R v BCM

Case [2015] QSC 43

SUPREME COURT OF QUEENSLAND

CITATION:

R v BCM [2015] QSC 43

PARTIES:

R
(Crown)
v
BCM
(Defendant)

DIVISION:

Trial

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

13 March 2015

DELIVERED AT:

Brisbane

HEARING DATES:

9, 10, 11 and 12 February 2015

JUDGE:

Dalton J

VERDICT:

The defendant is guilty of attempted murder

COUNSEL:

Ms S Farnden for the Director of Public Prosecutions

Mr R East for the defendant

SOLICITORS:

Office of the Director of Public Prosecutions for the Crown

Legal Aid Queensland for the defendant

Charges and Verdict

  1. On 15 August 2014 an indictment was presented in this Court charging BCM that on the 29th day of August 2013 he attempted unlawfully to kill the complainant. 

  2. On the first day of trial a new indictment was presented to the Court adding an alternative charge that BCM, with intent to maim, disfigure or do some grievous bodily harm to the complainant, unlawfully wounded the complainant, and, in the further alternative, that BCM unlawfully wounded the complainant.

  3. When arraigned, BCM pleaded guilty to the charge of unlawful wounding.  He pleaded not guilty to the other two charges.

  4. My verdict is that the defendant is guilty of the charge of attempted murder.  What follows are my reasons for this verdict.

    Trial by Judge Alone

  5. On 21 November 2014 A Lyons J ordered that BCM be tried by a judge sitting without a jury.  The trial before me took four days.  The defendant elected to give evidence, and to call his mother as a witness.

    Anonymity

  6. The defendant in this matter was a child at all material times, and is still a child.  The same can be said of the complainant and several of the witnesses.  Accordingly I have used initials rather than names where appropriate. 

    Impartiality

  7. The defendant was and is a slight child who looks smaller and younger than his years.  He was 14 at the time of the stabbing I am concerned with, and 16 at the time of trial.  He sat at the Bar table during the trial.  His father sat immediately behind him, as did his mother once she had given her evidence.  Had there been a jury I would have warned them to make a dispassionate consideration of the evidence, not influenced by sympathy or prejudice, and I have borne in mind my duty to do that, notwithstanding my natural inclination was to feel sympathy towards the defendant’s family.  And notwithstanding the grave nature of the charges against such a young defendant. 

  8. The trial was ordered without a jury on the basis of medical evidence.  As I mentioned during the course of the trial, I briefly perused the reasons of A Lyons J and briefly looked at some of the medical evidence she had before her.  There was no medical evidence led before me, and I am well aware that I did not have the benefit of expert views or cross‑examination of experts.  In these circumstances, I disregarded the material from the earlier application…

Continue reading R v BCM

Sign in free to access the full text

Details
AGLC
R v BCM [2015] QSC 43
Case
[2015] QSC 43
Decision Date

CaseChat Overview and Summary

In the case of R v BCM, the defendant was accused of stabbing the complainant, a fellow student, under circumstances that required the court to consider the defendant's state of mind at the time of the incident. The case was heard in a relevant Australian court, which tasked itself with determining whether the Crown had successfully proven the defendant's guilt beyond reasonable doubt, given the circumstantial nature of the evidence presented. The primary legal issue was whether the Crown had met its burden of proving that the defendant's guilt was the only rational inference that could be drawn from the circumstances surrounding the stabbing.

The court meticulously assessed the evidence provided, particularly the testimonies of the defendant, the complainant, and another child witness. It highlighted the necessity of considering the immaturity of the witnesses, both at the time of the incident and during their testimonies. The court paid careful attention to the recordings of police interviews and the defendant's interactions with emergency services, ensuring it did not give undue weight to these recorded statements. The court found the defendant's account credible, detailing his thoughts and actions leading up to the stabbing, including his belief that the complainant was bullying him and his intention to scare the complainant by brandishing a knife.

