R v Rajek
[2025] QCA 23
•11 March 2025
SUPREME COURT OF QUEENSLAND
CITATION:
R v Rajek [2025] QCA 23
PARTIES:
R
v
RAJEK, Anthony Daniel
(appellant)FILE NO/S:
CA No 246 of 2023
SC No 137 of 2023DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction
ORIGINATING COURT:
Supreme Court at Brisbane – Date of Conviction: 28 November 2023 (Callaghan J)
DELIVERED ON:
11 March 2025
DELIVERED AT:
Brisbane
HEARING DATE:
19 February 2025
JUDGES:
Bowskill CJ, Gotterson AJA, Muir J
ORDER:
Appeal dismissed.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant struck the complainant with a knife in the vicinity of the complainant’s uppermost chest and lower neck – where the appellant was convicted of attempted murder – where the question of intention was to be determined by inference in the absence of direct evidence – whether it was open to the jury to be satisfied beyond reasonable doubt that the appellant held an intention to kill – whether the jury ought to have accepted the submission that the appellant only intended to cause grievous bodily harm – whether the verdict of the jury should be set aside
Criminal Code (Qld), s 306(1)(a)
AK v The Queen [2021] VSCA 165, cited
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
SKA v the Queen (2011) 243 CLR 400; [2011] HCA 13, cited
Zaburoni v The Queen (2016) 256 CLR 482; [2016] HCA 12, citedCOUNSEL:
S J Dickson for the appellant
J D Finch for the respondentSOLICITORS:
Owens & Associates for the appellant
Director of Public Prosecutions (Queensland) for the respondent
THE COURT: The appellant, Anthony Daniel Rajek, was indicted on two alternative counts, namely, that on the 16th of January 2022 at Brisbane City, he attempted unlawfully to kill Steven Robert Cribb (“the complainant”) in contravention of s 306(1)(a) of the Criminal Code (Qld) or that on that date and at that place, he did grievous bodily harm to the complainant with intent to do so in contravention of s 317(1)(b) and (e) thereof. He entered a plea of guilty to the alternative count which was not accepted by the Crown.
The appellant was tried on the attempt count before Justice Callaghan and a jury at the Supreme Court in Brisbane on the 27th and 28th of November 2023. He was found guilty of attempted murder on the second day of the trial. On the 16th of February 2024, the appellant was formally convicted and then sentenced to imprisonment for 13 years and 6 months.
A notice of appeal against conviction was filed for the appellant on the 13th of December 2023. At the hearing of the appeal, leave was granted to amend the sole ground of appeal to the following:
“The verdict of the jury should be set aside as it is unreasonable and cannot be supported having regard to the evidence.”
In written submissions, counsel for the appellant clarified that the appeal focussed on whether the jury’s verdict was unreasonable because they could not have been satisfied beyond reasonable doubt that the appellant held an intention to kill at the time he struck the complainant.[1]
[1]Appeal Transcript (“AT”) 1-3 ll 3-26.
Circumstances of the offending
The complainant, who was 53 years of age at the time of the offending, gave evidence[2] that in January 2022, he lived at Coorparoo. However, he would go to the city to sleep at night. He recalled that in the early morning of the 16th of January that year, he was lying on the ground outside the Telstra store at the corner of Queen and Albert Streets in the city, facing the store. Someone came and pulled him over and stabbed him in a manner which he described as “quite forceful”. When asked to indicate where he was stabbed, he pointed to his upper chest/lower neck area. The person said nothing and walked away. The complainant felt pain at the top of his chest. His hand, which he placed on the wound, was covered in blood.
[2]Tr 1-24 ll 17-46; AB 65.
Next, the complainant said that he ran to the McDonald’s outlet on the other side of Queen Street about 30 metres away and asked them to call an ambulance. According to his evidence, two nurses at the outlet stopped his bleeding.[3] An ambulance arrived and he was taken to hospital where he remained for a few hours.[4]
[3]In fact, the two were the McDonald’s manager who had had first responder training and a female customer who was a nurse.
[4]Tr 1-25 ll 1-24; AB 66.
In cross-examination, the complainant agreed that he was lying on his left side when he was stabbed. It was put to the complainant that the appellant lent over him, rather than pulled him over, and then stabbed him. The complainant conceded that he was not “totally clear” as to how it had happened.[5]
[5]Tr 1-26 ll 27-45; AB 67.
