R v Hughes

[1994] QCA 554

IN THE COURT OF APPEAL	[1994] QCA 554
SUPREME COURT OF QUEENSLAND

C.A. No. 283 of 1994.

Brisbane

BeforePincus J.A.
Davies J.A.

Cullinane J.

[R v. Hughes]

T H E Q U E E N

v.

MICHAEL WILLIAM HUGHES

(Appellant)

PINCUS J.A.

DAVIES J.A.

CULLINANE J.

Judgment delivered 21/12/94

Separate reasons for judgment by each member of the Court. All concurring as to the orders to be made.

APPEAL ALLOWED. CONVICTION SET ASIDE AND A NEW TRIAL ORDERED.

CATCHWORDS:CRIMINAL LAW - MURDER - SUMMING UP - Appellant stabbed deceased - prior to relevant act appellant suffered blow to head and was intoxicated - intention to cause death or grievous bodily harm - jury invited to consider whether in consequence of blow or intoxication appellant had capacity to form relevant intent - whether direction caused trial to miscarry

CRIMINAL LAW - MURDER - MISDIRECTION - meaning of intent - jury directed that intention involves desire to produce result, and foresight, foreseeability or capacity to foresee consequences - whether jury may have been misled into thinking that relevant intention is established by their satisfaction with respect to such matters - whether direction caused trial to miscarry

Counsel:	Mr. T. Carmody for the appellant Mr. B. Butler and Mr. R. Martin for the
respondent
Solicitors:	Legal Aid Office for the appellant Director of Prosecutions for the respondent

Hearing Date: 26 September 1994

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 21/12/1994

I have read the reasons of Davies J.A. and those of Cullinane J.

Their Honours have set out the passages in the summing-up which are principally complained of. It is not every substantial slip or inaccuracy in a summing-up which will vitiate a verdict; it may appear clearly enough that the jury, if they attended to what was being said, must have understood what they had to decide. Unfortunately, in the present case, I am unable to feel the requisite confidence on that subject. Illustrations of the parts of the summing-up which have caused me concern are the following, which are to be found in their context set out in the reasons of Cullinane J:

"You may conclude that the blow on the head may be capable of causing and may have caused some degree of mental confusion which, whilst not making his whole act itself involuntary or unwilled, might have affected his capacity to foresee the consequences, which is what intention to do something is all about. As I have said before, it is an intention or desire to cause a result, some element of foresight of the consequences".

"You should also consider the effect of the head injury on him which might have affected his capacity to form the intention to kill or do grievous bodily harm. As I have said earlier, it is not the same question posed in relation to whether his act was a voluntary or willed act. Here it depends upon the foreseeability of the consequences, the desire to produce a result".

It is no doubt true that ordinarily a person who intends to produce a result desires to produce it, but the two concepts are simply not the same. Further, the significance of the mention of foresight of the consequences was by no means made clear; what his Honour said might have induced the jury to think that if that element, or a desire to produce a result, was shown that was enough.

Although it would have been surprising if there had been an acquittal on the ground of failure to establish the necessary intention, the appellant is entitled to a new trial, as the possibility that a properly instructed jury might have had a doubt about intention cannot be ruled out.

With respect to the decision in Crozier (1965) Qd.R. 133, it seems to me that the statement of the "correct direction" at p. 134 is wrong and should not be followed; the first part of it implies that the Crown might show that "through intoxication the prisoner was capable of forming an intent", which makes little sense. Perhaps what was meant was "if you are not satisfied...that although intoxicated the prisoner was capable of forming an intent", but it is evident that there is an error - perhaps one in transcription - in the passage.

I agree that the judge should not have left provocation to the jury, and agree with the orders proposed by Davies J.A. and Cullinane J.

REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered the Twenty-first day of December 1994

On 30 June 1994, after a trial which lasted 17 days, the
appellant was convicted of the murder of Todd Terrence Ward on 1
August 1993 at Mooloolaba. He appeals against that conviction.
There is no doubt that on that night the appellant stabbed
Ward in the right-hand side rupturing a kidney and severing an
important blood vessel and that Ward died from the wound so
inflicted. The appellant's ground of appeal questioning the
identification of the appellant was abandoned. In the end two
grounds of appeal were pursued. The first concerned the
directions given by the learned trial judge with respect to
intent and specifically intoxication in the light of s.28 of the

Criminal Code. The second was the failure of the learned trial

judge to allow the issue of provocation to go to the jury.

