R v Pitt

[1996] QCA 167

IN THE COURT OF APPEAL	[1996] QCA 167
SUPREME COURT OF QUEENSLAND	C.A. no. 478 of 1995
Brisbane [R. v. Pitt]

THE QUEEN

v.

DARRIN ARTHUR JOHN PITT

Appellant

Fitzgerald P.
Ambrose J.

Helman J.

Judgment delivered 31 May 1996

Judgment of the Court.

APPEAL AGAINST CONVICTION DISMISSED

CATCHWORDS:CRIMINAL LAW - appeal against conviction of attempted murder - whether evidence should have been excluded by trial judge in the exercise of his discretion - whether probative value outweighed by prejudicial effect - whether verdict unsafe and unsatisfactory.

Counsel:	Mr S. Hamlyn-Harris for the appellant Mr B. Butler for the respondent
Solicitors:	Legal Aid Office for the appellant Queensland Director of Public Prosecutions for the respondent

Hearing Date: 12 March 1996

JUDGMENT OF THE COURT Judgment delivered 31 May 1996

On 6 November 1995 the appellant was found guilty of attempted murder after a trial in the Supreme Court at Brisbane. In the indictment it was alleged that on 7 June 1994 at Brisbane the appellant had attempted unlawfully to kill Martin James Trotter. There was an alternative count arising out of the same incident in which it was alleged that the appellant did grievous bodily harm to Mr Trotter intending to do so. The learned trial judge sentenced the appellant to imprisonment for seven and a half years.

The Crown case was that a James Michael Graham, who had been jointly charged with the appellant but who failed to attend for the trial, had committed the offence by stabbing Mr Trotter and the appellant had been party to the offence by aiding Graham and counselling him to commit it. The appellant did not give evidence, but accounts of his actions on the night in question which he gave to investigating police officers on 8 and 10 June 1994 and 5 September 1994 were put before the jury. He claimed to have departed once it became evident that Graham was intent on attacking Mr Trotter and so to have dissociated himself from Graham's actions before the stabbing. He told the police officers that he had rejoined and remained with Graham after the short interval of dissociation.

There are two grounds in the notice of appeal: first, that his Honour erred in admitting the evidence of Ms Lesley Cooper concerning a conversation she had with the appellant before the stabbing; and secondly that the verdict of the jury was unsafe and unsatisfactory.

So that the context in which Ms Cooper's evidence came to be placed before the jury can be understood we shall summarize first the evidence concerning the incident itself.

Mr Trotter's evidence-in-chief was that on 7 June 1994, after visiting the Sly Fox Hotel in South Brisbane, he was walking back to the city when he was accosted by three men. He was asked for a cigarette. There was some conversation between him and the men, one of whom had a stutter. Then one of the men pulled a knife out of a bag and, while the man with the stutter grabbed Mr Trotter's head and pulled him back, the man with the knife cut Mr Trotter's throat. Mr Trotter said that as the attack was in progress the man with the stutter said two or three times, "Just kill the old bastard. Finish the old bastard off". (Mr Trotter gave his age as fifty-two.) Mr Trotter said that after his throat was cut the man with the knife said, "Let the old bastard go". Mr Trotter said that he said to his attackers, "Youse will go for this" and the man with the knife said, "We won't go old man. We'll be in Melbourne. Fuck you old man". Mr Trotter then staggered a short distance away and was helped by a passer-by.

In cross-examination Mr Trotter agreed that one of the three men had walked away before he was stabbed saying that he wanted no part in "this". There was some confusion in Mr Trotter's evidence as to when the man who departed did so, but Mr Trotter said that the man who had departed was not the man with the stutter. Mr Trotter agreed that he had consumed alcoholic drinks on the day of the attack. He also agreed that he had had difficulty remembering things since the stabbing, but maintained that he could remember it. He agreed that at the committal hearing he had said the man with the stutter had pushed his forehead back, whereas at the trial he said that the stutterer had grabbed his head and pulled him back. Mr Trotter's evidence was that the incident took place in the late afternoon or early evening, whereas the evidence of the passer-by, Mr David Jackson, was that he helped Mr Trotter at about 10.30 p.m. Mr Jackson said that Mr Trotter told him that one of the attackers was black and the other was white.

Mr Jackson's evidence as to the time was consistent with that of Senior Constable Maxwell Williams and Constable David Stafford who saw the appellant and Graham outside the Sly Fox Hotel at about 9.10 p.m. on 7 June 1994. Senior Constable Williams said he saw them later heading "in towards town", and Constable Stafford said he saw them later heading towards the Victoria Bridge.

There was evidence that Graham was not aboriginal and it can be seen from a video- tape of an interview of the appellant by police officers made on 5 September 1994 that the appellant has a white skin. The jury would of course have observed him in person.

