R v. Maddox
[2008] QCA 21
•22 February 2008
SUPREME COURT OF QUEENSLAND
CITATION:
R v Maddox [2008] QCA 21
PARTIES:
R
v
MADDOX, Gregory Colin(appellant)
FILE NO/S:
CA No 222 of 2007
SC No 342 of 2007
DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
22 February 2008
DELIVERED AT:
Brisbane
HEARING DATE:
14 February 2008
JUDGES:
de Jersey CJ, Fraser JA, Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:
1. Appeal dismissed
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE – MISDIRECTION – whether directions by the judge to the jury could be construed as an invitation to convict on an assumed state of fact
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – GENERAL – where appellant repeatedly lunged at police officer with a knife – where appellant repeatedly threatened to kill police officer – whether the jury could be satisfied beyond reasonable doubt that the applicant had intended to commit murder – circumstantial case
R P S v R (2000) 199 CLR 620; [2000] HCA 3 considered
COUNSEL:
Mr BG Devereaux SC, with Ms C Morgan for the appellant
Mr MJ Copley for the respondent
SOLICITORS:
Legal Aid (Queensland) for the appellant
Director of Public Prosecutions (Queensland) for the respondent
de Jersey CJ: The appellant was convicted by a jury of attempted murder. He appeals against that conviction. The grounds of appeal are that the conviction is unsafe and unsatisfactory, and that the learned trial Judge misdirected the jury in a particular respect.
The offence arose out of an attempt by police officers to carry out an investigation at a home unit, on the basis of a suspicion the unit was being used for the purposes of unlawful drug activity. Police officers, including the complainant, Senior Constable Drury, gave evidence of seeing a woman carrying white powder leave the units. The police officers determined that it was unit 209 they should investigate.
Senior Constable Drury knocked on the door and identified himself as “Mick”. Someone opened the door. Drury’s evidence was that he produced his police identification, and told those present he was from the police. The appellant and one Powell were sitting at a table on which, on Drury’s evidence, there was a large amount of white crystal material which smelt of methylamphetamine. There was another male person in the room as well. Drury told them they were detained. The appellant was sitting with his head slumped forward, and then started to say, “no, no, no”, becoming aggressive, picking up a knife and leaping at Drury, threatening to kill him.
Drury said the appellant jumped over the corner of a bed and started running at him. Drury stepped back towards the door as the appellant “slashed” the knife across Drury’s chest. Drury avoided the knife. The appellant was again yelling that he would kill Drury, and lunged forward with the knife.
Drury then removed his firearm from its holster, and took aim at the appellant’s chest, telling him to put the knife down or he would shoot him. By this time Drury had backed into the doorway. The man Powell shut the door on Drury’s arm, causing the arm to move so that Drury’s aim was no longer upon the appellant. The persons involved were very close to each other.
For the rest of the incident, on Drury’s evidence, he had a foot in the door attempting to keep it open, while Powell and the appellant were trying to close it. The knife “was just up and down through the door”. Drury said:
“I believe (the appellant) had another slash…towards my arm and that I moved slightly away. The door was hit onto me again and…Constable Sommers…was behind me. She was still pulling me backwards…(The appellant) literally just drove the knife straight at my face and I had the gun, it went over the top of my gun and my natural reaction was obviously, the blade coming towards my face, to put my arm up. And at that time the knife sliced through my jacket and went through into my arm and then literally with Mr Powell pushing on the door and Lana (Sommers) pulling me we bailed out of the door.”
Under cross-examination, Drury agreed the appellant had not lunged in the direction of his heart; that the cut he received did not require stitches, only a bandaid; and when asked whether, when his arm was knocked away and the aim shifted from the appellant, there was anything stopping the appellant from stabbing him, he said: “only the door sort of coming on to me”.
The appellant did not give evidence.
Defence counsel submitted that Drury had exaggerated his evidence, for example as to the presence of methylamphetamine, and as to blood dripping down his arm. It was also suggested that Drury had exaggerated the number of threats the appellant made, and the severity of the appellant’s conduct generally.
The challenged direction
When directing the jury as to its approach to the assessment of the evidence and the drawing of inferences, the learned Judge said this:
“Now, it is one of the issues raised by the defence in this case that you may have thought there was some exaggeration in this case and that you would therefore be careful about the way in which you approached the evidence of the police. There are probably two ways you can approach this case. One is to look at the prosecution case at its highest and say, ‘well even taking it at its highest are we satisfied beyond reasonable doubt that there was an intent to kill at the time’. The other is to go into this issue of just exactly what you accept and then say, ‘well, on the basis of what facts we decide we accept, are we prepared to find that there was an intent to kill – and intent to kill and nothing less.”
