page 2 par 7.

[17]AB 478.

[18]    Applicant’s Written Submissions, page 3 par 7.

[19]AB 479.5.

[20]AB 479.7. It may be noted that His Honour subsequently gave a very full direction (AB 490), in the specific terms submitted by defence counsel, extracted from the New South Wales Judicial Commission Criminal Trial Courts Bench Book.

[21]Zoneff v The Queen [2000] HCA 28; 200 CLR 234 at [23].

[22]The prosecutor made the concession at AB 447. His Honour gave the Zoneff direction at AB 485.2-485.5.

[23]AB 480.9.

[24]AB 460.4.

[25]AB 465.9-466.

[26]AB 467.5.

[27]AB 467.9.

[28]AB 474-478.

[29]The evidence of the applicant's various statements in his police interview in relation to thinking that the axe was a stick is summarised at [10] above; see also fn 3.

[30]Applicant's Written Submissions, page 3, par 8.

[31]AB 466.8.

[32]AB 467.9.

[33]AB 469.5.

[34]AB 469.9. The punctuation has been corrected.

[35]Criminal Code, s 156 (1)(c), s 43AI (2).

[36]Shepherd v The Queen (1990) 170 CLR 573 at 579, per Dawson J.

[37]Respondent's Written Submissions, par 18. The multiple impacts are described in par [11] above. 

[38]This was a reference to the concession made by defence counsel at AB 456.5: “On behalf of Mr Morton, we are not saying he was so intoxicated he couldn't form an intention. That's exactly what we are not saying.”

[39]Applicant's Written Submissions, page 4, par 9.

[40]Applicant's Written Submissions, page 4, par 10.

[41]Applicant's Reply, page 2, par 7.  

[42]Respondent's Written Submissions, page 10, par 25.

[43]New South Wales Judicial Commission Criminal Trial Courts Bench Book - Trial Instructions [3-255] “Suggested intoxication direction – offence of specific intent”. (Underline emphasis has been added.)

[44]Victorian Criminal Charge Book, par 8.7.2 – “Charge: Intoxication and Intention”. (Underline emphasis has been added.)

[45]The Queensland Supreme Court and District Courts Criminal Bench Book contains a more general direction (No 84.1) which does not give any instruction beyond that intoxication “may be regarded” for the purpose of ascertaining whether the requisite specific intent existed. It continues: “If because of the evidence as to the effect of the intoxication or otherwise, you are not satisfied beyond reasonable doubt that the defendant did in fact form the necessary intent (here describe essence of necessary intent), you must find him not guilty of (insert description of offence where more than one is charged or available on the indictment).”  

[46]Extracted in full at [38] above.

[47]See R v Faure [1999] VSCA 166; 2 VR 537 at [23], per Brooking J; Winneke P and Ormiston J agreeing at [39], [40].

[48]AB 485.9-486.7.

[49]Applicant's Written Submissions, page 6, par 15.

[50]Viro v The Queen (1978) 141 CLR 88 at 112; Stephen J agreeing at 128-9, Jacobs J at 147 and Aickin J at 171-2. Italic emphasis forms part of senior counsel’s submission.

[51]Viro v The Queen (1978) 141 CLR 88 at 108-109.

[52]Viro v The Queen (1978) 141 CLR 88 at 111.

[53]Director of Public Prosecutions v Majewski [1977] AC 443 at 481.

[54]Coleman (1990) 47 A Crim R 306, at 323, 325, per Hunt J (Finlay and Allan JJ agreeing).

[55]Applicant's Written Submissions, page 7, par 17; Applicant's Reply, page 2, par 7.

[56]Coleman at 315.8-316.5.

[57]The definition of ‘malice’ included recklessness: in brief, a person would be taken to have acted “recklessly” for the purpose of the definition if he realised that some injury might possibly result but nevertheless proceeded to act.

[58]Coleman at 317.5.

[59]Coleman at 322.9-323.8

[60]Respondent's Written Submissions, par 23.

[61]Coleman at 325.3.