Intoxication

Allsop P

1. On 13, 14, 15, 16, 20, 21, 22 and 23 August 2007 the appellant, Dennis Arthur Bellchambers, stood his trial on a charge that on 25 May 2005 at Dunbogan he maliciously inflicted grievous bodily harm upon Ms Julie Ann Barry with intent to do grievous bodily harm contrary to the Crimes Act 1900 (NSW), s33. The jury returned a verdict of guilty. The trial judge sentenced the appellant to a term of imprisonment consisting of a non-parole period of 10 years commencing on 23 November 2007 and a balance of term of 3 years commencing on 23 November 2017.

2. The only ground of appeal argued was that the trial judge erred in his direction as to intoxication. For the reasons below I am of the view that the trial judge did err in his direction in this respect. Given that there was no complaint made at the trial by counsel for the appellant about the direction given a question of leave under the Criminal Appeal Rules, rule 4 arises. This, in turn, raises the operation of the proviso in the Criminal Appeal Act 1912 (NSW), s6(1).

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22. The appellant’s case was that although he had hit Ms Barry twice that afternoon he did not cause the injury to her superior sagittal sinus which must have been caused by herself either in a tantrum or accidentally when affected by alcohol such as falling down the stairs or hitting her head on the wall or on the bedside table.

23. From the above factual background, the following can be stated, with some confidence, as matters apparent to the jury. First, the relationship between the appellant and Ms Barry was one characterised by the mutual consumption of significant amounts of alcohol and by violence. Secondly, Ms Barry suffered or was likely to have suffered a number of her injuries including the black eyes and swollen jaw before 25 May. In that regard, the stark photographs of her facial and bodily injuries that were in evidence do not necessarily reveal the damage caused to her on 25 May, being the day to which the indictment was directed. This explains why the Crown case was directed to the wound on the top of the head as the very serious injury to found the element of grievous bodily harm in the charge. Thirdly, despite the appellant’s denials to the police that he was intoxicated, the evidence of the drinking patterns of both him and Ms Barry, of the purchases of alcohol, of the observation of their affected state and the extremely high blood alcohol level of Ms Barry all point to the likelihood or at least real possibility of both the appellant and Ms Barry being significantly intoxicated during the afternoon and early evening of 25 May.

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27. The direction was as to capacity to form the specific intent. There was no direction as to the relevance or possible relevance of intoxication to whether the appellant did (as opposed to could) form the relevant specific intent.

28. On appeal the Crown accepted this as an error. The judge, however, returned to the topic next morning. What he said the next morning cured, so the Crown argued, any defect of the previous afternoon…

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34. The statement of principle, above, destroys the Crown’s argument on appeal that the further direction on 23 August cured the direction based on capacity to form the intention the afternoon before. As Gibbs J said, it is not enough to say that the Crown must prove intent, the jury should be told that the fact (if it be the case) that the accused was intoxicated may be regarded for the purpose of deciding whether the specific intent existed.

37. Ultimately in argument on appeal, the Crown came close to accepting that the flaw in the direction given in the afternoon of 22 August was not cured the following morning. In my view there were two, arguably three errors. First, the clear direction as to capacity misled the jury into a false issue – the direction should have been as to whether the specific intent was held, not whether there was capacity to form it. Secondly, that was not overcome by reiterating that the Crown must prove intention. It was necessary to draw together the possibility of a lack of specific intent and intoxication. Thirdly, in particular, in the context of these errors, it was necessary to say something more about the care with which one might approach any inference about specific intent from the seriousness or nature of the injuries inflicted.

Johnson J

42. I agree.

Price J

43. I agree.

McClellelan CJ at CL

1. I agree with Blanch J.

Blanch J

2. The applicant seeks an extension of time within which to appeal against his conviction for murder and for leave to appeal against the sentence imposed. The grounds of appeal are:

(1) The trial miscarried as a result of a failure to direct on intoxication.

(2) The trial miscarried as a result of a failure to insufficiently direct on reckless indifference.

(3) The verdict was unreasonable.

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10. The applicant gave evidence at trial that during the day and evening prior to the arrival of the deceased he had smoked three or four cones of cannabis which he shared with two of his guests, Mr Thompson and Ms Walker. He said that prior to the arrival of the deceased the last occasion he had used cannabis was at about 9.00 p.m. or about three hours prior to the arrival of the deceased. He was asked in chief how he was feeling so far as the marijuana was concerned and the following passage of evidence occurred…

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11. He also gave evidence that on the afternoon of 2 October 2007 he had taken half a gram of amphetamine on three or four occasions and he had a further half a gram of amphetamine in the five to ten minutes between the time the deceased left his residence and later returned attacking him. His account was that on the night the deceased was killed he had come, then left and then returned. The applicant said the total amount of amphetamine of about one gram had an effect on him. He was asked in cross-examination to describe it and he said "It sort of - it picks you up. It picks you up. Like, if you play sport it picks you up. You know what I mean? It'll fix your - it'll - your reflexes speed up, more energy." He went on to say "I was just - just cruising, just cruised. It just made me cruise."

12. In the course of the closing address by the Crown Prosecutor, the trial judge asked the defence whether any directions were sought relating to the taking of amphetamine and defence counsel indicated the defence would seek to rely on the use of cannabis and amphetamine in relation to the subjective element of self-defence. At page 1076 of the appeal book her Honour referred to the fact there was no pharmacological evidence about the effect of marijuana and she was concerned the jury were being asked to speculate. At page 1088 her Honour said:

"The mere fact that he had a cone of marijuana three hours before the deceased came around to his house leaves, in my thinking, no likelihood or any real possibility that your client was intoxicated at the time of the stabbing."