The circumstances giving rise to the death of the deceased were as follows. On the night in question several groups of persons were at the Ettamogah Hotel. One of those groups consisted of members of the Odins Warriors bikie gang. The appellant was one of these. The deceased was also present though not in that group. He was an off duty manager of the Mooloolaba Hotel. Late in the evening about a dozen persons, including the appellant, some other members of his gang and the deceased, travelled to the Mooloolaba Hotel where the deceased arranged for them all to obtain free entry to the hotel's nightclub. Some time after midnight at that nightclub several associates of the appellant apparently verbally harassed a young woman who was a friend of the deceased. The deceased intervened during the course of which he apparently struck the appellant twice. Several of the nightclub's "bouncers" then intervened and the appellant and several of his associates, as well as the deceased, were ejected from the nightclub. The appellant was apparently ejected forcibly during the course of which he tripped or was pushed into a wall outside the nightclub hitting his head forcibly on the wall. He may have been rendered unconscious by the blow to his head when he struck the wall.

A short time later on the footpath and partly on the road in front of the nightclub another member of the bikie gang challenged the deceased to a fight. There was evidence that the deceased had apparently accepted the challenge and was moving forward towards the challenger when the appellant came from the deceased's right and stabbed him with his knife. The knife was apparently a folding knife which the appellant carried and which he must have unfolded shortly before his fatal attack.

The appellant, prior to his attack, had consumed a considerable quantity of alcohol. He had also, as I have already mentioned, received a quite severe blow to his head which may have rendered him unconscious. A question for the jury, upon which the learned trial judge's direction was attacked on appeal, was whether, at the time he attacked the deceased, the appellant intended to kill him or to do him grievous bodily harm; in particular whether, because of his intoxication, the appellant lacked that intent.

The appellant made two criticisms of the learned trial judge's directions in this respect. First he submitted that they invited the jury to consider whether, in consequence of his intoxication, the appellant had the capacity to form the relevant intention; whereas he should have told them that they should consider, not whether he was capable of forming that intention, but whether he in fact had that intention. Secondly the appellant submitted that the learned trial judge was wrong in directing the jury, on the question of intention, in terms of foresight. This, it was submitted, tended to suggest that foreseeability, or even actual foresight, of death or grievous bodily harm as a consequence of his action was sufficient proof of the existence of the relevant intention.

As to the first of these, though evidence of incapacity to form the relevant intention, whether because of intoxication or concussion from the blow to his head, would be evidence that the appellant did not have that intention, it is the existence of actual intention which must be proved and to which intoxication and the effect of the blow are relevant. See Thomas v. The Queen (1960) 102 C.L.R. 584 at 597; Reg. v. Crump [1966] Qd.R. 340 at 343, 346.

In the present case his Honour, in the course of a very long summing-up, on a number of occasions referred to capacity and the necessity to negative capacity to form the relevant intention. And he did not refer to those terms only in the context of the absence of capacity being evidence (though not the only evidence) of absence of actual intention. Thus his Honour said (at 1204):

"In this regard you consider the effect, if any, on his capacity to form the intention and whether an intention in fact existed as a result; that is, of alcohol and the blow on his head, again depending on your view of the evidence on both of those issues. You may conclude that the blow on the head may be capable of causing and may have caused some degree of mental confusion which, whilst not making his whole act itself involuntary or unwilled, might have affected his capacity to foresee the consequences, which is what intention to do something is all about.

As I have said before, it is an intention or desire to cause a result, some element of foresight of the consequences."

Of course intention is much more than capacity to foresee the consequences; but the jury could have been misled by his Honour's statement into thinking that if the Crown proved capacity to foresee the consequences it proved the relevant intention. His Honour continued:

"Now, the Crown must negative the effect of intoxication and head injury on the capacity to form the requisite intention and negative the existence in fact of any requisite intention."

