KNIGHT v. THE QUEEN
(1992) 175 CLR 495
5 November 1992
Criminal Law—Attempt—Attempted murder—Mental element—Intent to kill—Intent dependent on inference from other facts—Guilty verdict sustainable only where intent only reasonable inference open.
MASON C.J., DAWSON AND TOOHEY JJ. The appellant was presented for trial in the Supreme Court of Victoria upon four counts. The first count was that of the murder of Gaetano Giovanni Battaglia. The second count was that of the attempted murder of Nino Peter Salvo. The third and fourth counts, which were alternatives to the second count, were respectively a count of intentionally causing serious injury to Salvo without lawful excuse and a count of recklessly causing serious injury to Salvo without lawful excuse. The appellant was convicted of manslaughter on the first count, for which he was sentenced to imprisonment for six years, and of attempted murder on the second count, for which he was sentenced to imprisonment for seven years. The learned trial judge directed that the appellant serve four and a half years of the sentence for manslaughter concurrently with the sentence for attempted murder and he set a minimum term of four years and nine months before the appellant was to be eligible for parole.
2. The charges against the appellant arose out of a disturbance that occurred in the sports hall at the Werribee Special Development School during the evening of Tuesday, 30 September 1986. It appears that on the preceding Friday a dispute had arisen at a discotheque at the Italian Social Club at Werribee between a friend of the appellant called Walsh and another person called Maugeri. As a result it was arranged that a kick boxing fight would be held on Sunday. Walsh was to participate in this fight and he requested the appellant to be at the fight in case anyone else attempted to intervene. The fight did not eventuate. However, evidence was given that, on the Sunday, Walsh and the appellant approached a group of people, including one Depasquale, and that the appellant said to them something like “Remember me? I am back”. On being told that he “was after the wrong people”, the appellant apparently walked away. Evidence was also given that the following day, when Depasquale drove past the appellant, the appellant walked off the footpath and pointed his fingers towards Depasquale in the manner of pointing a gun. And there was evidence that threats of violence, of which the appellant was aware, were made against the appellant by Depasquale and persons who would appear to have been associates of Depasquale.
3. Walsh was to conduct dancing classes on the Tuesday evening at the sports hall and he requested the appellant to be there. Early on the Tuesday evening and before the appellant arrived at the hall, Depasquale and another person went there, had an altercation with Walsh during which Walsh was assaulted, and left. There was some evidence that one of the assailants displayed to Walsh a gun that he was carrying in a shoulder holster.
4. Some time later on the Tuesday evening, the appellant was picked up by one of Walsh’s friends in a car and driven to the hall. In that car there was a .22 calibre rifle which was owned by Walsh. Walsh had shown the rifle to the appellant the previous day at the house where the appellant was staying with Walsh, but it was not entirely clear how the rifle came to be in the car. The appellant said in his record of interview that the rifle was not then loaded.
5. Shortly after the appellant arrived at the hall, a group variously estimated but apparently of some 15 to 30 people, consisting largely of associates of Maugeri and Depasquale, drove up in a number of vehicles. There was evidence that at least some of them came intending to fight with Walsh and his friends. Some of the group brought with them, or obtained in the vicinity of the hall, sticks, pieces of wood and baseball bats although, apparently following a command given by Salvo, these were not taken into the hall or used in the subsequent commotion.
6. The appellant said in his unsworn statement that he took the rifle from the car when he saw these cars pull up and that he did so because he was scared. According to the appellant, the magazine for the rifle was in his pocket and he put the rifle down behind a door which connected the hall and the foyer that led into the hall. He then went into a kitchen which was located just off the foyer.
7. A number of the group which drove up managed to enter the hall and fighting broke out between some of them and Walsh and three of Walsh’s friends. A few minutes later, the appellant came out of the kitchen and picked up the rifle from behind the door. He said that he did this because his friends were being hurt and he was scared and he only wanted to get the assailants out of the hall. The appellant said that the magazine was in the rifle when he picked it up but that he could not remember either cocking the rifle or loading it. One witness gave evidence that the appellant came into the foyer holding the rifle “in a combat position”, with one hand on the barrel and the other around the trigger, said something like “Fuck the lot of youse” and proceeded to the entrance to the hall. Someone then yelled out “He’s got a gun”, whereupon Battaglia spun around. The appellant pushed the rifle into Battaglia’s stomach and, a couple of seconds later, the rifle was fired. However, the witness who gave this evidence was unable to see whether Battaglia grabbed the rifle. The appellant said that Battaglia did grab the barrel of the rifle and that he, the appellant, had then pulled away. The appellant was recorded in his record of interview as saying that the rifle discharged, but at trial he said that he was not aware of a shot having been fired. Both in his record of interview and at the trial the appellant stated that he did not know that Battaglia had been shot. He denied that he intended to kill or shoot Battaglia or, indeed, anyone.
