Wright v The Queen
[2003] WASCA 189
•22 AUGUST 2003
WRIGHT -v- THE QUEEN [2003] WASCA 189
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 189 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:231/2002 | 4 AUGUST 2003 | |
| Coram: | STEYTLER J MILLER J PULLIN J | 22/08/03 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted, Appeal dismissed | ||
| A | |||
| PDF Version |
| Parties: | DAVID LAWRENCE WRIGHT THE QUEEN |
Catchwords: | Criminal law Whether verdict of guilty of unlawful wounding was unreasonable or could not be supported having regard to the evidence Circumstantial evidence Whether reasonable hypothesis consistent with innocence Meaning of "reasonable hypothesis" |
Legislation: | Criminal Code, s 689 |
Case References: | Chamberlain v The Queen (No 2) (1984) 153 CLR 521 Jones v The Queen (1997) 191 CLR 439 M v The Queen (1994) 181 CLR 487 Shepherd v The Queen (1990) 170 CLR 573 Shepherd v The Queen (1990) 170 CLR 573 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : WRIGHT -v- THE QUEEN [2003] WASCA 189 CORAM : STEYTLER J
- MILLER J
PULLIN J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Whether verdict of guilty of unlawful wounding was unreasonable or could not be supported having regard to the evidence - Circumstantial evidence - Whether reasonable hypothesis consistent with innocence - Meaning of "reasonable hypothesis"
Legislation:
Criminal Code, s 689
Result:
Leave to appeal granted
(Page 2)
Appeal dismissed
Category: A
Representation:
Counsel:
Applicant : Mr J A Sutherland
Respondent : Mr D Dempster
Solicitors:
Applicant : McDonald & Sutherland
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Chamberlain v The Queen (No 2) (1984) 153 CLR 521
Jones v The Queen (1997) 191 CLR 439
M v The Queen (1994) 181 CLR 487
Shepherd v The Queen (1990) 170 CLR 573
Case(s) also cited:
Nil
(Page 3)
1 STEYTLER J: I have had the advantage of reading the judgment of Pullin J. It is consequently unnecessary for me to restate the facts and circumstances giving rise to this appeal.
2 There is only one ground of appeal, being that to the effect that the verdict of the jury on count 2, being that of unlawful wounding, was unreasonable and cannot be supported having regard to the evidence, with the consequence that there was a miscarriage of justice.
3 As appears from the judgment of Pullin J, the following facts, as they emerged at the applicant's trial, were uncontroversial. The applicant was one of two men who attacked the complainant at about 11 pm on the night of 23 December 2001. The other was his brother, Paul Wright. While the applicant suggested, in his grounds of appeal, that a third person had also been involved in the attack, this contention was not pursued at the hearing of the appeal and there was no evidence to support it. The complainant was stabbed three times during the course of the assault, but he did not see a knife or even realise that he had been stabbed until after his assailants had left the scene. Later that night, at about 2.45 am on 24 December 2001, the applicant, who was then very intoxicated, was found by two police constables on a doorstep of a house in Girrawheen. They decided to take him to his home but, before doing so, searched him and found a fold-out knife, with the blade in the locked-out position, tucked in the front of his pants. He was also found to have had a necklace, a key tag and a motel room key, all of which he had earlier removed from the complainant's possession. The folding knife was later found to have had traces of what appeared to be blood in the recess of the handle into which the blade folded and, upon analysis, this disclosed DNA which matched that of the complainant. A second knife was recovered from the garden of Paul Wright's home. This, too, showed the possible presence of blood, but no typable DNA could be recovered from it.
4 Given that the jury must necessarily have rejected the explanation offered by the applicant for his possession of the knife, and for the DNA found on it, the question raised by the sole ground of appeal effectively comes down to that of whether, on the evidence which I have described, it was open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt on the count of unlawful wounding.
5 In my opinion, it was. There were only three available hypotheses. The first was that the applicant alone stabbed the complainant. The second was that both the applicant and his brother stabbed the complainant. The third was that the applicant's brother alone stabbed the
(Page 4)
- complainant. Only the third of those hypotheses would assist the applicant. In my opinion, the jury was entitled to exclude it as a reasonable hypothesis, in the sense described by Dawson J in Shepherd v The Queen (1990) 170 CLR 573, at 579, in circumstances in which it was satisfied beyond reasonable doubt that the applicant was one of those who had attacked the complainant, that the complainant had been stabbed three times during the assault and that the applicant had been found, only hours later, with an open knife, tucked into the front of his pants, containing the complainant's DNA and in which the applicant had, in the eyes of the jury, who had seen and heard his evidence, no credible explanation for his possession of the knife or for the presence, on it, of the complainant's DNA.