The manager of the McDonald’s outlet gave evidence that she saw the complainant enter the premises from a lift and ask for an ambulance. At first, she could not see an injury. It was only when the complainant opened his jacket that she could see that he had a “gushing wound in his chest”.[6] She and a female customer applied pressure to his chest area for about 10 to 15 minutes until the ambulance arrived.[7]
[6]Tr 1-28 ll 44-45; AB 69.
[7]Tr 1-28 l 39 – Tr 1-29 l 2; AB 69-70.
It was admitted at trial that it was the appellant, then almost 22 years of age, who had struck the complainant with a knife.[8] It was also admitted that, at the time, the appellant held a lease of a residential unit in Margaret Street in the city.[9]
[8]Exhibit 2 AB 134.
[9]Ibid.
The appellant was unknown to the complainant. He was identified by police via security cameras in the city. Plainclothes Senior Constable Karen Stevenson of the City Criminal Investigation Branch gave evidence to the effect that a security camera had captured a male person stabbing the complainant in the Queen Street Mall at about 3.40 am and that other cameras had tracked that person’s movements from the Margaret Street unit address to the offence location and return.[10]
[10]Tr 1-32 ll 28-35; AB 73.
A still photograph of the appellant depicted him wearing white shoes, dark pants, a dark zip-up jacket, a white hoodie with the hoodie over his head, and a face mask.[11] Other still photographs tendered in evidence showed the appellant en route between his Margaret Street address and where the offending occurred.
[11]Tr 1-32 ll 43-45; AB 73.
The CCTV footage from the security camera which captured the offending was tendered by consent.[12] It depicted the following sequence:
[12]Exhibit 1.
(a)the complainant lying on his right side on a paved surface facing the street with his back towards the Telstra shop – the complainant was clothed, his body was not covered by a blanket or sleeping bag, and he appeared to be alone;
(b)the appellant approaching the complainant’s vicinity and appearing to notice him on the ground, by turning his head to look at him;
(c)the complainant rolling over onto his left side, so that he was facing the Telstra shop, with his back towards the street;
(d)the appellant walking past the complainant before circling back towards him;
(e)the appellant reaching over the complainant and placing his left hand on the adjacent windowpane apparently in order to steady himself;
(f)the appellant pulling out a sizeable knife which appeared to have been concealed in his clothing, and thrusting it downwards with a full swing of the arm towards the complainant’s front in the vicinity of his uppermost chest and lower neck;
(g)the complainant grabbing at the wounded area;
(h)the appellant re-concealing the knife and then walking off briskly; and
(i)the complainant getting up, gathering his belongings, and walking towards the McDonald’s outlet.
The time lapse between the appellant’s reaching over the complainant and his walking off is of the order of four seconds.
Police recovered the knife that the appellant had used in the attack. They located it at his unit. It was a kitchen knife about 35 cm long, including a blade of about 20 cm. It, and a photograph of it next to a ruler, were tendered in evidence.[13]
[13]Exhibits 5 and 6.
The complainant’s injury
Three coloured photographs of the front of the complainant’s upper body were tendered during his evidence in chief.[14] They were taken about a month after he had been injured.[15] The photographs show a healed wound, irregular in shape, running laterally across the middle of his upper most chest area in the vicinity of the base of his neck.
[14]Exhibits 3A, 3B and 3C.
[15]Tr 1-42 ll 37-40; AB 83.
Evidence was given at the trial by Dr Lauren Cooper, a head and neck surgeon, who, at the time, was employed by the Ear, Nose and Throat Department of the Royal Brisbane and Women’s Hospital. Dr Cooper was on duty when the complainant was transported to the Emergency Trauma Centre at the Hospital.
In examination in chief, Dr Cooper was first asked about the anatomy of the neck generally. She spoke of the criticality of blood vessels in the neck, including the carotid artery and the jugular veins, to blood circulation in the body. As to muscles in the neck, Dr Cooper described the sternocleidomastoid as “two of the biggest muscles in the neck … almost like a big strap that protects the vessels” whose “main function is to turn the neck as well as tilting the head”.[16]
[16]Tr 1-58 ll 1-36; AB 99.
According to Dr Cooper, the complainant presented with “a single stab wound located right at the lower part of the neck”.[17] The entry point was “on the right-hand side just above the neck”.[18] It was observed by Dr Cooper to be “about a three-centimetre wide by two-centimetre high jagged wound”[19] at the opening.
[17]Tr 1-60 ll 14-15; AB 101.
[18]Tr 1-64 ll 4-5; AB 105.
[19]Tr 1-60 ll 21-23; AB 101.
