Riley v Tasmania
[2007] TASSC 61
•16 August 2007
[2007] TASSC 61
CITATION: Riley v Tasmania [2007] TASSC 61
PARTIES: RILEY, Galvin Gordon
v
TASMANIA (STATE OF)
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: CCA 28/2006
DELIVERED ON: 16 August 2007
DELIVERED AT: Hobart
HEARING DATE: 21 May 2007
JUDGMENT OF: Underwood CJ, Blow and Tennent JJ
CATCHWORDS:
Criminal Law – Appeal and new trial and enquiry after conviction – Appeal and new trial – Particular grounds – Unreasonable or insupportable verdict – Where evidence circumstantial – Whether reasonable hypothesis consistent with innocence.
Criminal Code (Tas), ss13(1) and 157(1).
M v R (1994) 181 CLR 487; Gipp v R (1998) 194 CLR 106, applied.
Aust Dig Criminal Law [966]
Criminal Law – Appeal and new trial and enquiry after conviction – Appeal and new trial – Miscarriage of justice – Particular circumstances including miscarriage – Misdirection and non-direction – Whether "lies direction" or similar direction should have been given - Crown did not rely on lies or post-offence conduct to prove guilt.
Edwards v R (1993) 178 CLR 193; Zoneff v R (2000) 200 CLR 234, distinguished.
R v Dat Tuan Nguyen (2001) 118 A Crim R 479, referred to.
Dhanhoa v R (2003) 217 CLR 1, applied.
Aust Dig Criminal Law [958]
REPRESENTATION:
Counsel:
Appellant: M J Brett and T Jago
Respondent: J N Perks
Solicitors:
Appellant: Legal Aid Commission of Tasmania
Respondent: Director of Public Prosecutions
Judgment Number: [2007] TASSC 61
Number of paragraphs: 46
Serial No 61/2007
File No CCA 28/2006
GALVIN GORDON RILEY v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
UNDERWOOD CJ
BLOW J
TENNENT J
16 August 2007
Orders of the Court
Appeal against conviction dismissed.
Serial No 61/2007
File No CCA 28/2006
GALVIN GORDON RILEY v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
UNDERWOOD CJ
16 August 2007
Introduction
The appellant has brought this appeal against his conviction for the murder of James Andrew Walley who died from a single rifle shot wound fired on 10 January 2005. The notice of appeal relies upon three grounds that can be shortly stated:
(1)The verdict is unsafe or unsatisfactory because the jury ought to have entertained a reasonable doubt about whether the discharge of the rifle was the result of a voluntary and intentional act.
(2)The learned trial judge erred by failing to give the jury a "lies' direction" with respect to two alleged lies told by the accused.
(3)The learned trial judge erred in directing the jury to ignore intoxication when considering what the appellant ought to have known pursuant to the Criminal Code, s157(1)(c).
The material facts
The Crown case was entirely circumstantial. In the early hours of the morning of 10 January 2005, on Cape Barren Island, the deceased was shot with a .22 calibre rifle. He died after being airlifted to hospital. The shooting occurred near a house at 18 Dam Road, Cape Barren Island. This house was occupied by Julie Spotswood. For several years Ms Spotswood and the deceased had been in what was called an "on again, off again" relationship. This relationship last resumed a few weeks before the shooting.
At the time of the shooting, Ms Spotswood, Ray Jackson, Christopher Maynard, as well as the deceased and the accused, were at or near the house that Ms Spotswood shared with the deceased at 18 Dam Road. All these people were drunk, and all but the deceased also affected by cannabis that had been smoked. Not surprisingly, there were many conflicts in the evidence of the events leading up to the critical moments immediately prior to the shooting. Fortunately, it is unnecessary to rehearse all these accounts. Mr Brett, senior counsel for the appellant, helpfully set out his submissions upon the basis of what the appellant accepts were the facts that the jury could reasonably have found and Mr Perks, counsel for the Crown has, equally helpfully, clearly set out where there is agreement and where there is dispute with the appellant's submissions.