8. Evidence was given that the appellant then stood with the rifle at waist height waving it about “with one hand back and one hand forward”. According to the evidence, the appellant then walked into the hall, holding the rifle in this manner, moving it from side to side and pointing it “everywhere”. At this stage it appears that there were only four of the invading group, including Salvo, left in the hall, the others having run out upon hearing the cry “gun” or something similar. The evidence of one witness was that the appellant then “stormed down” to this group, pointing the rifle at them. The evidence of another witness was that the appellant moved quickly towards the group, waving the rifle around aggressively and pointing it in front of him. However, another witness gave evidence that the appellant was pointing the barrel of the rifle down and Salvo himself described the appellant as waving the rifle around holding it at waist height and not pointing it in any particular direction.
9. Three of the invaders ran up the hall and out the exit doors. But Salvo said that his escape was blocked by the appellant standing in front of the doors and that the appellant moved towards him with the rifle pointing at his stomach. According to Salvo, he waited until the appellant got closer and then grabbed the rifle with his right hand, pulling the rifle away from his stomach. He said that a “split second” later a shot went off and that he and the appellant struggled with each other, the appellant trying to point the rifle towards Salvo and Salvo trying to keep it away. Salvo told the jury that during this struggle the appellant headbutted him and he punched the appellant. Salvo concluded this part of his evidence by saying that as the rifle again came towards him, pointing towards his stomach, he pulled the rifle down and, a “split second” later, another shot went off hitting him in the right testicle. Salvo described the struggle as involving considerable strength.
10. The appellant’s version of events was different. He said that he approached the group with the rifle in front of him at an angle of 30 to 45 degrees from the parallel but not pointing anywhere in particular. He told the group, including Salvo, to leave, saying “Get out. Get out of the hall and leave us alone” and, possibly, “Fuck off”. The appellant said that Salvo hit him on the side of the face. He said that Salvo then grabbed the barrel of the rifle and tried to pull it out of his hands, that he pulled back, that the two struggled together, that Salvo pulled down the barrel of the rifle and that Salvo was eventually knocked away by a kick from Walsh. The appellant said that he was not aware that the rifle had discharged twice or that Salvo had been shot and he said that he did not intend to shoot or kill Salvo or anyone. He said that, during the struggle, he was scared that Salvo would take the rifle from him and use it on him or on others in the hall. The rifle, which was self-loading, required an initial cocking. The appellant could not recall cocking or recocking the rifle, although an unfired cartridge was located in the hall near the scene of the struggle between the appellant and Salvo and it was reasonable to infer from this that the rifle had at some stage been recocked.
11. Other witnesses gave evidence of a struggle occurring between the appellant and Salvo and one witness in particular described the two as struggling with bent legs, facing one another and not moving around, each with one arm on the other’s shoulder with one of Salvo’s hands being on the barrel of the rifle and one of the appellant’s hands being somewhere near the trigger. There was evidence from which the jury could conclude that the time between the two shots was about ten seconds.
12. Despite the appellant’s denial that he was aware of the rifle having been discharged at the hall, evidence was given that later that evening he told one of Walsh’s friends that he had “fired two shots to get them out of the place because we were getting a hiding”.
13. Evidence was given that, a few years before the events of the Tuesday evening, the appellant was “given a hiding” at the Italian Social Club by some patrons and the panels of a car owned by one of the appellant’s friends were kicked in by Salvo and others. Salvo testified that he had given the appellant the hiding, although on the Tuesday evening in question he was only seventy per cent sure that the appellant was the person with whom he had fought. The appellant confirmed that he had been involved in the earlier fight but denied that he knew who else was involved in it and said that he had no particular feelings about that fight. More particularly, the appellant denied that he recognized Salvo at the hall on the Tuesday evening.
14. There was evidence that the rifle had no stock and that, as the trigger guard was attached to the stock, there was no trigger guard for the rifle. An expert witness testified that, because the rifle was self-loading, once the magazine was in place, the rifle cocked and the safety catch in the fire position, the bullets contained in the magazine could be fired one at a time simply by pressing and releasing the trigger without reloading or recocking the weapon. The evidence was that the only method by which the rifle could be discharged (whether accidentally or otherwise) was by the application of pressure to the trigger. The pressure needed to discharge the rifle was said to be 5.25 pounds, the normal range for a weapon of that sort being 3 to 6 pounds. The appellant in his record of interview said that he had no experience in using firearms.