After entry, the knife struck the complainant’s collarbone which Dr Cooper described as “a very hard bone”, and “then veered upwards”.[20] Asked where the knife then went, Dr Cooper said:
“So it’s gone in – the entry wound has been on this side and then it’s passed across the front of the thyroid gland or – sorry, cut through the strap – the sternocleidomastoid muscles completely on the right, partially on the left, through the strap muscles, which is the next layer below that, and then into the left side of the neck where it’s got the upper part of the – the thyroid gland as well as the vessels, and then deep – have gone through that and deeper to that, which is where the cricoid cartilage is, and it’s taken off the fibrous layer of the outer part of the cricoid cartilage which protects the voice box, but hasn’t penetrated through that”.[21]
[20]Ibid ll 28-30.
[21]Tr 1-64 ll 1-9; AB 106.
A coloured diagram of the musculature in this region prepared by Dr Cooper was tendered during her evidence in chief.[22] It depicted the entry point as having been above the suprasternal notch in the lower neck area, and the direction of the travel of the knife after hitting the collarbone as having been upward and to the left. It also depicted the location of the sternocleidomastoid and the upper left thyroid and recorded that location as being where most of the damage had occurred.
[22]Exhibit 9.
Dr Cooper was asked about the degree of force that may have been applied to cause the complainant’s injuries. She said:
“So to be able to completely remove or skin off a – a muscle of the bone and then penetrate that deep, it would be high force”.[23]
In her opinion, the knife would have penetrated to a depth of about half its blade length in order to cause the injuries.[24]
[23]Tr 1-67 ll 34-37; AB 108.
[24]Tr 1-68; ll 42-45; AB 109.
Dr Cooper did not depart from her evidence in chief during cross examination.
Intention to kill
It is common ground that for the appellant to have offended against s 306(1)(a), he must have intended to kill the complainant when he struck him.[25] In order for the appellant to be found guilty of this offence, the Crown was required to prove beyond reasonable doubt that he had had such an intention.
[25]See Knight v The Queen (1992) 175 CLR 495.
It is also common ground that there was no direct evidence of an intention to kill on the appellant’s part. It was for the jury to decide whether such an intention was to be inferred from the whole of the evidence to the requisite standard of proof.
Appellant’s submissions
In written submissions, counsel for the appellant submitted that the evidence in the Crown case was not capable of excluding the reasonable hypothesis that the appellant had held an intention to do grievous bodily harm, but not to kill.[26] At the hearing of the appeal, counsel informed the Court that he was prepared to concede that an intention to kill was reasonably open on the evidence but then submitted that it was not the only reasonable inference as to intention. An inference of an intention to do grievous bodily harm only was also reasonably open, it was submitted.[27]
[26]Appellant’s Written Submissions (“AWS”) para 37.
[27]AT 1-3 ll 32-38.
According to the case for the appellant, there were features of the evidence which militated against a finding beyond reasonable doubt of an intention to kill.[28] Those features are:
(a)the delivery of a single blow to the complainant’s chest area or, as counsel described it in argument before this Court, “a blow was inflicted on the collar bone close to the neck”;[29]
(b)the chest contains many bony structures and is not as vulnerable as the neck;
(c)the offending was fast taking less than four seconds to commit;
(d)the appellant leant over the complainant without attempting to reposition him so that he was more vulnerable;
(e)the single blow had not caused an obviously lethal injury; yet the appellant departed without delivering any further blow or blows to ensure that the complainant was killed;
(f)there was no evidence that the appellant targeted the complainant’s neck or that he had any specific aim to damage a vital organ; and
(g)there were no words accompanying the offending.
It was further submitted for the appellant that a reckless indifference to the injury caused could not prove an intent to kill.
[28]AWS para 26.
[29]AT 1-4 ll 6-7.
Discussion
In M v The Queen,[30] Mason CJ and Deane, Dawson and Toohey JJ observed:
“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.”[31]
[30][1994] HCA 63; (1994) 181 CLR 487.
[31]At 493. Citations omitted.
These observations were later cited as authoritative by the majority of French CJ, Gummow and Kiefel JJ in SKA v The Queen.[32] Their Honours then noted that the task for an appeal court is “to determine whether the evidence was such that it was open to a jury to conclude beyond reasonable doubt that the applicant was guilty of the offences with which he was charged”.[33]
[32][2011] HCA 13; (2011) 243 CLR 400 at [11].
[33]At [21].