Dr Mark Woodrow, who examined Mr Trotter after he was taken to the Mater Hospital at midnight on 7 June 1994, found him to have a gaping wound ten centimetres long and at least ten to twelve centimetres deep across the front and right side of the base of his neck, a wound towards the back of the right side of his neck, wounds to the back of the left shoulder and the back of the head, and bruising to the face.

Mr Andrew Jasper-Batson gave evidence that on the morning of 8 June 1994 the appellant spoke to him at the Pindari Hostel in Spring Hill. Mr Jasper-Batson said in evidence- in-chief that the appellant said, "I killed some cunt". In cross-examination Mr Jasper-Batson accepted that the appellant had not said those words and that he, Mr Jasper-Batson, had given a statement to investigating police officers in which his account of the conversation was that the appellant had said, "I was with some fellow and someone stabbed some cunt".

Mr Julian Cooper gave evidence that he had spoken to the appellant on the morning of 8 June 1994 and the appellant had said that someone had been killed but that he did not do it and that another fellow who had been there was responsible. Mr Cooper said, however, that the appellant said that he had been there.

In a statement signed by the appellant on 8 June 1994 he admitted being with a man called Jamie on the night of 7 June 1994 when Jamie had spoken to a man near the Sly Fox Hotel and later said to the appellant something like, "I'm going to roll him", whereupon the appellant told Jamie he would see him later and walked off.

In a further statement signed by the appellant on 10 June 1994 given to police officers in the presence of his solicitor he admitted being in a grassy area near a bridge when the man Jamie punched another man. He said that as soon as Jamie did that he stood up and walked away. The appellant said that he at no time saw a knife, and he left as soon as he saw the punch. He added that what Jamie did really shocked him. He said that about ten minutes later Jamie walked towards him. The appellant said, "What happened?" Jamie said words to the effect that he had stabbed a man and it was just like gutting a fish. The appellant then told Jamie he was crazy.

In the interview of 5 September 1994 the appellant gave an account of his actions on the day in question similar to that in his statement of 10 June 1994. His stutter was obvious in the interview, as it was to Senior Constable Williams and Constable Stafford when they encountered him outside the Sly Fox Hotel on 7 June 1994.

We now turn to the evidence which is the subject of the first ground of appeal.
Ms Cooper gave evidence that on the evening of 7 June 1994 she saw the appellant,

whom she had then known for about a week, sitting outside the gate of the St. Vincent de Paul hostel in South Brisbane sharpening a butter knife on some concrete. She said the appellant said "something about wanting to kill someone". She said that the appellant did not specify any particular person, and she ignored the remark and did not take it seriously. She agreed that the appellant's words could be described as "a drunken rambling". Ms Cooper saw the appellant later that night drinking under a railway bridge near the Sly Fox Hotel and at the hotel but she did not then see him with a knife. At the hotel he was with someone called Jamie. Later again that night, after 10.30 p.m., she saw the appellant and Jamie at a backpackers' hostel in West End where she was staying.

It was not the Crown case that the butter knife was the knife used in the attack on Mr Trotter. The knife used in the attack was, according to the Crown case, another knife which had been in Graham's possession at the Sly Fox Hotel earlier in the evening and which Graham discarded after the attack and was not recovered. The butter knife, which became an exhibit in the trial, was recovered in a garden bed at the corner of Peel and Hope Streets South Brisbane about one hundred metres from the Sly Fox Hotel after the appellant led Constable Christopher Toohey to it on 10 June 1994 after the interview we have mentioned. When interviewed by police officers on 5 September 1994 the appellant admitted the conversation had taken place as Ms Cooper said but said that he said what he did because he was "drunk and stupid". He denied having intended to kill anybody with the knife. He claimed to have stuck the butter knife in the garden bed and left it there before the attack on Mr Trotter.

On the appellant's behalf his counsel at the trial objected to the reception of the evidence of the conversation with Ms Cooper submitting that the prejudicial tendency of the evidence far outweighed its probative value. His Honour ruled it admissible and was not prepared to exclude it. His Honour said it was quite possible that it was "just an inconsequential statement" or a statement made in jest, but it was also possible it could been seen as "an indication of evil intentions", and that it might be evidence that tended to rebut surprise on the appellant's part at what Graham did to Mr Trotter.

In summing-up the case his Honour mentioned the evidence of the conversation with Ms Cooper a number of times. In reminding the jury of the sequence of events revealed by the evidence he said:

As I understand the evidence, and it is a matter for you as to whether you accept any part of the evidence or not, it seems clear enough that there is evidence that during the late afternoon he was sitting on the footpath of Vinnie's scraping away with a bread and butter knife and his acquaintance, Miss Cooper, came by and he made the statement to her when asked what he was doing - he said, "I'm going to kill someone." Whether that was a light-hearted, irresponsible statement or a cold, calculating statement of someone who has got some plan brewing to go out and do some harm is a matter of some doubt. It is a matter for you to throw into the balance, but standing alone you could not place a great deal of reliance upon it. The Crown says it is a circumstance and it refers to what the Crown Prosecutor calls the coincidence that he is allegedly involved in a near homicidal incident somewhat later that night.

