Knight v The Queen [1992] HCA 56

High Court of Australia Mason C.J. Brennan, Dawson, Toohey and Gaudron JJ. Knight v The Queen [1992] HCA 56

ORDER Appeal allowed. 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.

Cur. adv vult.

The following written judgments were delivered:—

Nov 5 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.

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 to have appear been associates of Depasquale.