6 It consequently seems to me that there was no miscarriage of justice. Like Pullin J, while I would grant leave to appeal, I would dismiss the appeal.
7 MILLER J: I have had the opportunity of reading in draft the reasons for judgment delivered by Pullin J in this matter. I agree with those reasons and with his Honour's conclusion and I have nothing to add.
8 PULLIN J: On 21 November 2002, the applicant, David Lawrence Wright, was found guilty by a jury of unlawfully wounding Glen Bradley Kirkland, the complainant, on 23 December 2001 at Westminster. The applicant seeks leave to appeal against his conviction on grounds that there was a miscarriage of justice because, it is argued, the verdict of the jury was unreasonable or could not be supported having regard to the evidence.
9 The evidence led by the Crown was as follows. The complainant was in a room in a house in Westminster, kneeling or sitting, with some amphetamines which he was going to give to two other people in the house.
10 The applicant and his brother, Paul Wright, and another person called "Shane", came into the room. The brothers attacked the complainant. The complainant said that he was severely beaten. He thought that the beating involved kicks and punches, but after the applicant and the others left it was discovered that the complainant's injuries included three knife wounds. He had not seen a knife used during the attack and did not know that he had been stabbed until he saw the injuries afterwards. He was taken off to hospital. A necklace was removed from him during the attack, and after the attack he found that his car keys, which were attached
(Page 5)
- to a Libra zodiac key tag, and a Pacific Motels room key which he had on his person, had been removed.
11 At about 2.45 am on 24 December 2001, two police constables went for unrelated reasons to 48 Pannel Way, Girrawheen. They found the applicant asleep on the doorstep. He was very intoxicated. They decided to take him to his home. Before putting him in the van, they searched him and found a small fold-out knife with the blade in the locked-out position tucked in the front of his pants. He was asked if the knife was his, and he gave no response. Some amphetamines were found on his person. He also had in his possession a necklace, a Libra zodiac key tag and a Pacific Motel room key. He was arrested and charged with possession of the knife and with possession of the amphetamines and released on bail. Later on that day, he returned to the police station and demanded the return of the necklace. He took the necklace, and it has not been seen since.
12 On 6 January 2002, the complainant reported to the police what had happened to him in the attack on 23 December 2002. As a result, detectives began enquiries and they obtained a photocopy of the type of necklace which had been stolen. The constables who had arrested the applicant on 24 December 2001 became aware of this and recognised the necklace as similar to the one that was returned to the applicant on 24 December 2001.
13 On 25 January 2002, the detectives spoke to the applicant's brother, Paul Wright, and a statement was taken from him. This person took the detectives to his home, and in the garden a fixed-blade knife was recovered.
14 On 31 January 2002, the detective arrested the applicant, who declined to be interviewed. The knife found on the applicant on the morning of 24 December 2001 and the one recovered from Paul Wright's garden were sent for testing. The fixed-blade knife showed the possible presence of blood, but no typable DNA could be recovered from the handle of the knife or the blade.
15 So far as the folding knife is concerned, tests revealed the possible presence of blood in the recess of the handle into which the blade folded. Typable DNA was recovered from the blade of the folding knife and that DNA showed a mixture of DNA profiles. Importantly, some of the DNA on the knife was matched with that of the complainant.
(Page 6)
16 The Crown contended that the jury should conclude from the above evidence that the knife found on the person of the applicant on 24 December 2001 was used to stab the complainant during the assault.
17 At the trial before Anderson J, the applicant gave evidence. His evidence was that he went with his brother and a man called "Shane", to the house where the complainant was located. He said that he saw that the complainant was armed with a kitchen knife and the complainant lunged at him with it. The applicant went to kick the kitchen knife out of his hand and instead connected with the complainant's chin. He said that he went to push the complainant back, he then received a blow to the head, and that he passed out. When he came to, he was on the lounge room floor and the complainant was lying to his right, hardly breathing. The applicant then picked up the gold necklace and the keys and amphetamines. He then left the house and returned to his house with his brother. At that location, his brother showed him two knives and asked what he should do with them. One was a fixed-blade knife, which he said the complainant had, and the other one a folding knife, which he said was "Shane's". The applicant said he took the latter knife, folded it up and put it into his belt. He said that he had not handled or seen the folding knife until it was given to him by his co-accused.
