R v Graham

Case [2015] QCA 137

SUPREME COURT OF QUEENSLAND

CITATION:

R v Graham [2015] QCA 137

PARTIES:

R
v
GRAHAM, Mark James
(appellant/applicant)

FILE NOS:

CA No 286 of 2014
CA No 339 of 2014
SC No 632 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

Supreme Court at Brisbane – Unreported, 30 September 2014 (Conviction); 3 November 2014 (Sentence)

DELIVERED ON:

24 July 2015

DELIVERED AT:

Brisbane

HEARING DATE:

16 April 2015

JUDGES:

Morrison JA and Atkinson and Applegarth JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Appeal dismissed.

2.   Application for leave to appeal the sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where the appellant was convicted after a trial of attempted murder – where the defence of self- defence was raised at trial under ss 271(1), 271(2) and 272(1) of the Criminal Code – where the trial judge gave detailed directions to the jury about each form of self-defence – where the trial judge provided further directions to the jury at their request – where no redirection was sought at trial – whether the trial judge failed to properly direct the jury as to the defence of self-defence under ss 271(1), 271(2) and 272(1) of the Criminal Code

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where the appellant was convicted after a trial of attempted murder – where a direction on the defence of mistake under s 24 of the Criminal Code was not sought at trial – where the defence of mistake was first raised on appeal – where there was no evidence to support the jury being left with the defence of mistake – whether the trial judge erred in failing to direct the jury as to the defence of mistake under s 24 of the Criminal Code

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted after a trial of attempted murder – where the applicant was sentenced to 12 years and three months’ imprisonment with a serious violent offence declaration – where the applicant was young, had a minor criminal history, was in a stable relationship and had a good history of work, such that he had good prospects of rehabilitation – where the applicant asserted that the sentencing judge should have made particular findings of fact – where the sentence was imposed to reflect the overall criminality of the offending – where the offence occurred in a busy shopping centre and led to the wounding of an innocent bystander, as well as the intended target – where the offence involved the use of a firearm – where the applicant had sought out the confrontation, then committed…

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AGLC
R v Graham [2015] QCA 137
Case
[2015] QCA 137
Decision Date

CaseChat Overview and Summary

In this appeal, the appellant, Mr Graham, contested his conviction for attempted murder and sought leave to appeal his sentence. The central issues revolved around whether the trial judge misdirected the jury on the defence of self-defence and whether the judge should have directed the jury on the defence of mistake. Additionally, Mr Graham argued that the sentence imposed was manifestly excessive.

The court examined the evidence presented during the trial, which showed a confrontation between Mr Graham and another man, Mr Teamo, at a busy shopping centre. Both men were armed, and the incident resulted in shots being fired, injuring both Mr Teamo and an innocent bystander. The trial judge had provided detailed directions to the jury on self-defence, and no redirection was sought at trial. The court found no error in the trial judge's summing up, as the directions provided were correct and the jury was adequately guided on the issue of assault and self-defence.

Further, the court held that there was no evidentiary basis for the jury to consider the defence of mistake under section 24 of the Criminal Code. The trial judge was not required to direct the jury on this defence, and the failure of defence counsel to raise it did not constitute an error. The appeal against the conviction was dismissed.

Regarding the sentence, the court found that the 12 years and three months’ imprisonment imposed was appropriate given the gravity of the offence. The sentencing judge considered the overall criminality of the offences, the use of a firearm in a crowded public place, and the lack of remorse shown by Mr Graham. The court concluded that the sentence was not manifestly excessive, and the application for leave to appeal the sentence was refused.

The final orders of the court were to dismiss the appeal against conviction and to refuse leave to appeal the sentence.

Orders

Orders of the court

1. Appeal dismissed.

2. Application for leave to appeal the sentence refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The appellant has appealed against the convictions on counts 1 and 3 and made an application for leave to appeal against sentence. At the commencement of the hearing in this court, an order was made extending the time for filing the application for leave to appeal the sentence to 19 December 2014, the date on which it was filed, and the appellant was also given leave to amend the Notice of Appeal. Leave to amend the Notice of Appeal was necessary to allow the appellant to abandon the grounds appearing in the Notice of Appeal and replace them with the following:“In light of the case put by the Crown to the jury on the issue of self-defence, the trial judge failed to:(i)Properly identify the ‘assault’ to which self-defence was made, namely the threatened application of force constituted by the production of the flick knife;(ii)Direct the jury on the issue of ‘consent’ to the ‘assault’ to which the appellant made self-defence; and in particular;a. Failed to direct the jury that the issue was not whether the appellant had consented to some threat of violence antecedent to the relevant ‘assault’; andb. Failed to direct the jury that consent arose as an issue only in relation to consent to the particular assault to which self-defence was made;(iii)Failed to direct the jury that there was no evidence upon which they could conclude that the appellant had consented to the threat of violence constituted by the production of the flick knife;(iv)Failed to leave s 24 of the Code for the consideration of the jury as to whether the appellant was honestly and reasonably mistaken that the production of the flick knife was a threat of violence.”Evidence at the trial The evidence led at the trial showed that the offences occurred in the early afternoon of 28 April 2012 at the Robina Town Centre, a shopping complex on the Gold Coast. It was a typical Saturday afternoon in a busy shopping centre crowded with families and other people shopping, when a confrontation between two members of different “bikie gangs” ended with one of them and an innocent bystander being shot. Fortunately, no one was killed. The appellant, Mr Graham, went to the shopping centre on a shopping trip with family members. Another man, Mr Teamo, was by coincidence at the shopping centre with his two young sons. Both Mr Graham and Mr Teamo were armed. Mr Teamo was carrying a knife in a Louis Vuitton shoulder bag which had a strap across his chest and sat on his right hip. The appellant was carrying a hand gun in a pouch-type bag on a belt on his waist. They apparently encountered each other by chance. CCTV footage from various cameras within the shopping centre, as well as evidence from eyewitnesses and admissions made by the appellant, established what happened. Mr Teamo entered a Sony store in the shopping centre. He was holding the hand of his younger son and had a David Jones bag in his other hand; his older son was walking close behind pushing a shopping trolley. Mr Teamo was standing at the counter near to the entrance to the Sony store when the appellant strode past outside the store. He was alone and not carrying any shopping.