15. The jury were told that Salvo and eight others of the group of assailants who had come to the hall had been convicted of riot, but Salvo denied having taken part in any fighting before the struggle with the appellant. However, there was evidence that he had been asked to come to the fight to help, that he may indeed have been fighting and that he was trained in karate and kick boxing.
16. Shortly after the struggle with Salvo ended, the appellant came out of the building and there was some evidence that, when he did so, he fired the rifle twice in the general direction of the retreating group of assailants, although he was not aiming the rifle specifically at them. However, no cartridges were found outside the building. Further, as the magazine had a nine cartridge capacity and as only four cartridges were found (namely, three in the hall, consisting of two fired ones and one unfired one, and one fired cartridge in the foyer), the jury might well have concluded that the appellant did not fire any shots outside the building. The appellant himself said that he did go out the front of the building with the rifle but that he did not point it at anybody and did not say anything.
17. After leaving the hall, and on the same night, the appellant disposed of the rifle by throwing it into the sea. He also shaved off his moustache. He said that he shaved off his moustache because he was afraid of the group of assailants who had come to the hall that night. Finally, there was evidence from which the jury could conclude that the appellant had initially lied to the police about his activities on the Tuesday evening.
18. The appellant sought leave to appeal to the Full Court of the Supreme Court against his conviction of attempted murder on the ground that the verdict was unsafe and unsatisfactory. Upon that count, the prosecution bore the onus of proving beyond reasonable doubt that the appellant fired the shot alleged to constitute the attempt with intent to kill. This is because the intention which must accompany the inchoate crime of attempt is an intention to commit the complete offence ((1) See D.PP. v. Stonehouse (1978) AC 55, at p 68.). It follows that an accused is not guilty of attempted murder unless he intends to kill ((2) See Alister v. The Queen (1984) 154 CLR 404, at pp 421-423). An intention to cause grievous bodily harm may constitute the malice aforethought required for murder where death ensues, but for there to be attempted murder there must be an intention to cause the death which is an essential element of the completed crime of murder.
19. It was the second shot fired by the appellant during the struggle with Salvo which was alleged by the prosecution to constitute the attempted murder. No charge was laid in respect of the first shot, which was the shot that missed Salvo, and the prosecution conceded, at all events in the Full Court, that the first shot was not fired with intent to kill.
20. The Full Court (Young C.J. and Nathan J.; Crockett J. dissenting) dismissed the appellant’s application for leave to appeal. The appellant had argued that even if the evidence concerning his intention at the time the second shot was fired was consistent with an intention to kill, it was also consistent with an absence of that intention. There being competing hypotheses, neither of which could be excluded, he submitted that the jury were bound to have a reasonable doubt whether he fired the second shot with intent to kill. In rejecting this argument, Young C.J. took the view that it could only succeed if the Court concluded that the two inferences, one consistent with guilt and the other consistent with innocence, were equally open. He concluded that the two inferences were not equally open. Nathan J. held that the jury were entitled to conclude that there were no competing hypotheses and that the evidence led only to the conclusion that the second shot was fired with intent to kill. Crockett J., in dissent, accepted the appellant’s argument, holding that the evidence as to the appellant’s state of mind at the relevant time was equivocal and incapable of sustaining a finding that he fired with intent to kill. For this reason he concluded that the verdict was unsafe.
21. The question is not whether the trial judge failed to give an appropriate direction to the jury, but whether the jury, acting reasonably, must have entertained a reasonable doubt about the guilt of the appellant ((3) Whitehorn v. The Queen (1983) 152 CLR 657, at p 688; Chamberlain v. The Queen (No.2) (1984) 153 CLR 521, at p 534; Morris v. The Queen (1987) 163 CLR 454, at pp 461, 478; Chidiac v. The Queen (1991) 171 CLR 432, at pp 443, 451, 458, 461.). In his charge, the trial judge instructed the jury to the effect that they should only find by inference an element of the crime charged if there were no other inference or inferences which were favourable to the appellant reasonably open upon the facts. A direction in those terms is often called for where the prosecution relies upon circumstantial evidence ((4) See In re Hodge (1838) 2 Lewin 227, at p 228 (168 ER 1136, at p 1137); Peacock v. The King (1911) 13 CLR 619, at p 634; Plomp v. The Queen (1963) 110 CLR 234, at pp 243, 252; Grant v. The Queen (1975) 11 ALR 503; Barca v. The Queen (1975) 133 CLR 82, at p 104; Shepherd v. The Queen (1990) 170 CLR 573, at p 578.). However, it is a direction which is no more than an amplification of the rule that the prosecution must prove its case beyond reasonable doubt and the question to which it draws attention – that arising from the existence of competing hypotheses or inferences – may occur in a limited way in a case which is otherwise one of direct rather than circumstantial evidence. This was such a case where there was direct evidence that Salvo was shot – indeed there was no dispute about that – and the only real issue was the state of mind of the appellant at the time the shot was fired. The state of mind of the appellant was necessarily a matter of inference from other facts found by the jury.
