THE QUEEN v JOSIAH PAUL CHARTERIS [2003] NZCA 11 (25 February 2003)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA347/02

THE QUEEN

V

JOSIAH PAUL CHARTERIS

Hearing:

24 February 2003

Coram:

Gault P

Robertson J

Doogue J

Appearances:

T Sutcliffe for the Appellant

A R Burns for the Crown

Judgment:

25 February 2003

JUDGMENT OF THE COURT DELIVERED BY ROBERTSON J

[1]	This is an appeal against conviction in respect of a count of attempted murder.Mr Charteris faced an amended indictment containing twelve counts relating to alleged offending in Hamilton 9-10 March 2002. Upon arraignment, he pleaded guilty to seven counts and faced trial on the other five, three of which were in the alternative.They were counts of attempted murder, wounding with intent to cause grievous bodily harm and wounding with reckless disregard for the safety of others.
[2]	The jury found Mr Charteris guilty of attempting to murder Daniel Charles Peter Shorten and of unrelated counts of confining and the aggravated assault of Shane Carl Derry.
[3]	On the attempted murder charge, the appellant was sentenced to nine years imprisonment with a minimum non-parole period of four years.On the remaining offences he was sentenced to concurrent sentences of between four years and one year’s imprisonment. At the same time a co-offender who had pleaded guilty to all charges laid against him was sentenced to four years imprisonment on the most serious charge (having received a reduction from a starting point of five years) and concurrent sentences of between three years and ten months imprisonment on other counts.
[4]	The appeal is against conviction only on the attempted murder charge on the basis that there was not sufficient evidence to justify the jury’s verdict.
[5]	There is no challenge to the Judge’s direction to the jury when he said:

“The real question for you, the jury in relation to the attempted murder charge, is what purpose did the accused have in mind when he carried out that physical action.You must be sure that when he shot Mr Shorten, the accused had an intention to kill as the Crown alleges.”

And on the same issue when speaking of inferences, he noted:

“For example, the Crown asks you to infer from the circumstances in which Mr Shorten was shot and from the evidence relating to that event that the accused had a particular intention to kill Mr Shorten.The defence argues that such an inference is not open to you on the facts of this case.”

[6]	At its heart, the appellant’s contention is that the inference of the essential ingredient of an intention to kill as opposed to the essential ingredients of the alternatives was not properly available on the totality of the evidence.
[7]	All the offending by Mr Charteris and his co-accused occurred when the two men said they were seriously affected by drink and drugs.It began with shooting at trees in Steele Park in Hamilton, and then the two went on a rampage in the city area.The appellant had a .22 rifle and shots were fired at a variety of objects including particularly cars and buildings.In the course of this, one shot hit Mr Shorten. The bullet penetrated his right cheek knocking out three teeth and causing extensive damage to his jawbone.
[8]	Later, the two men attempted to hijack a car, again using the gun, but the driver sped off. They also went to a motel where they broke into a room and stole property.
[9]	When spoken to by the Police a couple of days later, Mr Charteris, following an initial denial, in the course of a video interview, admitted that he was responsible for firing the gun. He said he did not own it, but it had been given to him some days before the incident.He said he had no formal training in the use of firearms although had done some rabbit shooting.He told the Police he was not a good shot because he was short-sighted.
[10]	A scene diagram showed that it was about 84 metres from where the shot was fired to where Mr Shorten was hit.Throughout the interview, the appellant denied that he had any intention to harm any person, although he admitted seeing Mr Shorten at the time that he decided to target his car with the gun.
[11]	Mr Sutcliffe (who was not counsel at trial) acknowledged that there was rather incriminating evidence as to his client’s intentions in an interchange which occurred during the videoed Police interview:

IS And when you fired in to the – towards the people

HS Yeah

IS Did you consider the possibility that it would hit somebody?

HS Ah yes I did but I wasn’t aiming for, for any vital organs I was only like may be a limb or bottom of a – of someone’s face or maybe a car or something

IS Say that again to me

HS Bottom of a face or a car

IS You aimed for the bottom of somebody’s face [the video transcript records this as “You reckon to blow off somebody’s face.”]