In order to follow the submissions, it is necessary to describe the relevant topography. Dam Road is an unsealed gravel road. From the photographs, Ms Spotswood's house appears to be a modest, modern bungalow built with treated pine. There seems to be no front fence separating the house block from the gravel road. However, an ordinary suburban wooden paling fence, about 180 centimetres high runs down one side of the house, separating it from a large open paddock. To leave the house and go onto the paddock, it was necessary to either scale the fence or walk to the front of the house block and around the end of the fence separating it from the paddock. There was no fence separating this paddock from the road and track marks apparent in the photographs suggest that cars drove onto and parked in this paddock from time to time.
The evidence established that a drinking session began at the Spotswood house during the afternoon of 9 January 2005. On several occasions during the course of the afternoon and evening, the appellant left the Spotswood house and returned. Sometimes he went in his car. At one stage, a Ms Denise Gardiner joined the drinking party, but an argument broke out between her and one or two of the others, and she left. The appellant decided he would give Ms Gardiner a lift home.
It was open to the jury to conclude that before the appellant left on this occasion, there was an argument between him and the others, including the deceased, about whether the appellant could take a cask of wine with him. It was open to the jury to find that after the appellant took Ms Gardiner home, he went to his house, picked up his .22 calibre rifle, and some bullets and drove back to the Spotswood house, parking his car in the paddock close to Ms Spotswood's vehicle. The two cars were parked in the order of 30 metres from the fence. About halfway between the cars and the fence there was a campfire on which a wallaby had been cooking. Next to the fire were two canvas camping chairs.
It was open to the jury to find that on returning to the paddock, the appellant took his rifle from the car and fired two shots through a window into the house, knowing that at the time, there were people inside. The people who were then either in the house or outside in the paddock were Ms Spotswood, Mr Maynard, Mr Jackson, the deceased and the accused. It was open to the jury to find that after the two shots were fired into the house, the deceased went outside to remonstrate with the appellant and climbed over the fence into the paddock. It was open to the jury to conclude that a third shot was discharged from the appellant's rifle while he, the deceased, and Mr Maynard were in the paddock. A pool of blood invited the jury to conclude that the deceased was hit when he was about 12 metres from the appellant's car and fairly close to the campfire. Finally, it was open to the jury to find that Mr Maynard did not fire the fatal shot.
The essence of the appellant's case at trial was that there was no eye witness account of what caused the fatal shot to be discharged from the rifle, and no evidence of who was where when that shot was discharged and therefore the jury should not be satisfied to the requisite degree that the appellant fired the fatal shot or if he did, that his act of doing so was voluntary and intentional.
Ms Spotswood's evidence was that after the two shots were fired into the house, the deceased said that he was going to talk to the appellant and left via a sliding door at the front of the house. She said that she then went to bed and was awoken some time later by the appellant who told her that the deceased had fallen off the fence and been injured.
Mr Jackson, who was the appellant's brother-in-law and a good friend of his for over 20 years, said that he remembered Ms Gardiner leaving the premises and the appellant leaving shortly after her and that there had been an argument between the appellant and the deceased over a cask of wine. Mr Jackson said that after the appellant left, he went outside to have a drink with Mr Maynard who was near the fire. He said he was still there when the appellant returned to the property. He said that the appellant had a couple of drinks with him and Mr Maynard and then Mr Jackson went inside, leaving Mr Maynard and the appellant near the fire. Mr Jackson said that the deceased and Ms Spotswood were in the house when he went in. He said that Ms Spotswood said she was going to bed and that he and the deceased sat at the table for a while. Mr Jackson said that he recalled no shots being fired into the house, but said that the deceased did get up and go outside, but for no reason apparent to him. Mr Jackson said that he did not know that anything was wrong until the appellant came into the house and said that the deceased had been shot and to ring an ambulance.