Immediately following that, the Judge said:
“As I have said, a specific intent to kill is necessary. If you think it is a reasonable possibility that the accused had some other intent than that, you can’t convict of attempted murder. You have to be able to infer beyond reasonable doubt from what has been said and what he did that he had an intent to kill police officer Drury when he came at him with the knife.”
The principal issue at the trial was whether the prosecution had established beyond reasonable doubt that at the time the appellant injured Drury with the knife, he intended to kill Drury. As the Judge made plain: “The issue is whether the accused person did attempt to kill, and nothing less than that, the police officer Drury.” Also, the Judge repeatedly and clearly directed the jury about the drawing of inferences, and particularly as to the inference of intent. He said, for example:
“…when it comes to drawing the ultimate inference that the accused person is guilty, you can only do that if you have no reasonable doubt that it is the only inference that can be reasonably drawn. If you have a doubt that it is the only reasonable inference that can be drawn from the facts, then you must acquit.”
The jury was properly directed about its role in relation to the facts. For example, they were told: “The view of the evidence that you act upon is finally yours and yours alone. You have to act on the evidence alone.”
The particular direction which is the subject of challenge in the appeal is said to amount to a “serious misdirection, inviting the jury to chose between two methods of approaching their fact-finding task, the first of which allows the distinct possibility that the jury took the Crown case at its strongest (and inevitably convicted), rather than scrutinize the evidence to find the facts and then consider what inferences they were then prepared to draw”.
In saying what he did, the Judge was directly addressing the parties’ respective positions (cf RPS v R (2000) 199 CLR 620, 637 para 41). The prosecution submitted that the jury should accept the evidence of Drury. The defence submission was that Drury was guilty of substantial exaggeration. Accordingly, addressing the prosecution position, the Judge was saying to the jury: if you accept Drury’s evidence, that is, if you accept the Crown case ‘at its highest’, you must then still address the question whether it established beyond reasonable doubt the intent to kill. Then taking the defence approach, assuming the jury was not satisfied of the credibility of Drury in all respects, the Judge invited them to undertake a particular analysis of which parts of the evidence they accepted, and parts which they rejected. Then in the end, the same question would need to be addressed, whether the intent to kill was established on the evidence accepted.
It is important to note what immediately followed the challenged direction, where the Judge repeated his earlier direction as to the need to be able to infer the requisite intent, beyond reasonable doubt, “from what has been said and what he (the appellant) did”, that is, on the basis of evidence accepted by the jury, and not by reference to some assumed state of facts.
This attempt to address the respective competing positions of the parties was an attempt to assist the jury to deal with those positions. The direction occurred in a context where the Judge gave the jury orthodox directions about their role in assessing the evidence, as to issues of credibility for example, as to the onus and standard of proof, and as to drawing inferences from evidence accepted.
The direction would have been a misdirection only if reasonably construed as an invitation to the jury to assume the accuracy of all of the prosecution evidence, without due consideration, and to convict on that basis. The Judge was plainly not presenting the matter in that way. Counsel presumably accepted that: neither sought any re-direction.
Unsafe or unsatisfactory conviction?
The appellant’s submission is that the prosecution could not exclude the inference, a reasonable inference, that in attacking Drury, the appellant was intending just to expel him from the unit, not to kill him. The appellant points to circumstances such as that the appellant did not use a loaded firearm which had been available to him, that he only slashed Drury with the knife, and that Sommers did not give evidence of repeated threats to kill, as Drury did.
But there was a compelling basis for an inference of an intent to kill, in the use of the knife upon Drury, in close proximity to the appellant, accompanied by the uttering of threats to kill him – however many is not presently critical. It was an inference the jury could reasonably draw, as the basis for the conviction. The jury was, in what was at least technically a circumstantial case, entitled to draw that inference as the only inference reasonably open on their view of the facts.
On the complainant’s evidence, which the jury were entitled to accept, the appellant picked up the knife, having a blade approximately six inches long, and charged at the complainant threatening to kill him. The appellant held the knife at shoulder height with the blade pointed at Drury. He used a backhand motion to slash it across the region of Drury’s chest. He missed only by centimetres. Drury retreated, and the appellant slashed at him again, again threatening to kill him. That forward-hand slash missed Drury’s chest or throat by only centimetres or even millimetres. After Drury drew his pistol and told the appellant to put the knife down or he would shoot, the appellant again threatened to kill him. With the door almost completely shut, through what space remained the appellant stabbed the knife straight at Drury’s face. It was then that Drury put up his arm, and the arm was cut.
As submitted for the respondent, having regard to what the appellant said, what the appellant did, and the weapon the appellant used, the jury was entitled to infer an intent on the appellant’s part to kill Drury, as the only inference reasonably open.
The appeal should be dismissed.
Fraser JA: I agree with the reasons of the Chief Justice and the orders proposed by his Honour.
Atkinson J: I agree with the reasons of the Chief Justice and the orders proposed by his Honour.
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