22. In those circumstances, the reasoning process which must be employed if the onus of proof beyond reasonable doubt is to remain upon the prosecution is well recognized. As Dixon J. said in Martin v. Osborne ((5) (1936) 55 CLR 367, at p 375):
“If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference. In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation.”
In Plomp v. The Queen ((6) (1963) 110 CLR, at p 243) Dixon C.J. cited his previous observation in Martin v. Osborne and acknowledged the difficulty found in stating the rule, a difficulty which he said “has not been overcome by employing the expression ‘more consistent’ as if there could be degrees of consistency”. His Honour attempted clarification by citing his further words in Martin v. Osborne ((7) (1936) 55 CLR, at p 375):
“This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed.”
23. With respect, Young C.J. was in error in the view which he expressed below that the appellant could only succeed in his argument if the two inferences said to be open – one consistent with innocence and the other consistent with guilt – were equally open. There are not, as Dixon C.J. observed, degrees of consistency and, if a reasonable jury ought to have found that an inference or hypothesis consistent with innocence was open on the evidence, then it ought to have given the appellant the benefit of the doubt necessarily created by that circumstance.
24. The question which arose in the Full Court and which arises in this appeal is whether the verdict of the jury on the second count was unsafe and unsatisfactory. That question can, in the circumstances of this case, be rephrased to ask whether the jury, acting reasonably, could have rejected as a rational inference the possibility that the appellant fired, without an intent to kill, the shot which hit Salvo. In considering that question, the Full Court were required to make their own assessment of the evidence, within the limits imposed by the fact that they neither saw nor heard the witnesses ((8) See Chidiac v. The Queen (1991) 171 CLR, at pp 443-444, 453, 462; Carr v. The Queen (1988) 165 CLR 314, at p 331). They were required to act upon that view of the facts which the jury were entitled to take having seen and heard the witnesses ((9) See Chidiac v. The Queen (1991) 171 CLR, at p 452).
25. The evidence undoubtedly disclosed the existence of previous hostility between the appellant and Salvo or, at least, between the appellant and the group of which Salvo was a member. It was thus open to the jury to conclude that the appellant had deliberately taken the rifle to the hall with the intention of firing it should an occasion to do so arise. And the jury might well have inferred that it was the appellant who, for this reason, loaded and cocked the rifle so that it was capable of being fired.
26. The jury found the appellant guilty only of the manslaughter of Battaglia but provocation was left to them in relation to the charge of murdering Battaglia. The verdict of manslaughter was, therefore, not necessarily inconsistent with the formation of an intent on the part of the appellant to kill Salvo. In any event, the jury were entitled to separate the events surrounding the shooting of Battaglia from those which occurred in relation to Salvo. They may have concluded that the appellant deliberately stalked Salvo after the fighting in the hall had ceased or all but ceased.
27. And the jury may well have disbelieved the appellant’s story, having regard to the way in which he disposed of the gun, shaved off his moustache and, upon one view of the evidence, told lies to the police when first questioned about the events of the Tuesday evening.
28. Nevertheless, even assuming that the jury decided all of these matters against the appellant, it does not appear to us to be possible to exclude, as not being reasonably open on the evidence, the hypothesis or inference that the appellant did not fire the shot which hit Salvo with intent to kill. The prosecution concedes that the evidence does not disclose that the first shot fired during the struggle between the appellant and Salvo was fired with intent to kill. Yet the second shot was fired during the continuation of the same struggle within a short time of the first shot. There was no evidence that the appellant had his finger on the trigger of the rifle during the struggle. The absence of a trigger guard meant that the rifle could easily have been fired as a consequence of the struggle rather than as a result of the conscious application of pressure to the trigger. And, immediately before the rifle discharged, it was pointing at Salvo’s stomach, although Salvo managed to push it down so that he was actually shot in the groin.
29. The verdict of the jury obviously entails a finding that the rifle was not discharged accidentally, but the evidence, in our view, leaves it entirely open that the second shot was fired recklessly by the appellant without the intent necessary to sustain a charge of attempted murder. That possibility could not reasonably have been excluded by the jury, even if they were of the view that the evidence was also consistent with an intent to kill on the part of the appellant.