The problem with this statement is that it is open to the construction that, when considering specifically the effect of intoxication or the head injury, the jury need to consider only whether either affected the appellant's capacity to form the relevant intention. Of course that was not correct. Even if intoxication did not affect the appellant's capacity to form the relevant intention it was still relevant to the question whether or not he in fact had that intention.

Much later in his directions the learned trial judge asked

the question:

"Did his state of sobriety deprive him of the capacity to form one or other of these two intentions and did such an intention in fact exist as a result of intoxication, to whatever extent he might have been intoxicated?"

At the very least this question would have confused the jury. The first part of it was a relevant question to ask provided it was made clear that its relevance was in that it negatived actual intention. The second part of the question does not appear to make sense. What his Honour may have had in mind was to ask whether intoxication nevertheless caused or contributed to the absence of a relevant intention.

A few sentences later his Honour said:

"However, in cases where a specific intention is a necessary element of an offence, such as murder, you can have regard to the effect of any intoxication on his capacity to form that intention and to a decision as to whether that intention in fact existed."

A similar difficulty exists with this passage. It fails to make the point clearly that the question is whether a relevant intention actually exists and the effect which intoxication may have on the existence of that intention.

I think that the learned trial judge's summing-up as a whole fails to make this point and that this failure may have caused the trial to miscarry. For that reason alone the appellant is, in my view, entitled to have the conviction set aside and a new trial ordered.
I turn now to the second criticism with respect to intention. This was that the learned trial judge directed the jury wrongly in terms of foresight.
There are difficulties in attempting to explain to the jury what is meant by intention. It is a plain English word and attempts to paraphrase it can lead to confusion and, in some cases, to the jury being misled.

The learned trial judge, in the course of his directions,

said (at 1200):
"... Intention to produce a result involves a desire to

produce a result. It involves an element of foresight
of the consequences ..."

The first of these statements is incorrect. Desire is not an element of intention: R. v. Willmot (No. 2) [1985] 2 Qd.R. 413 at 418. On the other hand it is probably correct to say that intention involves an element of foresight of the consequences.

I referred earlier also to the passage in which his Honour said that capacity to foresee the consequences is what intention to do something is all about. That passage is also open to criticism under this heading also in that, although foresight of the consequences may be evidence from which intention may be inferred, mere capacity to foresee them is not sufficient.
I doubt whether his Honour's directions merely on the question of foresight would have amounted to a misdirection. Foresight of death or grievous bodily harm would, as I have said, be some evidence of intention to cause that consequence. And the passages to which I have referred are consistent with saying no more than that. And whilst his Honour's statement that a desire to produce a result is a necessary element of intention was a misdirection, it was one which favoured the appellant.
I turn now to the other ground; the failure of the learned
trial judge to allow the issue of provocation to go to the jury.
The sequence of events, in summary, appears to have been as
follows. Some time shortly after midnight, in the nightclub,
the deceased struck the appellant several blows with his fists.
The parties were separated and some short time later both were
ejected from the nightclub, the appellant forcibly so. During
the course of this the appellant struck his head and may have
been unconscious for a short time. The challenge by another
member of the bikie gang to the deceased to fight took place, on
the evidence of one witness, 10 to 15 minutes and on the
evidence of another, half an hour after the altercation between
the deceased and the appellant in the nightclub. On this
occasion the appellant must have unsheathed his knife, unfolded
it and then run at the deceased. This lapse of time and these
deliberate acts are inconsistent with the stabbing being in the
heat of passion, caused by the provocation of the deceased's
blows, and before there was time for the appellant's passion to
cool. More importantly, even if that were consistent with those
necessary elements of the defence, no jury acting reasonably
could fail to be satisfied beyond reasonable doubt that the
appellant's reaction to those blows fell below the minimum
limits of the range of the powers of self control which must be
attributed to any hypothetical ordinary man: The Queen v.
Buttigieg (C.A. No.108 of 1993, judgment delivered 11 June 1993,
at 27). The learned trial judge was therefore correct in
declining to direct the jury on provocation.

However, for the reasons which I gave earlier, the appeal should be allowed, the conviction must be set aside and a new trial ordered.

