R v Knowles - [2016] SASCFC 100

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v KNOWLES
[2016] SASCFC 100
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Doyle)
9 September 2016
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - EFFECT OF MISDIRECTION OR NON-DIRECTION
Appeal against convictions. Appellant found guilty by a jury of two counts of murder. The appellant's four-wheel drive vehicle collided head-on with another vehicle on the Lincoln Highway near Middleback. The driver of that vehicle and a passenger died at the scene. Two other passengers sustained serious harm. The prosecution case was that the appellant drove deliberately into the path of the oncoming vehicle with the intention of committing suicide. Whether the trial Judge failed to adequately direct the jury as to the bearing of intoxication on the issue of proof of intention or recklessness as to killing or causing grievous bodily harm.
Held: (per Vanstone J, Kourakis CJ and Doyle J agreeing) Appeal dismissed. There was no room for thinking that the jury was left unaware of the need to undertake a separate consideration of the bearing of the appellant's intoxication on the proof of intention to kill or cause grievous bodily harm.
R v Shinner (1993) 173 LSJS 384; R v Wingfield (1994) 176 LSJS 14; Viro v The Queen (1978) 141 CLR 88, considered.

R v KNOWLES
[2016] SASCFC 100
Court of Criminal Appeal: Kourakis CJ, Vanstone and Doyle JJ

KOURAKIS CJ: I would dismiss the appeal for the reasons given by Vanstone J.
VANSTONE J: In the early hours of the morning of 29 December 2014, on the Lincoln Highway near Middleback, a Nissan Patrol motor vehicle being driven by the appellant, Michael Frank Knowles, collided head-on with a vehicle driven by James Moore. James Moore’s Mitsubishi Pajero motor vehicle contained three passengers. James Moore and one of those passengers, Natasha Turnbull, died at the scene. The other two passengers sustained serious harm.
On 11 September 2015, the appellant pleaded guilty as charged to two counts of causing serious harm by dangerous driving in relation to the two injured passengers. However, his pleas of guilty to two counts of causing death by dangerous driving were not accepted by the Director of Public Prosecutions. Subsequently, he was tried before a Judge and jury in the Supreme Court sitting at Port Augusta for the murders of James Moore and Natasha Turnbull. The prosecution case was that he drove deliberately into the path of the oncoming Pajero with the intention of committing suicide. The appellant was found guilty of both counts. He was sentenced on the following day in relation to all four offences. There is no complaint about the sentence imposed.
The appellant appeals against his convictions for murder, complaining that the learned trial Judge failed to adequately direct the jury as to the bearing of intoxication on the issue of proof of intention to kill…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Knowles

Details

AGLC: R v Knowles [2016] SASCFC 100
Case: [2016] SASCFC 100
Decision Date: 9 September 2016

CaseChat Overview and Summary

The appellant, R v Knowles, appealed against his convictions for two counts of murder following a head-on collision on the Lincoln Highway that resulted in the deaths of the driver and a passenger of the other vehicle. The prosecution's case posited that the appellant intentionally drove his four-wheel drive vehicle into the path of the oncoming vehicle with the intent to commit suicide. The appeal was heard by Kourakis CJ, Vanstone and Doyle JJ.

The central legal issue before the court was whether the trial judge had adequately directed the jury regarding the impact of the appellant's intoxication on their assessment of proof for the intention to kill or cause grievous bodily harm. The appellant contended that the summing up failed to sufficiently address how intoxication might affect the appellant's ability to form the necessary intent.

The court considered that while the trial judge had repeatedly directed the jury that evidence of intoxication was relevant to the elements of murder, the summing up did not specifically highlight the potential for confusion or lack of advertence to long-term consequences in an intoxicated individual when directing on the third element of murder. However, the court found that the jury was not left unaware of the need to consider intoxication in relation to the proof of the third element. The court reasoned that given the appellant's threats of suicide by driving into oncoming traffic, it was practically impossible for the jury to find that he deliberately executed such a plan without advertence to the high probability of causing grievous bodily harm to others. The court concluded that the summing up was not deficient, particularly as the defence's primary focus was on the issue of deliberation rather than the specific impact of intoxication on intent.

