R v Scherer

[1993] QCA 381

IN THE COURT OF APPEAL [1993] QCA 381

SUPREME COURT OF QUEENSLAND

C.A. No. 241 of 1993

Brisbane
[R. v. Scherer]

BETWEEN:

T H E Q U E E N

v.
NOAH MADHU SCHERER

Appellant

The President
Mr Justice Davies

Mr Justice Thomas

Judgment delivered 11/10/93

Judgment of the Court

APPEAL DISMISSED

CATCHWORDS:	CRIMINAL LAW - Verdicts - Attempted murder - circumstantial evidence of intent - whether unsafe.
Counsel:	Mr. S. Herbert Q.C. for the appellant Mr. P. Ridgeway for the respondent
Solicitors:	Legal Aid Office for the appellant Director of Prosecutions for the respondent

Hearing Date: 07/10/93
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 241 of 1993

Before The President

Mr Justice Davies Mr Justice Thomas

[R. v. Scherer]

BETWEEN:

T H E Q U E E N

v.
NOAH MADHU SCHERER

Appellant

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 11/10/93
The appellant has appealed against his conviction on two charges of attempted murder in the Supreme Court at Cairns on 17 June 1993. Each offence related to shots fired by the appellant at police officers named Carless and Teske on 30 January 1993. The grounds of appeal are as follows:

"1. The verdicts were unsafe and unsatisfactory in that as the mental element, namely an intention to kill, was to be proved by circumstantial evidence alone, a reasonable jury, properly instructed, could not have excluded beyond reasonable doubt, the alternative intentions that the proven facts could support.

2.    His Honour erred in permitting evidence to be led, or alternatively to be led in too much detail, concerning the events alleged to have taken place at the locus in quo prior to the arrival there of the persons the subjects of the alleged offences."

On or about 27 January 1993, two men named Mitchell and Beattie went to a remote bush camp occupied by the appellant and one Nicholls to work on a car. The appellant and Nicholls held Mitchell and Beattie captive and later also took captive Beattie's son who came to the camp site looking for his father. On 29 January, another person went to the site and subsequently alerted police.

At or about dawn on 30 January, a number of police arrived at the camp, Nicholls was apprehended and the appellant was pursued by three officers, Carless, Teske and Brodie.

Both Carless and Teske swore that two shots were fired by the appellant at Carless and that at least one of those shots was the result of a deliberate aiming and levelling of a shot- gun. Carless saw the appellant raise the shotgun to his shoulder, aim and fire at him. Carless dived to the ground as another shot was fired by the appellant. Carless' evidence was that the first shot appeared to go to his right and the second was very close to his left ear; he actually felt the wind from the passage of the bullet.
The appellant then went down on one knee and fired a shot at Teske which Teske heard pass to his right, very close by, and strike a tree almost directly behind him.
Subsequently, after gunfire from the police officers, the appellant surrendered. He had no more ammunition. An empty shotgun was found near him and three spent cartridge cases for one ounce solid shot projectiles were found nearby. It was subsequently established by forensic investigation that the shotgun had fired the relevant cartridges.
There were a large number of marijuana plants growing near the camp and the appellant was found in the vicinity of a drum containing a large quantity of cannabis. Further, the appellant had a substantial sum of money on his person.
There was ample evidence to provide a basis for an inference that the shots at Carless and Teske were intended to kill and not merely to warn or injure them, and the jury was fully entitled to be satisfied beyond reasonable doubt of the intent necessary to establish the offences of attempted murder of Carless and Teske.

The second ground of appeal concerns evidence given by Mr Beattie of events which had occurred prior to the arrival of the police. The trial judge ruled that the evidence was admissible, as was acknowledged in this Court and, in the exercise of his discretion, excluded evidence of "some of the more extraordinary conduct", as it was described by Counsel for the appellant, but permitted an abbreviated and less prejudicial version of what had occurred to be given by Mr Beattie. This course was virtually conceded at the trial by Counsel representing the appellant and, as accepted in this Court by Counsel now representing the appellant, "the evidence which was admitted was virtually in accordance with the submission of Counsel for the accused at that time." Further, Counsel for the appellant at the trial did not undertake any cross examination of Beattie.

A perusal of the brief evidence given by Beattie leaves the Court in no doubt that the evidence was material background to the apprehension of the appellant and relevant and probative with respect to the question of his intent.

There is no substance in either of the grounds of appeal, which is dismissed.