30. No doubt there were circumstances which were apparent only to the jury, such as the demeanour of the witnesses, the size and physique of the appellant in comparison with those of Salvo and the way in which the witnesses demonstrated how the appellant handled the rifle. But even accepting these matters to have been determined by the jury in a manner unfavourable to the appellant, it was nevertheless, in our view, not possible for the jury, acting reasonably, to have excluded as a rational inference the possibility that the second shot was fired without an intent to kill.
31. The verdict of the jury finding the appellant guilty of attempted murder was, for these reasons, unsafe and unsatisfactory and ought to be set aside. Had the Full Court reached this conclusion it would, under s.569(2) of the Crimes Act 1958 (Vict.), have had the power to substitute for the verdict found by the jury a verdict of guilty of another offence available to the jury on the presentment if it appeared to the Full Court that the jury must have been satisfied of facts proving that other offence. In our view, this Court should exercise that power and substitute a verdict of guilty of recklessly causing serious injury for the verdict of guilty of attempted murder, this being the course favoured by Crockett J. The matter should then be remitted to the Full Court in order that the appellant might be re-sentenced.
BRENNAN AND GAUDRON JJ. The appellant, Peter George Knight, was convicted of manslaughter of Gaetano Giovanni Battaglia and of attempted murder of Nino Peter Salvo before the Supreme Court of Victoria. His appeal to the Court of Criminal Appeal was dismissed. The present appeal relates solely to his conviction for attempted murder. The events giving rise to both charges occurred at Werribee on the evening of Tuesday, 30 September 1986. They arose out of some hostility between, on the one hand, Knight’s friend Neville Walsh and Knight and, on the other, a group of people who were patrons of the Italian Social Club in Werribee. To place the relevant events in context, a brief history is necessary. It is taken from evidence given at the trial which the jury was entitled to act upon in reaching a verdict.
2. Walsh lived at Werribee in a house occupied by David Batrich and Batrich’s girlfriend, Robyn Taylor. On Friday evening, 26 September 1986, he visited the Italian Social Club and became involved in an altercation. The incident generated considerable ill-feeling. Walsh felt in need of some support, physical as well as moral. He asked his friend Peter Knight, whom he described as a “big bloke”, to come from Footscray, where he lived, to Werribee and to stay in the house. Knight slept there on Sunday night and Monday night. On Tuesday evening, Walsh, who had some expertise in jazz and disco dancing, was conducting a dance class in the sports hall at the Werribee Special Development School. Two men, Santarosa and Depasquale, who were patrons of the Italian Social Club, came to the door of the hall while the class was doing warming-up exercises. When Walsh went to the door of the hall to find out what they wanted, they pushed him into a kitchen adjacent to the foyer to the hall and punched and kicked him. One of these men had a gun. They left and Walsh returned to his class.
3. Walsh had previously asked Knight to come to the hall that evening. Batrich drove Knight to the hall. Knight brought with him Walsh’s .22 calibre self-loading rifle and a magazine which would hold 9 bullets. Knight told the police he loaded 8 bullets into the magazine. Walsh had shown him the rifle and magazine the night before. When Knight and Batrich arrived at the hall, Knight heard one of Walsh’s class members telling Batrich that Walsh had been assaulted and that one of the assailants had a pistol under his jacket. Shortly afterwards, according to unsworn evidence given by Knight, a number of cars arrived at the hall. They brought supporters of Santarosa and Depasquale. As the headlights came down the road, Knight went out to Batrich’s car, took the rifle, attached the magazine, and brought the rifle into the foyer and hid it behind a door leading from the foyer into the hall.
4. The number of supporters was variously estimated. The number was probably between 15 and 30. When the supporters arrived, one of them called out: “We are all going to kill you”. Although the doors of the building had been shut, the intruders broke into the hall and disrupted the dance class. A group, including Depasquale, attacked Walsh. The fighting spread to other men in the hall. Knight, who had been hiding in the kitchen, came out into the foyer, reclaimed the gun, cocked it ready to fire and held it in what one witness described as a “combat position”, one hand on the trigger, one on the barrel. The gun may not have had a trigger guard, but it had a safety catch which must have been in the firing position. A witness said that Knight called out: “Fuck the lot of youse”. Knight moved left towards the entrance of the hall. Tommy Battaglia was standing in the doorway of the hall. He turned to face the foyer as someone called out: “He’s got a gun”. One witness said that Knight simply “pushed the gun into (Battaglia’s) stomach and fired”. Knight gave an exculpatory account to the police, saying that someone “grabbed the barrel and the gun went off”. In his unsworn evidence, Knight said that Battaglia grabbed the barrel of the gun and he, Knight, pulled it away. Contrary to what he had told the police, Knight said he was not aware of a shot at that stage. Battaglia later died in hospital.