Look at the knife, consider how well or how unwell it has been sharpened and see what you make of that particular piece of evidence.

Later, referring to the police investigation, his Honour said:
He was questioned at length about all the other peripheral bits of the evidence by the

police, about how he came to be sharpening a knife earlier on, but, as I have suggested to you, there is not a lot that you can draw safely from the bread and butter knife which plainly was not used in this incident and which he plainly discarded because he showed the police where he left it and took them to it in due course.

His Honour returned to the subject when commenting on points made by the Crown Prosecutor:
He relies, of course, on the rather strange statement that the accused made earlier that

day, words along the lines, when asked by the passing woman, Miss Cooper, "what are you doing that for?" He was rubbing a knife on the ground and he says, "I am going to kill someone." Well, it is really an isolated straw in the wind, perhaps. I suggest that you do not place too much store by it. The Crown Prosecutor suggests that it is an indication of some general homicidal intent but when you look at the whole case, and the knife, it is not effectively sharpened, not used, and it is, in fact, discarded. Also, look at what little we know of this young man. We see him during the record of interview, and you find quite a few nervous giggles, some attempt to turn things into a joke if he can. So, if you know that much about his personality, it is by no means unrealistic to think that his comment to Miss Cooper may not have been a serious one at that time. Be very careful before putting too much literal stock into that particular be comment.

While conceding that it could not be submitted that the evidence of the conversation was not relevant at all, Mr Hamlyn-Harris for the appellant argued before us that the evidence was of very limited relevance and that there was a great danger that the jury may have accorded it a significance which was not justified.

We are not persuaded that the evidence of the conversation was of only peripheral relevance and little weight. Regrettably it is not at all outside human experience for someone to form an intention to commit acts of violence on a victim or victims randomly selected. The appellant's state of mind at the time in question was an important issue in the case. His statement to Ms Cooper was in our view evidence capable of establishing that he had formed an intention to kill at random early on the very evening on which he was a party to an attempt to kill a victim selected at random. The fact that Ms Cooper did not take the appellant seriously is of little moment, for it is again not outside human experience for even responsible people to discount such statements as empty threats or bravado, when in truth they are seriously meant.

No complaint was made to us about his Honour's comments to the jury on the evidence of the conversation. That is not surprising since his Honour emphasized possible innocent explanations for the appellant's words.

In the result we find no merit in the first of the appellant's grounds of appeal. In our view the evidence had substantial probative value which was not outweighed by its prejudicial effect. If accepted it was capable of establishing a homicidal intention at the relevant time on the night in question - an intention formed early in the evening, remaining with the appellant until the attack, carried into execution as far as possible when the hapless Mr Trotter fell into the company of Graham and the appellant.

Mr Hamlyn-Harris submitted that the jury's verdict was unsafe and unsatisfactory because the jury could not safely have acted on Mr Trotter's evidence and could not reasonably have excluded beyond a reasonable doubt the appellant's assertion of his having dissociated himself from Graham before the stabbing.

There were some discrepancies and inadequacies in Mr Trotter's evidence. His memory of the incident was probably affected by the alcohol he had consumed, so that he was not clear as to when the man who left the group did so. There was also the discrepancy between his description in the committal hearing of the stutterer's actions and his account of them at the trial. His description to Mr Jackson of his attackers as one black and one white is doubtful, although the evidence about Graham went no further than establishing that he was not aboriginal. What does also emerge, however, on an assessment of the evidence is that Mr Trotter was quite clear and consistent as to the central facts of the attack on him: the parts played by Graham and the stutterer. The identification of the appellant as Graham's accomplice from his stutter could reasonably be regarded as convincing. Mr Trotter's description of the skin colours of his attackers, assuming it to be wrong, was, it should be remembered, given just after the stabbing when his mind was no doubt preoccupied with his survival.

In our view although there were discrepancies and inadequacies in the Crown case they are not such as to lead to the conclusion that there is a significant possibility that an innocent person has been convicted. There was nothing inherently improbable in what Mr Trotter said and nothing emerged at the trial which cast such doubt on his account as to render it unreasonable for the jury to act upon his evidence. On our assessment it was open to the jury to be satisfied beyond a reasonable doubt that the appellant was guilty. In those circumstances we are not persuaded that there is any merit in the appellant's second ground of appeal.

The appeal will be dismissed.