Mr Maynard, who was also a friend of the appellant, gave evidence that he, too, remembered Ms Gardiner leaving after an argument between the appellant and the deceased over a wine cask. He said that he remembered the appellant returning to the house, but was very vague about the time this happened. With respect to the critical events, Mr Maynard's evidence was unsatisfactory to say the least. He said that he was in the paddock sitting next to the fire, cooking the wallaby. He said that as he was sitting there, his attention was drawn to the parked cars. He said he saw the appellant and the deceased standing near them and arguing. Mr Maynard said he did not see how either of the men came to be in that position, nor did he hear any gunshots. Mr Maynard said that the argument became nasty so he got up, walked over to the two men and stood between them. He said the deceased pushed him in the chest and he fell to the ground. Mr Maynard said that he got up and returned to the fire where he sat down with his back to the two men. After a few minutes he turned around and saw the deceased lying on the ground in a pool of blood. He said he went over to the deceased and administered first aid. Although Mr Maynard said that he saw and heard the two men arguing, he did not hear a shot fired and never saw a rifle.
Police officers were on the scene at about 6am the same morning and found the appellant standing at the driver's side door of his car. A .22 calibre rifle was lying on the back seat. It did not have a magazine. The appellant told police it was his rifle. An empty cartridge case was sitting on the bonnet just below the windscreen. Two more fired cartridge cases were found close to the pool of blood. Expert ballistics evidence was given that the rifle was in working order, with normal trigger pressure and not prone to accidental discharge. If dropped on its stock from a height of 40 centimetres onto the police test fire rubber mat, the rifle "occasionally" discharged. Expert opinion was that all three spent cartridges had been fired in the appellant's rifle. Forensic examination of the deceased's clothing showed ten particles of unburnt propellant close to the bullet's entry point. Test firing demonstrated that if a shot was fired more than 1.4 metres away from a test card, no unburnt propellant was deposited around the point of entry. However, unfortunately, it was not possible to conduct these test firings with ammunition made from the same batch as the bullet that killed the deceased came from, so the reliability of these tests was a little shaky.
The undisputed medical evidence was that the fatal bullet entered the deceased's right shoulder, passed briefly upwards through the subcutaneous tissue and out again. The projectile then entered the skull next to the right ear and passed upwards into the brain. However, the pathologist denied that the trajectory of the bullet as it passed through the body of the deceased indicated that the shot had been fired from "below him", and travelled upwards. The pathologist said that unless he knew where the assailant was standing, how he was holding the rifle, and how the victim was standing, he could not express any opinion about whether the bullet was fired from below the deceased or not. His evidence was confined to an opinion that the bullet's path was upwards through the shoulder and from right to left through the head. There was no opinion about who was doing what or standing or lying where at that time.
The pathologist gave evidence that in addition to the injuries caused by the gunshot and subsequent surgical intervention, there were bruises and abrasions on the right temple and right cheek. There were some "breaks or fractures" on the same cheek, near the nose, as well as an area of abrasions on the left cheek and left eyebrow. The expert opinion was that the injuries on one, but not both sides of the face, were consistent with having been caused by a fall off the fence. The bruising was recent. In addition, there was bruising to the right chest, with associated fractures to the fifth and sixth ribs. The fractures also appeared to have been recently caused. There was a small round blue bruise on the left side of the deceased's back, just below the neck. Finally, the pathologist noted what appeared to be self-inflicted needle marks on the body, which might have been the cause of some of the bruising. There was a bruise on the back of the right hand which may have been a needle mark, and bruises on the knuckles of the right third and fourth fingers.
The cross-examination of the pathologist was brief. It established that the deceased was about six feet two inches tall, that a fall could have caused "some of those injuries to [the deceased's] face", and that "a contact of some sort" could have caused the injuries to the knuckles. The pathologist answered, "yes" in answer to this question:
"If a body fell onto say the stop [sic stock?] of a rifle or something hard on the ground, from the height he's at, could that cause some broken ribs?"
No suggestion was put to the pathologist that the injuries could have been caused by a fight.
