Conviction Upheld for Malicious Wounding with Intent Despite Intoxication

The Court of Criminal Appeal upheld the conviction of the appellant for maliciously wounding another with intent to inflict grievous bodily harm, rejecting arguments that his intoxication negated his capacity to form the requisite intent.

[ADDRESS] of Criminal Appeal

CITATION: [NAME] v R [2009] NSWCCA 39

HEARING DATE(S): 2 February 2009

JUDGMENT DATE: 26 February 2009

JUDGMENT OF: McClellan CJatCL at 1; [NAME] J at 14; [NAME] J at 15

DECISION: Appeal dismissed

CATCHWORDS: CRIMINAL LAW - appeal against conviction - malicious wounding - finding of no intent to murder not inconsistent with finding of intent to inflict grievous bodily harm

CATEGORY: Principal judgment

PARTIES: [NAME] (Appellant) The [NAME](S): CCA 2007/7704

COUNSEL: [redacted] P Miller ([NAME])

SOLICITORS: [redacted] Director of Public Prosecutions ([NAME])

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/51/0116

LOWER COURT JUDICIAL OFFICER: [NAME] OF DECISION: 10 March 2008

IN THE COURT OF CRIMINAL APPEAL 2007/7704

McCLELLAN CJ at [NAME] J

THURSDAY 26 FEBRUARY 2009 [NAME] v R Judgment 1 McCLELLAN CJ at [NAME]: The appellant was indicted on 2 counts. The first count alleged that on 18 November 2005 at Mullumbimby he did wound [NAME] with intent to murder him. The second count was that on the same day he maliciously wounded [NAME] with intent to do grievous bodily harm to him. By consent of the parties the trial proceeded before [NAME] without a jury. 2 The appellant was acquitted of the charge of wounding with intent to murder but convicted of the malicious wounding charge. He appeals from that conviction. 3 The issues at the trial were confined. Because the appellant had been drinking, excessively, on the night of the offence his counsel submitted that by reason of his intoxication the [NAME] could not prove that he had the required capacity to carry out either offence. The trial judge found that the appellant had the relevant capacity. There were then issues as to whether or not the appellant had the necessary intent to carry out either offence. The trial judge found that the [NAME] could not prove that the appellant had an intention to murder but was persuaded beyond reasonable doubt that he maliciously wounded [NAME] with intent to do grievous bodily harm to him. 4 The issues on the appeal were confined. The finding that the appellant had the relevant capacity was not challenged. However, it was submitted that his Honour's findings in relation to intention were in conflict and, having been acquitted of the attempted murder count, his Honour should have returned a verdict of not guilty in relation to the malicious wounding count. It was further submitted that having regard to the relevant facts a guilty verdict on the second count was not open.