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20. So far as the trial itself was concerned the approach taken by the defence was to advance the proposition that the applicant was acting in self-defence because he believed it was necessary for him to use the knife to defend himself and that in making a judgment about the accused's belief it was necessary to take into account he was affected by drugs. It would have been tactically difficult for the defence to mount an alternative argument before a jury that the accused did not foresee the probability of death or serious injury because of the effect of the drugs.

21. The question raised is whether, in view of the evidence given, the trial judge should have directed the jury that because of that evidence they should acquit the accused of murder and find him guilty of manslaughter, if the Crown had failed to prove beyond a reasonable doubt the accused did foresee the probability of death or serious injury because of the evidence of intoxication by drugs.

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35. The authorities clearly establish the need to alert the jury to all relevant legal considerations even if they are not relied on by the defence because sometimes there may be tactical reasons to explain the omission by the defence. On the other hand if the evidence is not capable of raising a doubt it is permissible for the judge to decline to put the issue before a jury even when asked by counsel to do so.

36. In this case the only evidence of intoxication was the somewhat imprecise evidence of the applicant that he was "whacked" or "out of it" or "cruising" and his detailed evidence of his actions that night and his recollection of them contradicts any suggestion that his mental state was such as to raise as a reasonable possibility the fact that he did not have the relevant intent. In those circumstances I do not believe the trial judge erred in not placing the issue before the jury.

37. It follows that even if I had been able to conclude there was evidence such as to require it to be placed before a jury, I would also conclude that no substantial miscarriage of justice has occurred in accordance with the proviso to s6(1) Criminal Appeal Act 1912 because of the weakness of the evidence.

Hislop J

74. I agree with Blanch J.

MacFarlan JA

1. By a judgment dated 8 August 2014 a District Court judge, sitting without a jury, convicted the appellant of an offence that on 27 July 2013 in Alexandria, New South Wales, he “used an offensive instrument, namely a motor vehicle, with intent to prevent the lawful apprehension of himself” (see s 33B(1)(a) of the Crimes Act 1900 (NSW)). He was acquitted of a similar charge relating to an earlier incident but pleaded guilty to, and was convicted of, an offence of driving a motor vehicle without the consent of the owner, whilst another person was in the motor vehicle (see s 154C(1)).

2. The appellant appeals (or in the case of the first ground, seeks leave to appeal) against the first conviction on the following grounds:

“1. The learned trial judge’s verdict on count two was unreasonable and cannot be supported having regard to the evidence.

2. His Honour erred in holding intoxication was irrelevant to the issue of whether or not the appellant used the vehicle as an offensive instrument.

3. Should the conviction verdict on count two be quashed, it is submitted that the appellant should be resentenced on count three.”

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DETERMINATION OF THE APPEAL – GROUND 2: INTOXICATION

25. In support of this ground, the appellant submitted that s 428C of the Crimes Act (see [10] above) rendered the appellant’s intoxication relevant to a consideration of whether or not the appellant used the subject vehicle as an offensive instrument because of s 428B(2)’s classification of an offence under s 33B as an offence of “specific intent”.

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39. Considered as a whole, Part 11A manifests a legislative intention to preclude intoxication from being taken into account except in the circumstances identified in that Part. This is most clearly evident from s 428H which, as discussed above, abolishes the common law principle allowing intoxication to be taken into account in determining criminal liability. Mr Whelan’s Second Reading Speech provides further evidence of this policy (see [30] above). The only exception to the policy is that stated in s 428C which permits intoxication to be taken into account in determining “whether the person had the intention to cause the specific result necessary for an offence of specific intent”. For the reasons given above, the intention presently in question, namely, to use the vehicle as an offensive instrument, is not intention of that type, although the intention to which s 33B also refers, namely, of preventing or hindering lawful apprehension or detention, is. However, that latter intention is not in issue as the trial judge’s finding that it was present was not challenged.

40. Part 11A does not expressly prohibit regard to intoxication in respect of the basic or general intent presently in question because s 428D only applies to “an offence other than an offence of specific intent” and s 33B is an offence of specific intent. Nevertheless, Part 11A impliedly achieves that result because, as I have said, it manifests a legislative intention to prohibit regard to intoxication except where specifically permitted by the Part, with no such specific permission being presently relevant. As a result, the trial judge was correct in concluding that the appellant’s intoxication was irrelevant to the determination of whether he had the basic or general intent of using the vehicle as an offensive instrument. While any ambiguity that remains after applying the ordinary rules of statutory construction should be resolved in the appellant’s favour because the Crimes Act is a penal statute (Barker v The Queen [1983] HCA 18; 153 CLR 338 at 355), in my view no such ambiguity exists.

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46. I am persuaded that what I assume for present purposes was a misdirection by the trial judge did not deprive the appellant of a fairly open chance of acquittal. There is no challenge to the trial judge’s finding that, notwithstanding the appellant’s intoxication, he intended to prevent or hinder his lawful apprehension or detention. This conclusion was obvious on the evidence at the trial. In the circumstances of this case, that intention necessarily encompassed the appellant’s basic or general intent to use the vehicle as an offensive instrument (assuming the correctness of my conclusion in respect of Ground One of the appeal). Thus, the appellant’s struggle to wrestle free of the police officers’ hold and his pressing of the vehicle’s accelerator were designed to assist him in evading lawful apprehension. They both served not only that purpose but also the more immediate, and entirely consistent, purpose of freeing himself. A finding that the appellant’s intoxication did not prevent him forming the intent to achieve the more immediate purpose, as well as the intent to prevent or hinder his lawful apprehension, would have been inevitable if the trial judge had considered that, as a matter of law, he was able, or bound, to take into account the appellant’s intoxication in determining whether the appellant intended to use the vehicle as an offensive instrument.

RA Hulme J

48. I agree with Macfarlan JA.

Wilson J

49. I agree with Macfarlan JA.