For these reasons, the appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

The appellant appeals against his convictions for murder, complaining that the learned trial Judge failed to adequately direct the jury as to the bearing of intoxication on the issue of proof of intention to kill or cause grievous bodily harm. Background At the time of the collision, the appellant was employed as a level 5 operator of equipment at Transpacific Industries, in Whyalla. The appellant and his partner, Ms Teri Gelligen, had recently separated. Ms Gelligen gave evidence that her relationship with the appellant commenced in February 2013. She was living at her home in Whyalla. In approximately May 2013, the appellant moved into her home. She said that the relationship deteriorated. She spoke of “emotional and drinking problems”, as well as “mental anguish”. The appellant’s drinking was a cause of argument. The appellant would drink several times a week, sometimes heavily. She said that the appellant could consume as much as a couple of bottles of spirits in a session. Sometimes the liquor would make the appellant happy and, at other times, it would make him angry. Ms Gelligen gave evidence that there were occasions when the appellant was scheduled to work, but would not have passed the alcohol screening test conducted at the beginning of each shift by his employer. She estimated that at least once a fortnight, for this reason, either she or he would telephone the appellant’s employer and advise that he was sick and would not be attending work. Ms Gelligen said that there were occasions when the appellant threatened to kill himself. Approximately once a month he would threaten to commit suicide by driving into a truck. These threats were only made when he was drinking. On 11 December 2014, Ms Gelligen asked the appellant to move out of her house. She told him she was not ending the relationship, but she needed space and time to sort herself out. That night, numerous text messages were exchanged between them. One sent by the appellant ended with the words “I’m done time to start this car and do what I do best”, followed by another saying “love you good by”. Ms Gelligen said she interpreted these messages to mean that the appellant was going to crash his vehicle. Later, he sent this message:I hope you never hold this against me xxxxx but the time has come.Later again, he sent this message:Like I said. When I put my mind to something I have been building up to this all night and I’m not backing out now.At 12.14 am the appellant sent another message saying:Just wanted to hear your voice one more time cause IV done it.At 12.21 am he sent a picture of his cut wrist, accompanied by the text message:You thought I was joking. Between 12 and 28 December 2014, the appellant and Ms Gelligen maintained frequent contact by telephone and sometimes in person. It appeared that during that time he was sleeping in his vehicle. On the morning of 28 December 2014, the appellant arrived at Ms Gelligen’s house. After a while they argued and he became upset and left. The appellant returned between 8.30 and 9.00 pm that night in a conciliatory mood. She said she could smell alcohol on him. She told the appellant she was happy for him to sleep in his car outside her house. However, she was “frustrated and upset” and they were not getting on. After about 20 minutes he “took off”. Ms Gelligen then locked the house. The appellant arrived back and wanted to be let in. He asked her for “one last hug before I go do this”. Ms Gelligen refused and the appellant drove off. Ms Gelligen was sufficiently concerned to call the police.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Furthermore, as a matter of practical reality, there was no scope for a finding that the appellant deliberately drove his vehicle into the path of the oncoming vehicle intending to end his life (as he had threatened to do), yet did not advert to the probability that grievous bodily harm would be caused to the occupants of the Pajero. The awareness of consequences involved in executing that plan could hardly exclude a contemplation of the likelihood of really serious injury to others. That likelihood could barely answer the description of a long-term consequence. It is no doubt, for that reason, that the thrust of the defence case was directed at the issue of proof of deliberation in driving into the victims’ vehicle. It is not surprising that the summing up, reflecting that position, placed more emphasis on the second element.Conclusion I do not consider that the summing up was deficient. It is not surprising that experienced counsel raised no complaint about it after its delivery. For these reasons, I would dismiss the appeal. DOYLE J: I would dismiss the appeal. I agree with the reasons of Vanstone J.

Ratio Decidendi

Legal Principle Established

As in the case of Shinner, critical to this decision was the fact that there was no apparent rational motive to kill or cause grievous bodily harm to the victim and the summing up failed to bring home to the jury that intention to cause death or grievous bodily harm could not necessarily be inferred from the type of injuries inflicted in circumstances where the appellant was intoxicated. In addition, because Wingfield’s defence was that he had not beaten the child, his counsel had not addressed the jury on the need to consider intoxication in relation to proof of specific intention. Therefore, it was all the more important that the Judge raised and dealt with that issue. Consideration The present appellant’s complaint has to be considered in the context of a four day trial in which the evidence was of narrow compass, the only issue was the appellant’s state of mind at the time of the collision, the summing up occupied one hour, and where it is not suggested that the Judge made any error of fact or law. The complaint comes down to this. That although the Judge summarised the important part of Professor White’s evidence and directed the jury a number of times that the evidence of intoxication was relevant to both the second and third elements of murder, the Judge did not specifically mention the evidence raising the possibility of confusion and lack of advertence to “long-term consequences” in an intoxicated man when directing on the third element. I do not consider there is any room for thinking that the jury was left unaware of the need to undertake a separate consideration of the bearing of the appellant’s intoxication on proof of the third element. Professor White’s evidence was clear. Defence counsel highlighted its relationship to both basic and specific intent and the Judge’s summing up repeatedly linked the issue of the appellant’s intoxication with the third element. The whole of the evidence was directed to the appellant’s state of mind and the bearing that intoxication may have had upon it. The jury’s task was clear. Furthermore, as a matter of practical reality, there was no scope for a finding that the appellant deliberately drove his vehicle into the path of the oncoming vehicle intending to end his life (as he had threatened to do), yet did not advert to the probability that grievous bodily harm would be caused to the occupants of the Pajero. The awareness of consequences involved in executing that plan could hardly exclude a contemplation of the likelihood of really serious injury to others. That likelihood could barely answer the description of a long-term consequence. It is no doubt, for that reason, that the thrust of the defence case was directed at the issue of proof of deliberation in driving into the victims’ vehicle. It is not surprising that the summing up, reflecting that position, placed more emphasis on the second element.Conclusion I do not consider that the summing up was deficient. It is not surprising that experienced counsel raised no complaint about it after its delivery.