R v Solomon

[1997] QCA 286

[1997] QCA 286

COURT OF APPEAL
PINCUS JA
McPHERSON JA

WILLIAMS J

CA No 136 of 1997
THE QUEEN
v.

JASON HESTON SOLOMON Appellant

BRISBANE
..DATE 22/07/97
220797 T16-17/RB28 M/T COA154/97
PINCUS JA: The appellant was convicted of murder in the Supreme
Court before Cullinane J. on 12 March last. There was no
dispute that he killed the deceased by stabbing her repeatedly
with a knife. The question is whether at that time he had the
intention set out in section 302(1)(a) of the Criminal Code,
that is, the intention to cause her death or to do her some
grievous bodily harm. There is an appeal on the ground that the
conviction was unsafe and unsatisfactory and this relates solely
to the question that there was such evidence of intoxication as
to preclude the conviction of murder.

There seems no reason to doubt that the appellant was affected by liquor when he stabbed the victim, who was his de facto wife.

But as Mr Justice Gibbs said in Viro (1987) 141 C.L.R. 88 AT 112 "... evidence that the accused was intoxicated will not in itself entitle him to an acquittal because a person when intoxicated may form the necessary intent".

I emphasise that the only issue before the jury was one of intent.

Cullinane J. directed the jury in terms of section 28 of the Code and also along the lines of the statement in Viro which I have mentioned. His Honour also told them that if they entertained a reasonable doubt that the appellant had the relevant intention he would not be guilty of murder. No complaint is made about these directions, but I should remark in passing that His Honour did not direct the jury in accordance with what is said in Crozier [1965] Qd.R. 133 at 134 to be the correct direction in such a case. It is my respectful opinion 220797 T16-17/RB28 M/T COA154/97

that, either through an error in printing or otherwise, the Crozier direction is in truth wrong in so far as it uses the expression "if you are not satisfied ... that through intoxication the prisoner was capable of forming an intent ... then it is your duty to acquit of wilful murder and murder".

In the present case some evidence of intention is to be found in statements attributed by witnesses to the appellant. A G Baird, had been drinking alcohol with the appellant on the day of the killing, heard the appellant and the woman whom he killed, Lynell Hudson, having an argument and heard the appellant say that he was going to kill "Nellie", apparently a reference to Ms Hudson. About five minutes later he heard girls screaming and went to the room where the appellant and Ms Hudson were; the appellant had a knife and was about to strike Ms Hudson; A G Baird intervened, tackled the appellant and pushed him back; Ms Hudson fled, although she at that stage had received the wounds which caused her death. A Mrs Sycamore who also heard the screaming said she heard the appellant say to Ms Hudson about this time - it seems likely it was after the attack - "you'll die tonight". Henrietta Baird said that she heard an argument between the appellant and Ms Hudson who expressed a wish to phone her mother. At this stage, Henrietta Baird said, the appellant kicked Ms Hudson and Ms Hudson threatened to call the police, but the appellant told her she was not allowed to touch the phone. Subsequently, Henrietta Baird saw the appellant attack and stab Ms Hudson. There was also evidence as to the stage of drunkenness which the appellant had reached. A G Baird said that he was himself a bit drunk, that the appellant had had a few but was not "real drunk, just a bit intoxicated". Robert 220797 T16-17/RB28 M/T COA154/97

Baird was asked in cross-examination whether the appellant was real drunk on the night in question and said "Yeah, he was out of it, yeah". Henrietta Baird said that the appellant was "past tipsy".

The police later interviewed the appellant briefly but unproductively, since he was not prepared to talk about the killing and, it should be mentioned, gave no evidence in his own defence. Sergeant Howard said that he had no doubt that the appellant was showing some effects of liquor, but claims to have noticed the appellant sitting upright in the police car and said that he responded appropriately to questions.

It appears that this interview took place something like an hour and a half after the events which led to the death of the victim. Detective Terry, another police officer, was of the opinion that the appellant was affected by liquor but certainly not drunk. He also expressed the opinion that the appellant was coherent as far as questioning was concerned. We are informed that the jury had the advantage of being able to hear and that they in fact did hear the tapes of the police interviews; that would have assisted them to form an opinion about the state of intoxication which the appellant had reached.

There appear to be some differences in the evidence about observations of the appellant's state of intoxication, one possible explanation of which is that the appellant was, so to speak, shocked into greater sobriety by the knowledge that he killed his friend. Another possibility is that those who swore that the appellant appeared to be in a greater state of 220797 T16-17/RB28 M/T COA154/97

intoxication than might be inferred from the police evidence were for one reason or another in error - or of course, vice versa.

But this was very much a jury question, as of course was the point whether, whatever the appellant's degree of intoxication, the jury was satisfied that the appellant had the requisite intention. It is not the law that if a person kills another and there is evidence that the killer was drunk at the time, the jury cannot conclude that the killing was a murder. The jury in this case must have thought that to some extent at least and perhaps to a large extent the killing was a result of anger induced by drink, but this is not to say that it was other than an intentional killing.

The appeal should in my view be dismissed.

McPHERSON JA: I agree.

WILLIAMS J: I agree.

PINCUS JA: The appeal is dismissed.

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