5. Knight then moved into the hall. According to Salvo, the fighting had stopped because “everyone just started panicking and screaming and yelling out ‘He’s got a gun, he’s got a gun’ and everyone started dispersing everywhere trying to get out”. Knight was blocking Salvo’s escape. Knight was holding the gun at waist height, moving quickly, “crouched over” and “bobbing up and down”. He was waving the barrel of the gun around. He approached Salvo from at least 10 metres away, mimicking Salvo’s feints to the left or right and pointing the gun at his stomach. As Knight approached, Salvo grabbed the barrel of the gun which had been pointing at his stomach and pulled it to one side. Knight was holding the other end near the trigger. As Salvo pulled the gun to one side Knight kept resisting. A shot was fired. It did not strike anyone. Knight “head butted” Salvo and Salvo punched Knight. The two men struggled as Knight tried to point the gun towards Salvo and Salvo kept trying to move it away. Salvo said that although he was using all the force he could, Knight resisted with great strength.
6. The gun was brought back to Salvo’s stomach and he tried to push it down. A shot went off, injuring Salvo in the groin. Subsequent testing showed that a pressure of 2.38 kgs (5 1/4 lbs) was needed to discharge the gun. When Salvo dropped to the ground, Knight walked away. Walsh then started punching and kicking Salvo as he lay on the ground, but he said in evidence that he did not realize Salvo had been shot. In evidence, Knight said he was unaware that the gun had discharged. A short time after the incident, Knight had told Batrich that he had “fired two shots to get them out of the place because we were getting a hiding”. There is no doubt that the intruders dispersed quickly after shots were fired. There was evidence that, as they were running back to their cars, Knight discharged 2 further shots in their direction. If that occurred, Knight might have loaded more bullets to the magazine. It was found by the police early next morning to contain 5 bullets.
7. Soon afterwards Knight went with another witness, Andrew Gauld, to the house of Batrich’s mother. During the evening Knight shaved off his moustache. He said he did this because he was scared. At the house, Knight, Batrich and Robyn Taylor heard a news item which said that police were looking for Batrich’s car. Knight told Batrich to “go to the police station and sort it out”.
8. In evidence, Knight said that he discovered later in the evening from a news item that 2 people had been shot and then he was “scared, terrified, frightened”. Robyn Taylor drove Knight to the beach in Werribee South. Knight took the metal part of the gun, which had earlier been hidden in a manhole in the roof of Mrs Batrich’s house, walked to the end of the pier and threw it into the water. They then stopped at a cliff, where Knight threw the plastic handle of the gun into the water. Robyn Taylor said Knight’s behaviour was “calm”; he might have been nervous. They returned to Mrs Batrich’s house and remained there until 3.55am on Wednesday, when the police came and took Knight and Robyn Taylor to the police station. At first, Knight told the police he had been babysitting all night. He denied being at the school or using a firearm that evening and he denied having shaved off his moustache. Later he admitted having had a gun at the hall but he said in a record of interview that he did not realize he had shot anyone.
9. There was evidence that on the Sunday prior to the shooting, 28 September 1986, Knight had had an argument with one Tony Scarpaci and said he was “going to get all you bastards”. Depasquale said that on Monday, 29 September, he had seen Knight walking on the street as he drove past. Knight had pointed his fingers at Depasquale as if he were shooting him. Salvo said that 3 years earlier he had had a fight at the Italian Social Club with Knight. On that occasion Salvo had given Knight a “hiding” and, with others, had kicked in the panels of the car Knight was in. However, Salvo said he was not sure about Knight’s identity as the person he had fought until someone confirmed that that was so. In evidence, Knight denied he had ever seen Salvo before.
Charge to the jury
10. The defence in the cases of both Battaglia and Salvo was accidental discharge of the gun or provocation. In the case of Battaglia, the jury was directed that the discharge of the gun must be conscious and voluntary and that the accused must have intended to inflict grievous bodily harm on or to kill the deceased. In relation to the charge of attempted murder of Salvo, the jury was directed that the firing of the gun must have been conscious, voluntary and deliberate and that the accused must have intended to kill Salvo at the time the act was done. The jury was directed that an intention to cause grievous bodily harm was not sufficient. This direction accords with the view expressed by Gibbs C.J. in Alister v. The Queen ((10) (1984) 154 CLR 404, at p 421. Whether a less favourable direction might have been given does not arise for consideration: cf ibid, at p 467). There was no admission of the requisite intent in the record of the interview which the police subsequently conducted with the appellant. In that record of interview the appellant said that he did not realize that the firearm had discharged into Battaglia and that he did not realize that Salvo had been struck with a bullet. In fact, he said that he did not realize he had shot anyone at all. To return a verdict of guilty of the charge of attempting to murder Salvo, the jury had to find beyond reasonable doubt that Knight had an intention to kill Salvo when the second bullet was fired. In this case such an intention had to be inferred from evidence which the jury accepted. The jury was directed that if more than one inference could reasonably be drawn from the evidence, it was not to draw an inference in a manner adverse to the accused. The jury, though acquitting Knight of the murder of Battaglia and convicting him of manslaughter, convicted him of attempted murder of Salvo.