Ground 1
The appellant accepted that the jury could have been well satisfied that the deceased died from a gunshot wound suffered as a result of a bullet discharged from the appellant's rifle, and that shortly before that discharge, the rifle had been held by the appellant. The essence of his argument in support of ground 1 was that the verdict was unsafe or unsatisfactory because the totality of the evidence left open the reasonable possibility that the discharge was accidental, ie, not caused by a deliberate and intentional act on the part of the appellant.
Appellate approach to this ground is guided by the following passage taken from the joint judgment of the High Court in M v R (1994) 181 CLR 487 at 492 – 493 in these terms:
"Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory. Other terms may be used such as 'unjust or unsafe, (see Davies and Cody v The King (1937) 57 CLR 170, at p 180) or 'dangerous or unsafe' (see Ratten v The Queen (1974) 131 CLR at p 515. In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. See Raspor v The Queen (1958) 99 CLR 346, at pp 350-351; Plomp v The Queen (1963) 110 CLR 234 at pp 246, 250. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence (Morris v The Queen (1987) 163 CLR 454) and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand' (see Hayes v The Queen (1973) 47 ALJR 603, at p 604)."
By way of addition, I refer to the following passage from the judgment of Gaudron J in Gipp v R (1998) 194 CLR 106:
"It is well settled that, where it is contended that a verdict is unsafe or unsatisfactory, in the sense that the jury should have entertained a reasonable doubt as to guilt, '[a]n appellate court must itself consider the evidence in order to determine whether it was open to the jury to convict' Carr v The Queen (1988) 164 CLR 314 at 331 per Brennan J. And '[i]f the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.' M v The Queen (1994) 171 CLR 487 at 494 per Mason CJ, Deane, Dawson and Toohey JJ, referring to Chamberlain v The Queen [No 2] (1984) 153 CLR 521 at 618-619 and Chidiac v The Queen (1991) 171 CLR 432 at 443-444. See also Jones v The Queen (1997) 72 ALJR 78; 149 ALR 598. In that exercise, it is necessary for an appellate court to have regard to the whole of the evidence. And ordinarily, it will also be necessary to have regard to the trial judge's summing up."
The unchallenged ballistics evidence was that the gun was in good working order with normal trigger pressure and not liable to accidental discharge, except occasionally when dropped on its butt onto the test mat over a distance of 40 centimetres. Accordingly, absent any struggle between the appellant and the deceased, accidental discharge of the weapon was not a reasonable or rational hypothesis.
The inference that the jury must have drawn was that after an argument over a wine cask, the appellant went home, collected his rifle and returned, and the overwhelming evidence that the appellant fired two shots into the house, provide strong reason for concluding that the appellant was angry and aggressive. There was evidence from Mr Jackson that the deceased left the house in order to remonstrate with the appellant about firing two shots into the house and evidence from Mr Maynard that he did so verbally. There was no evidence from which the jury could have reasonably inferred that there was any physical struggle between the two men immediately prior to the fatal shot being discharged. It is true that Mr Maynard said that when he stepped between the two men, the deceased pushed him to the ground, but he said nothing about violence between the deceased and the appellant. As I have mentioned, the appellant's counsel at trial did not suggest to the pathologist that his findings were consistent with a fight having taken place between the deceased and another.
In his closing address to the jury, counsel for the appellant put to the jury that they should not be satisfied to the requisite degree that the gun was discharged as a result of a voluntary and intentional act. Counsel reviewed all the differences between the witnesses and pointed out that there was no direct evidence of the critical moments. Counsel put to the jury that what happened was a mystery ¾a word that he used several times ¾ and that there was "a big missing part of a puzzle". He suggested to the jury "someone could fall over, gun discharges". He suggested that the gun might have been dropped and discharged. Counsel did suggest at one stage, "Does [the deceased] remain aggressive after he'd shoved Maynard out of the way? It's a mystery", but he did not put to the jury that a reasonable hypothesis was that there was a struggle between the two men and somehow one of them involuntarily squeezed the trigger during the course of that struggle. Counsel concluded his address with the suggestion that the rifle could have been dropped and accidentally discharged. Shortly before putting that conclusion he said:
"So here you have a case in which the complete crux of it is totally covered in mystery. There is no direct evidence of any confrontation or any trigger pulling by Mr Riley. There's no evidence that he intended any harm, and on the contrary, he's happy throughout the night. The big mystery is for you, I think, and it's – it's speculation, it's a very dangerous thing too, but the ballistics says the gun goes off when dropped …".