REASONS FOR JUDGMENT - CULLINANE J.

Judgment delivered the Twenty-first day of December 1994

The circumstances of the offence of which the appellant was convicted are set out in the reasons of Davies J.A.

The first complaint made by the appellant about His Honour's directions to the jury concerned the issue of intoxication. In the course of an extensive summing up the learned trial Judge referred to this question on a number of occasions. It should be mentioned that the appellant apparently had suffered a blow to the head and the question of the voluntariness of his actions had been raised in his defence. This factor is necessary to an understanding of some of the passages set out below in which His Honour refers to the question of intoxication and intention.

On the question of intoxication His Honour said at p.1204:

"In this regard you consider the effect if any, on his capacity to form the intention and whether an intention in fact existed as a result; that is, of alcohol and the blow on his head, again depending on your view of the evidence on both of those issues."
And later at p.1204:
"Now, the Crown must negative the effect of intoxication and head injury on the capacity to form the requisite intention and negative the existence in fact of any requisite intention."
At pp.1284 and 1285 His Honour returned to the subject:
"Now when you consider intention there are two matters I must mention. The first relates to intoxication. Where an intention to cause a specific result is an element of an offence, intoxication, whether complete or partial, (sic) whether intentional or unintentional, may be regarded for the purpose of ascertaining whether such an intention existed. Did his state of sobriety deprive him of the capacity to form one or other of these two intentions and did such an intention in fact exist as a result of intoxication, to whatever extent he might have been intoxicated?

Remember that drunkenness is never an absolute defence unless it amounts to unsoundness of mind. There is no suggestion of that here whatever. You might think that there is a sense of justice in that notion because why should a person who becomes intentionally drunk escape all criminal responsibility? However, in cases where a specific intention is a necessary element of an offence, such as murder, you can have regard to the effect of any intoxication on his capacity to form that intention and your decision as

to whether that intention in fact existed. Remember also that when a person is drunk or intoxicated he may be capable of forming an intention. There can be a drunken intention."

At p.1286:
"I do not propose to outline all of the evidence which bears upon the question of the extent, if any, to which he may have been affected by alcohol. You must take into account all of the evidence and decide whether he was affected by it, and to what extent, whether it affected or diminished his capacity to form a specific intention and whether such an intention to kill or do grievous bodily harm in fact existed at all at the time of the movement forward with the arm thrust out, his movement away, changing something in his hands, dropping something, and moving off until seized. So, if considering all of that evidence you conclude that he was still capable of forming the requisite intent either to kill or do grievous bodily harm, and not meaning merely to scare Ward or scratch him or wound him, and you conclude that he formed the requisite intention, the verdict would be one of murder and not manslaughter."
Finally at p.1287:

"The Crown, as I said, must prove the existence of the specific intention to kill in fact and must negative the effects, if any, of intoxication and head injury on his capacity to form that intention."

It may be that the these passages standing alone would not be an adequate direction on the issue of intoxication as it directs attention only to one of the relevant considerations on this issue and makes no reference to the question whether an intention in fact existed. However the directions must be looked at as a whole.

Where intoxication is raised on the evidence as it was in this case, it is for the Crown to satisfy the jury beyond a reasonable doubt that an accused person had the capacity to form an intention and that the accused person did in fact form such an intention. See R. v. Crozier [1965] Qd.R. 133.

It is said by the appellant that His Honour's directions to the jury confined attention only to the question of capacity and not to the question of whether an intention in fact was formed.

As I have said the last of the passages set out above might, standing alone, support this complaint. However, His Honour on no less than four occasions when speaking of alcohol or in one instance alcohol and the blow to the head, directed the jury that the relevant considerations were whether the appellant had the capacity to form an intention and whether he did in fact do so.
It may be said that in one of the passages His Honour when speaking of the question whether an intention in fact existed "as a result of intoxication" may have used a somewhat confused expression but I am not convinced that looking at the directions as a whole the jury were diverted from a proper consideration of the relevant issues on the question of intoxication.
The second complaint made by the appellant concerned His Honour's directions on the issue of intention.