It falls to this Court to make such a determination with regard to an intention to kill on the part of the appellant. Relevantly, the majority of Kiefel, Bell and Keane JJ remarked in Zaburoni v The Queen:[34]
“Where proof of the intention to produce a particular result is made an element of liability for an offence under the Code, the prosecution is required to establish that the accused meant to produce that result by his or her conduct. As the respondent correctly submits, knowledge or foresight of result, whether possible, probable or certain, is not a substitute in law for proof of a specific intent under the Code.”[35]
[34][2016] HCA 12; (2016) 256 CLR 482.
[35]At [14]. Citations omitted.
In this case, whether the appellant had an intention to kill at the time he struck the complainant was to be determined by inference, there being no direct evidence either way with respect to it. Thus, the following observations of the Court of Appeal of Victoria in AK v The Queen[36] also have relevance:
“Drawing an inference of intent from observed behaviour is the kind of task which jurors, as representatives of our community, are especially well equipped to undertake. The ‘purpose and the genius of the jury system is that it allows the ordinary experiences of ordinary people’ to inform the determination of factual matters, including the drawing of inferences.”[37]
[36][2021] VSCA 165.
[37]At 22, citing from the unanimous judgment of the High Court in Doney v The Queen (1990) 171 CLR 207 at 214.
The CCTV evidence, which was played to the jury during the trial and which they had the facility of viewing as they wished during their deliberations, and the photographic stills, together showed the appellant to have dressed before leaving his unit in a way that would conceal significantly his facial identity – the hoodie was over his head and he was a wearing a face mask. He had concealed a sizeable, bladed knife in his clothing.
The CCTV footage also showed the complainant clothed and lying on the paved surface outside the Telstra shop, facing the street without any cover over his body. The appellant walks past the complainant, and turns his head towards him as he does so. Shortly after this, the complainant rolls over, so that he now has his back to passing foot traffic. The appellant circles back towards the complainant and walks directly to him. The complainant, who was facing away from the appellant, could not have seen the latter approaching. There was no conversation between them or any other form of interchange.
From that evidence, the jury could reasonably infer that the appellant’s conduct was deliberative and controlled. His emotions had not been stirred. However, of itself, that evidence would not have justified the jury being satisfied beyond reasonable doubt that the appellant had an intention to kill the complainant.
The CCTV evidence then showed the appellant lean over the complainant, steadying himself with his left hand or arm on the adjacent wall, above the complainant’s head. The appellant withdrew the concealed knife and thrust it towards the complainant’s upper chest and lower neck area with a full swing of his right arm.
On that evidence, the jury would have justifiably inferred that the appellant intended to pierce the complainant’s body in that area with a knife blade and to do so with substantial force.
The risk to life of a wound that severs the neck area is a matter of common knowledge of which the jury would reasonably have assumed the appellant was aware. In the opinion of this Court, that, together with the evidence of Dr Cooper that the knife blade entered the complainant’s lower neck region with sufficient force to sever a major muscle in the neck, and her evidence as to the criticality of blood vessels to blood circulation and hence to life, would have justified the jury in being satisfied beyond reasonable doubt that the appellant intended to kill the complainant when he struck him.
The jury had before them a competing submission that, on the evidence, they could reasonably have been satisfied that the appellant intended to cause grievous bodily harm only. The jury may well have rejected that submission because, on the evidence, the appellant chose not to inflict a wound on another less vulnerable part of the complainant’s body, as he might more easily have done without leaning over the complainant and potentially alerting the latter to his presence. Rather than doing that, the appellant deliberately positioned himself so as to be able to strike the complainant with the knife on a part of the complainant’s body that was facing away from the appellant.
Further, this Court would reject the proposition advanced for the appellant that the jury ought to have inferred from the fact that the knife blade hit the complainant’s collar bone after entry, that the appellant intended to injure the collar bone only. The jury need not have so inferred. From the location of the entry of the knife in the lower neck area, they would have been justified in regarding the striking of the collar bone as a serendipitous consequence, rather than as an intended act.
Nor would this Court accept that the jury ought not to have been satisfied beyond reasonable doubt that the appellant had an intention to kill because he did not strike the complainant more than once with the knife. As the appellant well knew, he had struck the complainant in the vulnerable neck area with real force; the knife blade had pierced the skin; and it had gone a considerable distance into the complainant’s neck. It was not, of course, necessary that the appellant have killed the complainant in order to have had an intention to kill him.
Disposition
For these reasons, this Court concludes that the appellant has failed to establish his ground of appeal. His appeal ought therefore be dismissed.
Order
1.Appeal dismissed.
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