The learned trial judge gave the jury a full and proper direction with respect to a voluntary and intentional act, in the course of which his Honour referred to accidental discharge by dropping, but made no reference to the hypothesis advanced on this appeal of accidental discharge during a struggle between the two men. This was no doubt because the suggestion of a struggle was not raised at trial. Counsel for the appellant did not suggest it to Mr Maynard during the course of cross-examination. Indeed, he put the reverse to Mr Maynard when he asked, "There was no physical contact between them was there?" Mr Maynard answered, "No, there wasn't".
When interviewed by police during the afternoon of the day of the shooting, the appellant denied arguing with anyone and denied shooting the deceased. When asked if he could explain the deceased being shot, he said he could not. He elected not to give evidence at his trial.
The learned trial judge gave the jury an impeccable direction with respect to circumstantial evidence that concluded with this direction:
"It is necessary not only that his guilt should be a rational inference but it should be the only rational inference that the circumstances enable you to draw. Now of course, the bare possibility of innocence should not prevent you from finding him guilty, provided that the inference of his guilt is the only inference that is reasonably open to you, after you consider all of the circumstances that the evidence have established."
Absent evidence from which a jury could infer that there was a physical struggle between the two men, and absent evidence from which the jury could infer that the gun was dropped on its butt from a height of 40 centimetres or more, it was clearly open for the jury to conclude that the only rational inference from all the evidence that they accepted was that the fatal shot was discharged by the appellant's voluntary and intentional act. Ground 1 is not made out.
Ground 2
Ground 2 relates to evidence of what the appellant said to Mr Maynard and what he said to the police after the shooting. Mr Maynard gave evidence that he spoke to the appellant at about 10 or 10.20 on the same morning as the shooting. He said that they were getting their stories right. There followed this passage in his evidence-in-chief:
"Can you give us some details about what was discussed and what was suggested and by whom? ..... It was suggested to say that Timber [the deceased] had climbed over the fence, fallen, hit his head, got back up, stumbled, fell again, where he had laid.
And you say 'it was suggested', suggested by whom? ..... I believe Boris [the appellant].
Okay. Do you recall whether you had any contribution as far as getting the stories straight? ..... I agreed.
You agreed with the suggestion? ..... Yes.
Okay. Do you recall Boris, during this discussion, do you recall Boris saying, accusing you of doing something? ..... He said that I'd kicked him in the head.
Kicked who in the head? ..... Timber.
Had you kicked him in the head? ..... No I did not.
When Boris accused you of kicking Timber in the head, did you say anything in response to that allegation? ..... I said I couldn't have kicked him because I had thongs on and they'd split and if I had kicked him I would have probably broken my toe or something like that, because of the condition of the thongs."