Relevant facts 5 The appellant operated a [NAME] and on 18 November had spent the day setting up rides for the show at Bangalow. [NAME] was an employee of the appellant and had worked with him for some months. During the course of the day on 18 November 2005 the appellant consumed significant quantities of alcohol and at the end of the day asked the victim to drive him back to Mullumbimby where they were staying. [NAME] was sharing with another person a caravan provided for them by the appellant. 6 After they arrived at [NAME] consumed some alcohol and retired early to bed. The appellant continued drinking. [NAME] went to sleep and was awakened sometime between 2 and 3 in the morning by the appellant who had forced his way through the door of the caravan. The appellant asked where the light switch was and [NAME] said it was near the door. [NAME] thought the appellant had come in for a cigarette but the appellant said that was not what he wanted. [NAME] said the appellant climbed onto the bed, kneeled over him and with his legs either side of him put his right hand on [NAME]'s forehead. He then grabbed the knife and cut [NAME]'s throat. The appellant then said: "You're an unfortunate soul and you must die." After saying this the appellant again cut [NAME]'s throat. 7 Soon after the appellant's partner, [NAME], came in and asked the appellant what he was doing. The appellant apparently said he was cutting [NAME]'s throat. [NAME] asked for the knife which the appellant gave to her. [NAME] then left the caravan and organised for [NAME] to be taken to hospital where he was treated and later discharged. 8 The evidence was that after the appellant had cut [NAME]'s throat he continued to sit there saying that he would remain until [NAME] died. There was no apparent motive for the killing although the appellant told a psychiatrist, who subsequently diagnosed the appellant with serious depression, that he had committed the crime with the intention that he would be sentenced to imprisonment where he would be relieved of his personal difficulties. 9 The evidence made plain that the appellant was drunk on the night in question. However, [NAME] gave evidence that he was not unsteady on his feet. The trial judge also found that he was able to position himself on top of [NAME], take a knife and deliberately cut his throat on two occasions. The knife used by the appellant was a "[NAME]", a sophisticated form of pocket knife. Although the evidence did not directly support this finding, his Honour concluded that in order to use the knife the appellant must have opened it to reveal the blade. His Honour was satisfied that the appellant's actions were conscious and deliberate and that he appreciated that by applying the knife to [NAME]'s throat he was doing so with sufficient force as to be likely to cause serious bodily harm. Accordingly his Honour concluded: "So, having reviewed all that evidence, I am satisfied that the [NAME] have negatived the assertion on behalf of the defence that the alcohol consumption of the accused was such as to prevent him from being able to form any specific intent, and it falls upon me now to return to the indictment to consider the necessary elements." 10 Although the [NAME] submitted that the appellant's acts were deliberate and that the trial judge should conclude that he had the intention to murder from the expression by [NAME] of the words "You're going to die" and "I'll sit here while you die" his Honour was not satisfied that the [NAME] had established to the relevant standard that the appellant intended to kill [NAME]. His Honour said: "… cutting anybody across the throat with a knife sharp enough to be capable of inflicting those injuries, is a very serious and worrying act, but applying the burden of proof, I was not satisfied beyond reasonable doubt that the [NAME] has established there was an intent to murder, so as far as count 1 is concerned, I find the accused not guilty." 11 With respect to the second count his Honour was satisfied that the wounding was unlawful. His Honour then said: "To cut somebody's throat with a knife, having opened it, and then referring to the possible consequences, which I accept were said, namely that death might result, clearly indicates, in my view, a realisation that grievous bodily harm had resulted is hardly surprising, and it shows, in my view, to enable me to express the opinion that I am satisfied beyond reasonable doubt that at the time the accused wounded [NAME], he did intend to do grievous bodily harm to him, and insofar as it is necessary to ascribe any motive, I think the state of his anger and frustration at his own situation and predicament, partly caused by other circumstances, partly caused by his own activities in relation to gambling and drink, led him to a frame of mind where he was going to vent it on somebody, and [NAME] was the unfortunate person to receive it. So while there was a lack of specificity about the victim, there was no lack of specific intent as to what he was going to do, and the fact that that may have been an irrational action is perhaps accounted for by the alcohol, but that was not such as to negative the ability to form any specific intent. In the light of all that, I find the accused guilty on count 2 of this indictment." 12 The conclusion which his Honour formed in relation to count 2 was open. In my judgment a finding of intention to inflict grievous bodily harm was not inconsistent with a finding that the appellant did not have an intent to kill. Although his Honour's reasons were criticised, because there was no evidence that he had actually opened the knife to release the blade, I am not persuaded that this significantly impacts upon the conclusion which his Honour expressed. As the knife was a "[NAME]" the blade would have to have been released at some point for the appellant to have been able to inflict the wounds which he did on [NAME]'s throat. However, beyond that the fact that the appellant found his way to [NAME]'s caravan, forced the door, positioned himself on top of him and then used the knife, not once but twice, to inflict cuts to the throat supports a finding that he had an intent to injure [NAME]. This finding is further supported by the fact that when his wife, [NAME], came to the caravan and asked for the knife the appellant gave it to her in a voluntary act. Although undoubtedly the appellant was significantly affected by alcohol a finding that he nevertheless could form the relevant intent and had formed the relevant intent was open to his Honour and was correct. Having reviewed for myself the whole of the record of the trial I am satisfied that the appellant was rightly convicted. 13 In my opinion the appeal should be dismissed. 14 [NAME] J: I agree with McClellan CJ at [NAME]. 15 [NAME] J: I agree with McClellan CJ at [NAME]. **********

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