His Honour first dealt with this matter at p.1200:

"The consequences are not relevant in that case but intention to produce a result involves a desire to produce a result. It involves an element of foresight of the consequences and is different therefore from any mental element or state or condition necessary to show that the act itself was willed or voluntary."

He returned to the subject of intention at p.1204 in a passage which includes a passage already set out. It is however convenient to set out the whole of this passage.

"The first is that of murder and that is the charge on which the Crown primarily relies and on which the Crown asks you to find the accused guilty. This involves an unlawful killing with the intention to kill or do grievous bodily harm. You must then address the question of whether he had either of those intentions. In this regard you consider the effect, if any, on his capacity to form the intention and whether an intention in fact existed as a result; that is, of alcohol and the blow on his head, again depending on your view of the evidence on both of those issues. You may conclude that the blow on the head may be capable of causing and may have caused some degree of mental confusion which, whilst not making his whole act itself involuntary or unwilled, might have affected his capacity to foresee the consequences, which is what intention to do something is all about. As I have said before, it is an intention or desire to cause a result, some element of foresight of the consequences.

Now, the Crown must negative the effect of intoxication and head injury on the capacity to form the requisite intention and negative the existence in fact of any requisite intention. If you have no reasonable doubt that he had the capacity at the time to foresee the consequences of his act or that he desired to produce a particular result, and that he formed the necessary intention to kill or to do grievous bodily harm, that is at the time of the act itself and at no other time, and not merely an intention to nick him or to hurt him in a lesser way, merely to wound him or to frighten him, then you should, true to your oaths, find him guilty of murder.
As I said, this is the primary case for the Crown, but if you have a reasonable doubt about whether he had one or other of the required intentions, that is to kill or to do grievous bodily harm, he is not guilty of murder but is guilty of manslaughter, because manslaughter involves an unlawful killing without any element of intention."
At p.1287:

"You should also consider the effect of the head injury on him which might have affected his capacity to form the intention to kill or do grievous bodily harm. As I said earlier, it is not the same question posed in relation to whether his act was a voluntary or willed act. Here it depends upon the foreseeability of the consequences, the desire to produce a result."

As Davies J.A. points out it is not correct to say that an intention to produce a result involves a desire to produce a result as His Honour appears to have instructed the jury at p.1200. See R. v. Wilmott (No.2) [1985] 2 Qd.R. 413.

No doubt a desire to bring about a particular result is a relevant consideration when considering the question of whether an intention existed but it cannot be elevated to an element of intention. Similarly foresight, foreseeability and the capacity to foresee (His Honour used each of these terms in his directions) are all relevant considerations when considering whether an intention existed in fact. However, proof of all or any one of these even if accompanied by a desire to produce a result cannot be equated with proof of intention.
In my view His Honour's directions to the jury on intention give rise to the concern that His Honour in directing the jury in the terms I have already referred to may have led the jury to conclude that the question of the appellant's intention was to be determined or was capable of resolution by reference to his desire to achieve a particular result and his capacity to foresee the consequences of his actions, or the foreseeability of those consequences or the appellant's foresight of the consequences. As will be seen His Honour referred to each of these in his directions.

His Honour at p.1204 instructed the jury that if it had no reasonable doubt that the appellant had the capacity at the time to foresee the consequences of his act or that he desired to produce a particular result and that he formed the necessary intention to kill or to do grievous bodily harm, it should find the appellant guilty of murder. It might be that any error in this direction is favourable to the appellant because it overstates what the Crown has to establish. However taken with the other directions the concern expressed above is not diminished. At best, it would have conveyed to the jury that a desire to achieve a particular result and a capacity to foresee the consequences of one's actions were elements of the offence of murder but the risk is that taken with the other directions the jury may have understood that the necessary intention would exist if the jury was satisfied of these matters.

In R v. Wilmott (No.2)(supra) the Court cautioned against attempts to elaborate on the meaning of the word 'intention'. For these reasons I think that the appropriate course to take is to set the conviction aside and order a new trial.

I agree with Davies J.A. that the Trial Judge was correct
in refusing to allow the issue of provocation to go to the jury.

I would allow the appeal, set aside the conviction and

order a new trial.