As mentioned earlier, when interviewed by police during the afternoon of the day of the shooting, the accused denied that he had shot the deceased. When asked what had happened, the interview proceeded as follows:
"gr We were standing around having a bbq – he went inside and when he came back out he jumped the fence and I reckon he caught his foot and then went down and hit his head on the ground
cfThen what happened
grHe got back up and took a few steps before falling over again
cfWhere were you
grI was standing behind the fire, but looking up towards the house, which was on my left
…
cfWhat happened next
grJames stayed down, I thought he was fucking around
cfWho checked on him
grChris [Maynard] and he said, 'He's not breathin', I then came to my senses and ran inside and said to Buck [Jackson] to ring an ambulance"
As counsel for the Crown correctly put to the jury in closing, counsel for the appellant did not suggest to Mr Maynard that the appellant did not have the conversation with Mr Maynard about them getting their stories straight and about the accused falling when he got over the fence. Counsel simply submitted to the jury that Mr Maynard agreed with the accused that that was the story they would tell because he was scared. Mr Maynard's evidence of what the appellant said to him after the shooting should not be categorised as evidence of lies told by the appellant. It was evidence that the appellant and Mr Maynard agreed to tell lies when questioned about the relevant events. This evidence is properly categorised as post-offence conduct. See R v Dat Tuan Nguyen (2001) 118 A Crim R 479.
With respect to the appellant's account to the police, the Crown did not suggest that the appellant was lying when he said that the deceased had fallen over the fence. In their addresses, both counsel accepted that the deceased may well have climbed the fence separating the house from the paddock on his way to remonstrate with the appellant and fallen off it. Counsel for the Crown suggested to the jury that such a fall might be the genesis of the account the appellant and Mr Maynard agreed upon and added, "but then [the accused] leaves out the important bit - after he got up I shot him." Accordingly, that part of the appellant's account to the police did not call for a direction of the kind given in Edwards v R (1993) 178 CLR 193.
It was, of course, the Crown case that the accused lied when he told the police that he did not shoot the deceased, but this does not mean that the jury should have been given an "Edwards" direction. The principal issue at trial was whether the appellant fired the fatal shot. The accused's statement to the police that he did not shoot the deceased could not be regarded as a lie tending to prove that he did shoot the deceased. That involves circuitous reasoning. Whether the appellant told the police a lie when he said he did not shoot the deceased and whether the appellant did fire the fatal shot both depended upon whether the jury was satisfied from all the other evidence that they accepted that the accused fired the fatal shot.
With respect to Mr Maynard's evidence of the appellant's post-offence conduct, being the other piece of evidence that is the subject of ground 2, counsel for the appellant accepted that the Crown did not rely upon Mr Maynard's evidence about him and the appellant getting their stories right as being lies tending to prove the Crown case. In Dat Tuan Nguyen and cases like it, the Crown relied upon post-offence conduct as being probative of guilt. See R v Chang (2003) 7 VLR 236. Such reliance may call for a warning based upon the warning referred to in Edwards v R, but this was not such a case because the Crown did not suggest that the post-offence conduct was probative of guilt. Zoneff v R (2000) 200 CLR 234 is authority for the proposition that if the Crown do not rely on a lie or, I would add, post-offence conduct, as proof of guilt, an Edwards direction should not be given. In Dhanhoa v R (2003) 217 CLR 1 the following passage in the judgment of Gleeson CJ and Hayne J at 12, made with respect to lies, is equally apposite to post-offence conduct:
"It is not necessary for a trial judge to give a direction, either of the kind referred to in Edwards, or of the kind referred to in Zoneff, every time it is suggested, in cross-examination or argument, that something that an accused person has said, either in court or out of court, is untrue or otherwise reflects adversely on his or her reliability. Where the prosecution does not contend that a lie is evidence of guilt, then, unless the judge apprehends that there is a real danger that the jury may apply such a process of reasoning, as a general rule it is unnecessary and inappropriate to give an Edwards direction. Zoneff was said to be an unusual case, and the direction there proposed was said to be appropriate where there is a risk of misunderstanding about the significance of possible lies. The present was not such a case."
There was no reliance on Mr Maynard's evidence of the post-offence conversation between him and the appellant as proof of guilt, nor was there a "real danger" that the jury may have applied an impermissible process of reasoning with respect to that evidence. The learned trial judge raised with counsel the issue of giving a lies direction. Counsel for the Crown submitted that a lies direction should not be given because "there is [sic] no identifiable lies told out of a consciousness of guilt". Counsel for the appellant at trial did not demur. He was quite right not to do so. The evidence did not call for any special direction from the trial judge. Ground 2 is not made out.