Concluding its reasoning, the court determined that the defendant's intention to scare the complainant by pulling out a knife constituted a form of assault, even though the stabbing itself was an unintended escalation. The court found the defendant guilty of assault occasioning bodily harm, acknowledging the complexity of the case and the need for a careful assessment of the evidence and the defendant's state of mind. The court's decision was based on a thorough analysis of the circumstances and the testimonies provided, ensuring that the defendant's rights were respected throughout the proceedings.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Little was in contest in this trial except the state of the defendant’s intention at the time he stabbed the complainant. Therefore, the Crown case was (in practical terms) a circumstantial one and the Crown thus bore the burden of proving that guilt was not only a rational inference in all the circumstances, but was the only rational inference that could be drawn in all the circumstances. Background Relationship between the Defendant and the Complainant The defendant and the complainant were both in Grade 10 at the time of the stabbing. They had known each other since Grade 8 (t 5-35). They had friends in common but were not themselves friends (t 5‑35). Towards the end of Grade 9 there was some conflict between them which resulted in a physical scuffle (t 5‑40.) The defendant said that after the incident the complainant would remind him of his weakness in the scuffle (t 5-53). The defendant said that after that scuffle he avoided the complainant. He did not believe the altercation was in the normal run of schoolboy conflict (t 5-54). Apart from one occasion where they were in a group playing together (tt 5-40‑41), the complainant and defendant then had little direct contact until the day before the defendant stabbed the complainant (t 5‑41). I accept all this evidence. The defendant said that he thought the actions of the complainant were “really mean” and saw that “it was just going to get worse, if he, like, picks on people who’re smaller than him.” (t 5-40). The Day before the Stabbing On the day before the stabbing one of the other students gave the defendant a jar of marshmallow fluff. That is apparently something like jam which the students were in the habit of eating from the jar. The complainant demanded the marshmallow fluff from the defendant who refused to give it to him. The defendant hid it, but the complainant found it. When the defendant discovered this, there was a physical altercation between them which a teacher broke up (t 5‑41). The marshmallow fluff was returned to the defendant (t 5‑41). He ate it going home in the car that afternoon (t 5-42). The defendant said that he thought about the incident when he got home, and during the night, and it made him angry (tt 5-57-58). The defendant’s parents were divorced. His mother (with whom the defendant lived, or lived most of the time) had lived with a man, B, between April 2011 and September 2012. B had been violent towards the defendant’s mother (t 5‑75). The defendant says he thought of how B became more abusive over time in the context of the complainant’s behaviour (tt 5‑42-43). I accept all this evidence. The defendant said he, “was just thinking he’s [the complainant’s] going to keep on getting, like, worse and worse … and I was thinking … maybe I can stop him from doing this, like scare him somehow or something …” (t 5-42). The Morning of the Stabbing The defendant said that on the morning of the day he stabbed the complainant he was trying to think of something to take to school to scare the complainant. He said that he initially thought of using a pin[3] to scare him, but “there wasn’t a pin”. He said he then considered using tweezers, but he thought that was a poor choice because, “… he’d probably be like what are you going to do? Pluck my eyebrows with that or something …” (t 5-43). He said he then went to the kitchen to get a drink of water and then his mother hurried him along to go to school, “So I just, like, quickly opened a drawer and grabbed a knife and put it in my blazer – blazer pocket.” (t 5-44). He said that when he decided to take the knife to school, he was going to “pull the knife on him and … just say, like, I will hurt him if he keeps on harassing people. That was, like, my original thought, and then, yeah, it changed later” (t 5-44). [3] Wrongly transcribed as pen; cf t 5-60.

Evidence

Evidence Before The Court

The defendant attempted to run a case that the complainant was a bully. There was conflicting evidence about this (for example t 5-9). I do not make any finding that the complainant was a bully – it is not necessary that I do so for my conclusions, and I do not think I had sufficient reliable evidence on which to make such a finding. Again, had I been directing a jury I would have warned them of the need not to be prejudiced and to act dispassionately on the evidence. Evidence from Children The complainant was 15 at the time of the stabbing and 16 at the time he gave evidence. The complainant gave evidence as a special witness. He gave evidence from a suite at the courthouse via video-link. He had a support worker with him. The defendant sat in a position in the courtroom which meant the complainant could not see him. Those measures were as a result of an order made by another judge before the trial began. There is nothing out of the ordinary in this and it has not caused me to draw any inference against the defendant. It is something I would have warned the jury about had there been one. I gave the evidence of the complainant no greater or lesser weight because of the course adopted, nor do I regard it as having any greater or lesser probative value. The crucial evidence in this case came largely from three children: the defendant, the complainant and the child I have called A. I have been alert, and have taken particular care, when assessing their evidence to allow for their immaturity both at the time of the stabbing – when the complainant and A gave statements to the police – and at the time they gave evidence at the trial. I have applied this same care to the defendant’s statements to the triple 0 operator and to police after the stabbing. Other witnesses in the case were children and, of course, I have applied the same approach to their immaturity. The complainant’s evidence‑in‑chief was given by way of the tender of recordings of interviews with police pursuant to s 93A of the Evidence Act 1977 (Qld). So was the evidence-in-chief of A and other child witnesses. Again, I regarded this as routine and did not draw inferences against the defendant or accord any greater or lesser weight or probative value to the evidence because of this procedure. I had the s 93A statements as recordings, and for convenience, transcripts of them, during the time I reserved my decision. I was aware that it was the recordings which were evidence, not the transcripts. Had there been a jury, and had I allowed them to have the s 93A recordings and transcripts, I would have warned them not to give disproportionate weight to this evidence. Things were somewhat different for me sitting alone, as I had the written transcript of all the evidence in the trial.[1] I also had the recordings (and transcripts) of the defendant’s call to triple 0 and initial interaction with the police.[2] Nevertheless, I have borne in mind that I should not give undue weight to any part of the evidence which I had in recorded form.[1] Of course, this was not the evidence, but a transcript of it, the evidence was what I saw and heard. There were a couple of parts of the transcript which I listened to as a recording, either because I doubted its accuracy or because it recorded “indistinct”. I did not hear anything materially different from what is in the written transcript.[2] I record my awareness that it is the recordings, not the transcripts which are evidence and that I listened to parts of these recordings again, rather than rely on the transcripts.Burden of Proof, Onus of Proof, and Circumstantial Case

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.