18 The applicant's case on appeal is as follows. The applicant accepts that it was open to the jury to reject the applicant's testimony but argues that the indirect or circumstantial evidence which remained for it to consider did not permit the jury to conclude beyond a reasonable doubt that no person other than the applicant had inflicted the wounds.
19 The task of the Court of Criminal Appeal in these circumstances was explained in M v The Queen (1994) 181 CLR 487 at 493 and in Jones vThe Queen (1997) 191 CLR 439. In M v The Queen (supra), Mason CJ, Deane, Dawson and Toohey JJ said that the test for an unsafe or unsatisfactory verdict was whether the Court thought that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. Their Honours emphasised that it was not the function of the Court to answer the question merely by examining the transcript of evidence and the exhibits. This is because the Court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury had the benefit of having seen and heard the witnesses. Their Honours said at 494:
(Page 7)
- "In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If 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."
20 This is a case where, if the applicant was to be convicted, the conviction would have to be based upon circumstantial evidence because no-one observed him stab the complainant. In Chamberlain v The Queen (No 2) (1984) 153 CLR 521, Gibbs CJ and Mason J said at 536 that:
"When the evidence is circumstantial, the jury, … are required to draw an inference from the circumstances of the case … in a criminal case the circumstances must exclude any reasonable hypothesis consistent with innocence."
21 In Shepherd v The Queen (1990) 170 CLR 573 at 581, Dawson J also referred to a "reasonable hypothesis". The ordinary meaning of the word "hypothesis" may mean a proposition proposed as an explanation for some phenomena, either in the light of established facts or based on conjecture, or it may mean mere assumption or guess. See "Macquarie Dictionary".
22 In my opinion, in using the word "hypothesis", Gibbs CJ and Mason J in Chamberlain v The Queen (supra) and Dawson J in Shepherd v The Queen (supra), were not using the word to mean a mere assumption or guess or an explanation based on conjecture not reasonably open on the evidence in the case. In both Chamberlain v The Queen (supra)and Shepherd v The Queen (supra), it was said that the hypothesis must be a "reasonable" hypothesis. This means that the explanation consistent with innocence must be one which is "reasonably
(Page 8)
- open on the evidence" in the case. See Shepherd v The Queen (supra), per Dawson J at 579.
23 The explanation the applicant advanced was that he did not stab the complainant. He said he was given the folding knife after the assault. The submission on his behalf was that he may have come into contact with the complainant's DNA during the assault and that he later handled the folding knife, and this is why DNA was found on it.
24 If that explanation had been accepted by the jury, then they would have found the applicant not guilty of unlawful wounding. Counsel for the applicant then argued that assuming the jurors did not believe the applicant's evidence, and that they believed he had the folding knife on him at the time of the attack, there remained the hypothesis that it was the applicant's brother who stabbed the complainant three times with the fixed-blade knife, that the DNA of the complainant found its way onto the hands of the complainant and from there onto the folding knife. Counsel argued that this was a reasonable hypothesis consistent with innocence which could not be excluded.
25 In my opinion, this is not a reasonable hypothesis. There was no evidence that the fixed-blade knife had any of the complainant's DNA on it. The hypothesis is no more than conjecture.
26 This is very much a case where the jury's advantage in seeing and hearing the applicant give evidence was of critical importance. The prosecution case otherwise had none of the deficiencies described in the passage I have quoted from M v The Queen (supra).
27 The options open to the jury were to accept the explanation put forward by the accused, in which case the prosecution case would not have been proved. Alternatively, they could reject the applicant's explanation. If they did so, they would still have had to decide whether they were satisfied beyond reasonable doubt that the prosecution had proved all the elements of the case. However, if they were so satisfied they could convict, and they did so.
28 In my opinion, there was no miscarriage of justice. Leave to appeal has been sought by the applicant. It may not be necessary, but I will assume that it was. I would grant leave but would dismiss the appeal.
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