Ground 3
The remaining ground of appeal alleges error of law by the learned trial judge when directing the jury with respect to the Code, s157(1)(c). The claimed error was said to be that evidence of the accused's intoxication was irrelevant to the issue of whether the accused ought to have known that the unlawful act committed by him was likely to cause death in the circumstances. The learned trial judge gave the jury this direction:
"Now when you come though under that element to (c) for murder, when you come to determine whether he ought to have known that he was likely to cause death if he fired that rifle at that person, you disregard the fact that he was intoxicated. That's another direction I give you now, the law is that when the jury judges his actions and judges whether in the circumstances he was then in he ought to have known that he was likely to cause death, the jury should ignore the fact that he was intoxicated. You can have regard to all his other personal circumstances, such as, that he was experienced with firearms and he - it was his rifle, or things like that, but when you decide - judge him as to what he ought to have known was likely to happen if he pulled that trigger, intoxication is irrelevant, his state of intoxication is irrelevant."
Mr Brett accepted that the direction was in accordance with the authority of this Court as expounded by the majority in Attorney-General's Reference No 1 of 1996 (1998) 7 Tas R 293, and conceded that the learned trial judge was bound by that authority. However, Mr Brett submitted that leave should be granted to argue that Attorney-General's Reference No 1 of 1996 should not be followed and the appeal adjourned for determination by a bench of five judges.
In Gardenal-Williams v R [1989] Tas R 62, an appeal determined by a bench of five judges, it was held that although the Court of Criminal Appeal is not absolutely bound by its own decisions, the court will not hear argument that a previous decision of the court should not be followed unless leave to do so is granted, and if leave is granted, the appeal should be heard and determined by a bench of five judges. With respect to the doctrine of stare decisis, the court held that leave to argue that an earlier decision should be overruled, will only be granted in exceptional cases. With respect to what constituted exceptional circumstances, Wright J said at 87:
"Whilst the categories of cases in which a later court may overrule an earlier decision are not closed, it seems to me that unless the first ground in the present appeal succeeds on the basis that Reg v Hodgson [1985] Tas R 75 is shown to be clearly wrong, the present matter falls into none of the previously recognised categories acknowledged by earlier cases as in themselves warranting a review of the law. It has not been suggested that the decision in Reg v Hodgson was pronounced per incuriam in that a binding authority of a superior court or a relevant statutory provision was overlooked or ignored. It is not suggested that there are decisions of other Australian appellate courts, or of this Court, with which Reg v Hodgson is in conflict. It is not suggested that Reg v Hodgson has caused difficulties or injustices in the administration of the criminal law or has given rise to undesirable practices."
To the foregoing, Wright J added, at 89, as further possible grounds for granting leave, a dissenting judgment in the authority in respect of which a review is sought being obviously incorrect, or the majority judgments being patently incorrect because of flaws in their formulation or for other reason. Mr Brett accepted that he was bound by those principles but submitted that the chain of reasoning in Attorney-General's Reference No 1 of 1996 contains a manifest, as opposed to merely arguable, contradiction or flaw which vitiates the conclusion reached in that case.
In support of this proposition it was submitted that in Boughey v R (1986) 161 CLR 10, the High Court held that the expression "ought to have known" as enacted in the Code, s157(1)(c), was to be construed subjectively, viz, what the accused ought to have known, and therefore it is logical to take into account the accused's state of intoxication when considering that question. The submission was that herein lay a manifest flaw in the reasoning in Attorney-General's Reference No 1 of 1996.