HS No, no I wasn’t, but I considered all those possibilities

IS Right

[12]	Counsel contended that even this was equivocal on the fundamental issue of differentiation.Mr Sutcliffe particularly emphasised the decision in R v McDonnell (1993) 10 CRNZ 454 where this Court noted at 460:

Generally in cases of murder the inference of the necessary intention can be drawn readily enough from a deliberate shooting.In those cases, however, the murderous intention is established whether death or grievous bodily harm is intended.That is not the position with attempted murder.As the Judge rightly directed the jury in this case, it is necessary to prove an intention to kill.

[13]	Applying that to the facts of this case, Mr Sutcliffe submitted that the indiscriminate firing at this distance, where there was no prior contact or involvement and therefore nothing from which motive or animus could be deduced, was as consistent with wounding with reckless disregard for the safety of others, or wounding with intent to cause grievous bodily harm, as it was with a deliberate intention to kill.
[14]	Mr Burns, for the Crown, submitted that there were a number of factors which supported the drawing of the inference of an intention to kill by the jury.He noted:
(a)	Mr Shorten was shot in the mouth
(b)	He was shot with a Browning semi-automatic rifle using .22 calibre bullets of the type the rifle was designed to fire
(c)	The rifle was subsequently found to be functioning normally
(d)	It had a telescopic lens which was capable of magnifying the visibility of any target by the power of 4
(e)	A .22 calibre bullet is listed as having a range of a mile whereas the distance here was only 84 metres
(f)	Mr Charteris knew how to use a rifle with telescopic sight as he had practised with guns in the past and had been taking pot shots at trees in the park and vehicles in the area.
(g)	Mr Shorten was a stationary target
(h)	The shot was not rushed as there was a pause between the first shot which hit the car boot and the second shot which struck Mr Shorten
(i)	Mr Shorten’s car was an unlikely target because of the number of people around it
(j)	Mr Charteris admitted he might have aimed for the bottom of someone’s face
[15]	On the final point of the admission by Mr Charteris, we have some concern.The video interview took place some days after the shooting and clearly following media reporting.It is a strange and almost incoherent account of events.There is a constant theme of denial of intention to do any real harm but some equally odd comments about the incident and about what was occurring.It was open to the jury to place little reliance on the statement and indeed that is the approach we are inclined to take in considering the merits of the appeal.
[16]	The crucial issue with the other factors is how they assist in advancing the fundamental point.What evidential foundation existed which justified an inference of an intention to kill?
[17]	There was a degree of unreality in the case in that there had been at least an indiscriminate shooting in a busy public area but the jury was faced with a denial of acting with reckless disregard for the safety of others.Even allowing for that situation, the central issue on this count (which the Crown had to prove) was intention to kill. Thus the primary consideration is in what way do these matters, now pointed to by the Crown, indicate that there was an intention to kill rather than an intention to do grievous bodily harm or that Mr Charteris was acting with reckless disregard for the safety of others?
[18]	With respect to Mr Burns’ careful argument, it has to be supposition or conjecture as to whether the factors upon which he relies, point one way or the other. We, however, are persuaded that the jury issue can be viewed in more simple terms.
[19]	This was a case in which there was a man who was on an indiscriminate and out of control rampage with a lethal weapon.The circumstances were quite different from those in McDonnell where there was a firearm which was not normally lethal.
[20]	On the totality of the evidence, and without reliance on the equivocal or confused comments in the appellant’s video interview, there was credible material from which the jury could infer that this man was in the central city area aiming a .22 rifle not just at a car but at a person.Mr Charteris was using a rifle which he knew was operative from his previous activities with it.He hit a man, who was part of a group of people, in the lower face. The appellant was sufficiently aware of what was happening to get away from the scene, indulge in more criminal behaviour and later enlist assistance in having the firearm disposed of.
[21]	Although we may not necessarily have reached the same conclusion, it has not been demonstrated that this jury (having been properly directed with regard to the essential ingredient of an intention to kill) could not, on all the evidence, have concluded that this was his intention when he fired the relevant shot.We cannot say that it is not open to a jury to infer that there is an intention to kill when an intentional shot from a lethal weapon hits the face of another human being.Such a shot is consistent with an intention to kill.It may be capable of being consistent with some lesser intention but in the absence of a believable explanation as to the true intention it must be open to the jury to reject such a possibility.Fine distinctions about intentions are somewhat artificial in circumstances like those disclosed in this evidence of a man firing a rifle (across a public arena) at the head of another.
[22]	The appeal must accordingly be dismissed.

Solicitors

Till Henderson King, Hamilton, for the Appellant

Crown Solicitor, Auckland