Appeal to the Court of Criminal Appeal and the High Court
11. The ground of appeal argued here is that the verdict of attempted murder of Salvo was unsafe and unsatisfactory, and that it should be set aside and a verdict of recklessly causing serious injury pursuant to s.17 of the Crimes Act 1958 (Vict.) substituted. The appellant argued that there was insufficient evidence to support an inference of an intention to kill and that the jury could not have excluded competing hypotheses consistent with innocence. This ground of appeal was rejected by a majority of the Court of Criminal Appeal (Young C.J. and Nathan J., Crockett J. dissenting on this ground). Special leave to appeal from the judgment of the Court of Criminal Appeal was granted because the approach taken by Young C.J. and Nathan J. differed and it was not clear that the appropriate test had been applied in deciding whether the jury could draw and act upon the inference that the appellant had an intention to kill at the time when he discharged the rifle when the bullet struck Salvo.
12. The relevant test for the drawing of inferences in a criminal trial is stated by Menzies J. in Plomp v. The Queen ((11) (1963) 110 CLR 234, at p 252):
“The customary direction where circumstantial evidence is relied upon to prove guilt, that to enable a jury to bring in a verdict of guilty it is necessary not only that it should be a rational inference but the only rational inference that the circumstances would enable them to draw, was given.”
In Barca v. The Queen ((12) (1975) 133 CLR 82, at p 104) Gibbs, Stephen and Mason JJ. said:
“When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are ‘such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused’: Peacock v. The King ((13) (1911) 13 CLR 619, at p 634). To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be ‘the only rational inference that the circumstances would enable them to draw’: Plomp v. The Queen ((14) (1963) 110 CLR, at p 252); see also Thomas v. The Queen ((15) (1960) 102 CLR 584, at pp 605-606). However, ‘an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence.’ (Peacock v. The King ((16) (1911) 13 CLR, at p 661)). These principles are well settled in Australia.”
13. This case is not concerned with the problem of proof of the facts from which an inference is to be drawn ((17) As in Chamberlain v. The Queen (No.2) (1984) 153 CLR 521 and Shepherd v. The Queen (1990) 170 CLR 573); it is concerned simply with the question whether a reasonable jury, on the facts as outlined, could have returned a verdict of guilty or, to put it another way, whether a reasonable jury could have been satisfied beyond a reasonable doubt that the inference of intent to kill was the only reasonable inference open on that evidence. Although that question must be decided by this Court, it is not the satisfaction of appellate Justices that is material but the Court’s assessment of the sufficiency of the evidence to satisfy a reasonable jury. In Whitehorn v. The Queen ((18) (1983) 152 CLR 657, at p 660), Gibbs C.J. and Brennan J. agreed with Dawson J. in rejecting the proposition that a doubt entertained by an appellate court is practically equivalent to a doubt which a reasonable jury ought to have entertained. His Honour said ((19) ibid, at pp 687-688):
“In many cases it may be unnecessary to make such a distinction because a doubt experienced by an appellate court will be a doubt which a reasonable jury ought also to have experienced. But the evidence before the appellate court will seldom, if ever, be in the same form as the evidence before the jury. In particular, a court of appeal does not usually have the opportunity to assess the worth of a witness’s evidence by seeing and hearing that evidence given. Moreover, the jury performs its function within the atmosphere of the particular trial which it may not be possible to reproduce upon appeal. These considerations point to important differences between the functions of a jury and those of a court of appeal. A jury is able, and is required, to evaluate the evidence in a manner in which a court of appeal cannot. … Far-reaching as the ground of appeal relied upon is, it ‘is not intended to substitute for trial by twelve jurymen who have seen and heard the witnesses trial by three Judges who have not’: Reg. v. Cable ((20) (1947) 47 SR (N.S.W.) 183, at p 185). It is far from inconceivable that a court of appeal may, upon the material before it and without regard to the verdict of the jury, entertain the possibility of a doubt itself but may properly conclude that the jury might reasonably have reached a verdict of guilty upon the evidence given at the trial. Where a result may have turned wholly or largely upon questions of credibility or upon competing inferences such may well be the case. It is, I think, for this reason that the observation has been made that the power to set aside verdicts which are against the weight of the evidence is to be exercised with caution and discrimination. See Raspor v. The Queen ((21) (1958) 99 CLR 346, at p 352). Such an observation would be largely meaningless if the question were merely whether the appellate court itself experienced a doubt.”