Decision

Reasons for decision

In this case, there is no evidentiary basis for suggesting that the appellant had an honest and reasonable but mistaken belief that the production of a flick knife was a threatened application of force when it was not in fact a threatened application of force. It was not necessary for the learned trial judge to refer to s 24 in his summing up and the failure of defence counsel to raise on the trial any suggestion that his Honour should so direct is consequently understandable.Conclusion There was no error made in the careful summing up given by the learned trial judge. The appeal should be dismissed.Application for leave to appeal against sentence The application for leave to appeal against sentence is only with regard to the 12 years and three months’ imprisonment imposed on count 1. It should be noted that the learned sentencing judge imposed this sentence on count 1 to reflect the applicant’s overall criminality for each of the three offences, including the offence of unlawful wounding with intent to cause grievous bodily harm. As the sentencing judge observed, that offence led to the wounding of an innocent bystander during a violent affray in a public place. In order to demonstrate that the sentence imposed was manifestly excessive, the applicant submitted that the learned sentencing judge should have made findings which would lead to a conclusion that self-defence was excluded only on the basis that excessive force was used in self-defence to a life threatening assault by an aggressive man armed with a knife. There was, in my opinion, no reason why the sentencing judge was obliged to accept such an exculpatory explanation for the applicant’s behaviour. What was of most significance were the facts to which the learned judge referred. The offence of attempted murder in this case exhibited a number of egregious characteristics. It involved the use of a gun in a crowded shopping centre, which was likely to kill or injure not only the applicant’s intended target, but also members of the public going about the activities of ordinary daily life. The applicant had gone into the shopping centre armed with a concealed loaded handgun. He could have avoided any confrontation with Mr Teamo but chose to engage in such confrontation. If, at some point, he felt compelled to defend himself, his response was “grossly disproportionate and excessive and unjustified and unwarranted.” At the point when Mr Graham shot Mr Teamo, Mr Teamo was backing away in retreat. Such behaviour as Mr Graham’s warrants strong condemnation by the court. The applicant had a criminal history for minor drug offences and was on bail for possession of an unlawful handgun and possession of body armour. Those offences were committed in November 2011. He was convicted of them and sentenced in January 2014 to a wholly suspended period of imprisonment of six months on the firearms charge. Personal factors in the applicant’s favour include that he had conducted profitable tattoo businesses employing a number of people and he was in a stable relationship at the time of sentencing. The learned sentencing judge referred to submissions suggesting that the applicant had reasonable prospects of rehabilitation. The applicant did not, however, have the ameliorating effect of being sentenced on a plea of guilty.

Ratio Decidendi

Legal Principle Established

The appellant submitted that the trial judge should have clearly identified the relevant assault as being the production of the flick knife; directed the jury that the production of a flick knife could be found by them to be a threatened application of force; directed the jury on s 24 of the Code to the effect that, if the production of the knife was not a threatened application of force, but the appellant honestly and reasonably mistook it to be so, then the jury had to proceed on the basis that there was an assault; directed the jury that there would be no assault for the purpose of s 271 and s 272 only if the appellant consented to the particular assault; directed the jury that there was no evidence upon which they could find that the appellant consented to being threatened with the flick knife; and directed the jury that the real relevance of the antecedent confrontation was to issues arising under s 24 and to the reasonable necessity to make defence or the belief and the reasonableness of the belief that the appellant had to use force to make defence.Consideration The appellant’s submissions simplify the submission actually made by the prosecutor at trial. The prosecutor’s submission to the jury about whether or not there was an unlawful assault was based on two alternative findings of fact which were open to the jury. If the knife was drawn before the gun, was threatening each other with weapons part of the consensual confrontation?[3] If the gun was drawn first, was that provocation for Mr Teamo to pull out his knife? These were questions that the jury could consider in deciding whether or not there was an unlawful assault, and whether or not any such assault was provoked.[3]R v Raabe (1984) 14 A Crim R 381 at 382, 384, 386, 389. As can be seen by the documents handed to the jury by the learned trial judge about each of the three types of self-defence, the first matter that the jury had to be concerned with was the question of whether or not Mr Teamo assaulted Mr Graham before Mr Graham shot Mr Teamo. As the learned trial judge correctly pointed out to the jury, assault “does not have to involve actual physical assault: a movement or gesture may constitute an assault, but more than that: … a threat to apply force of any kind … under such circumstances that the person has, actually or apparently, a present ability to affect the person’s purpose … can constitute an assault.” Whether or not there was an assault was a factual question that the jury had to determine. The Crown Prosecutor correctly pointed out that lack of consent was an essential element of the offence of assault. There was no further need for the issue to be addressed by the trial judge and neither counsel asked him to do so whether by way of emphasis or correction. The trial judge provided the jury with the correct legal test as to the meaning of assault and directed them correctly as to the relevance of whether the gun or the knife was drawn first, inviting the jurors to make up their own minds about that. The answer to those factual questions was within the province of the jury. The issue was put fairly and correctly by the trial judge and there was nothing about the Crown Prosecutor’s characterisation of this issue in his submissions which needed to be corrected by the judge. They were, after all, as his Honour told the jury, not evidence but “matters of interpretation, construction and argument” put to them by the Crown Prosecutor.