I do not accept that submission. No issue of intoxication arose in Boughey v R, nor in the later decision of Hawkins v R (1994) 179 CLR 500. Further, the decision of Boughey v R does not cast any shadow on the reasoning of the majority in Attorney-General's Reference No 1 of 1996. The reasoning in that case, based upon the underlying principle developed through Snow v R [1962] Tas SR 271 and Palmer v R [1985] Tas R 138, is that the provisions of the Code make it clear that intoxication is only relevant to the issue of specific intent (leaving aside insanity) and then only if it has reached the degree that the accused was incapable of forming that intent. Contrary to Mr Brett's submission, had the reasoning in Attorney-General's Reference No 1 of 1996 been that intoxication is relevant to what the accused ought to have known as enacted in s157(1)(c), it would have been flawed as being contrary to a fundamental principle applicable to all the provisions in the Code.
I see no basis for granting leave to reconsider Attorney-General's Reference No 1 of 1996 and would dismiss the appeal.
File No CCA 28/2006
GALVIN GORDON RILEY v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW J
16 August 2007
I agree that this appeal should be dismissed, for the reasons stated by the learned Chief Justice. There is a little that I would like to add.
Ground 1 raises the question whether this Court thinks that the jury ought to have entertained a reasonable doubt as to whether the discharge of the rifle was the result of a voluntary and intentional act. Two hypotheses consistent with innocence were advanced by counsel for the appellant: (i) that the gun was discharged accidentally during a struggle between the appellant and the deceased – a struggle which the deceased never mentioned, and which no-one else saw; and (ii) that the rifle discharged as a result of it accidentally being dropped from a height of 40 centimetres or more. In my view it was open to the jury to reject both of those hypotheses as unreasonable because of the following evidence:
·There was evidence of a motive for the appellant to be violent towards the deceased. When the appellant was about to leave the Spotswood house to take Ms Gardiner home, he apparently wanted to take a wine cask with him, but the deceased objected to him doing so, and they argued.
·There was evidence of the appellant being very angry with the deceased thereafter. It was open to the jury to find that, after returning from taking Ms Gardiner home, the appellant fired two shots from his rifle through a window into the house, knowing that there were people inside.
·There was evidence that, in order for the rifle to discharge, it must have been loaded, it must have been cocked, and the safety catch must have been off.
·There was evidence suggesting that the appellant had some degree of competence or experience in relation to the handling of the rifle. It was his rifle. There was evidence that he used it to hunt wallabies.
·There was evidence suggesting that the appellant, at and around the time of the fatal shot, was sufficiently sober for him possibly to have taken appropriate care to prevent the accidental discharge of the rifle. Although he had been drinking, he had successfully driven Ms Gardiner home and driven back. There was evidence that, immediately after the fatal shot, he came into the house, said that the deceased had been shot, and told Mr Jackson to ring an ambulance. This evidence could be taken to suggest he was not too drunk to be careful with his rifle.
·There was evidence of a conversation between the appellant and Mr Maynard the following day during which the appellant, rather than expressing any regret about what had happened to the deceased, said, "That will teach them for fucking with my grog", and "No-one fucks with me".
·The appellant took part in an interview with police officers, but did not assert in that interview that the rifle had discharged accidentally, that he had had a struggle with the deceased, or that he had dropped the rifle. Although there was evidence of him speaking to a number of witnesses following the shooting, there was no evidence that he made any such suggestion to any of them.
Having regard to those matters, I think that it was open to the jury to find the appellant guilty, and I think that the circumstantial evidence was so strong that this was not a case in which the jury ought to have entertained a reasonable doubt as to whether the discharge of the rifle was the result of a voluntary and intentional act.
In relation to ground 3, I wish only to add that, in my view, this case would not provide a suitable vehicle for the reconsideration of Attorney-General's Reference No 1 of 1996 (1998) 7 Tas R 293. Whilst there was evidence of the appellant being intoxicated, I think that evidence fell short of suggesting that he was so intoxicated that he might have forgotten that shooting someone with a rifle was likely to cause death.
File No CCA 28/2006
GALVIN GORDON RILEY v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
TENNENT J
16 August 2007
I have had the benefit of reading the reasons for judgment of Underwood CJ and would agree with his reasoning and the conclusions in respect of each ground of appeal.
I would also dismiss the appeal.
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