14. Following that exposition of the appellate function, in Carr v. The Queen ((22) (1988) 165 CLR 314, at p 331) Brennan J. said:
“An appellate court must itself consider the evidence in order to determine whether it was open to the jury to convict, but the appellate court does not substitute its assessment of the significance and weight of the evidence for the assessment which the jury, properly appreciating its function, was entitled to make.”
The function of an appellate court where a guilty verdict is challenged on the ground that the evidence is such as to make the verdict unsafe and unsatisfactory is to decide
“whether it was open to the jury upon the whole of the evidence to be satisfied beyond reasonable doubt that the accused was guilty: Whitehorn v. The Queen ((23) (1983) 152 CLR, at pp 660, 686); Chamberlain v. The Queen (No. 2) ((24) (1984) 153 CLR, at pp 534, 607); Morris v. The Queen ((25) (1987) 163 CLR 454, at pp 461-462, 472, 478-479); Carr v. The Queen ((26) (1988) 165 CLR, at pp 330-334). If upon the whole of the evidence a jury, acting reasonably, was bound to have a reasonable doubt, then a verdict of guilty will be unsafe and unsatisfactory”. ((27) Chidiac v. The Queen (1991) 171 CLR 432, per Dawson J. at p 451)
The deference which is due to a jury’s verdict, both by reason of the jury’s presence at the trial and by reason of its function as the constitutional arbiter of the facts, precludes an appellate court from simply substituting its view of the evidence for the view formed by the jury under proper direction. It is only when an appellate court, giving the verdict appropriate deference, concludes that it was not open to the jury to convict that it is right to set aside a verdict of guilty.
15. Approaching this case in that way, the appeal must fail. Reading the printed transcript of the evidence of the struggle between Knight and Salvo, the view that the discharge of the gun which caused Salvo’s wound was accidental – not merely unaccompanied by an intent to kill – appears to be clearly open but that appearance may well have been dispelled in the course of the trial. In a case of this kind, much depends on circumstances apparent to the jury but unknown by the appellate court: for example, the respective physiques of Knight and Salvo and the veracity and pugnacity which they respectively exhibited in giving evidence. The jury had the advantage of hearing the evidence as it was given and of assessing the demeanour of the witnesses and observing the demonstrations by witnesses of the manner in which Knight handled the gun. The jury, having heard Knight give his evidence, may well have formed the view that he was bent on teaching the patrons of the Italian Social Club a violent lesson and that, expecting trouble at the hall on the Tuesday evening, he brought the gun with him to be used. The jury might well have formed the view that, having shot Battaglia (albeit without an intention to kill him or to do him serious harm) and having thereupon routed the intruders, his aggressive entry into the hall, his stalking of Salvo and his continuing attempt to fire the gun at Salvo’s body strongly indicated an intention to kill Salvo. They may have rejected his claim not to have recognized Salvo as the man who had given him a hiding. And the jury might properly have found that Knight, having left Salvo on the floor after shooting him, displayed further malevolence when he fired shots after the retreating intruders. The jury might have entertained a reasonable doubt about his intention to kill when he shot Battaglia and again when a bullet was discharged during his struggle with Salvo but those two shots demonstrated at least a likelihood that the gun would discharge in a struggle. In those circumstances the jury may have entertained no doubt about his intention when he persisted in struggling to point the gun at Salvo’s body. Perhaps the shaving off of his moustache, the disposal of the gun and the falsehoods told to the police might have weighed against him, though these factors are of comparatively little significance when it is remembered that, on any view, Knight had shot two people at the hall.
16. On our assessment of the evidence, it was open to a reasonable jury to convict Knight of the attempted murder of Salvo. We would therefore dismiss the appeal.
Set aside the order of the Court of Criminal Appeal of Victoria. In lieu thereof:
(i) allow the application to that Court for leave to appeal
against conviction on the count of attempted murder;
(ii) allow that appeal; and (iii) substitute for the verdict of guilty of attempted murder found by the jury a verdict of guilty of recklessly causing serious injury.
Remit the matter to the Court of Criminal Appeal in order that the appellant might be re-sentenced.