High Court Dismisses Appeal Against Attempted Murder Charge

By Paul Gregoire and Ugur Nedim

On 28 April 2012, ex-Bandido biker club member Jacques Teamo walked into a Sony store in the Gold Coast’s Robina Town Centre mall accompanied by his two sons. Mark James Graham from rival club, the Mongols, was walking by and noticed Mr Teamo in the store.

Mr Graham felt for something in his pouch bag on his belt. He then entered the store and paced back and forth staring at Teamo, who responded by saying, “What are you looking at?” Graham then left. Mr Teamo followed him out, telling his oldest son that he was going to “stab that guy.”

Mr Teamo called out, “Have you got a problem?” The two men began puffing up their chests and shouting at each other. Graham reached into his pouch and a ten dollar bill fell out. Teamo produced a flick knife. He extended the blade and started backing away.

Graham pulled a handgun out of his pouch. He fired a shot, which struck Teamo in the arm. Graham fired another, which hit Ms Kathy Devitt, an onlooker in the crowded shopping mall. Bullet fragments lodged in Ms Devitt’s right hip.

Two days later, Graham was arrested by police in Melbourne.

Trial by jury

In November 2014, a jury found Graham guilty of several charges in Queensland Supreme Court.

The defendant was convicted of of attempted murder, contrary to section 306(1)(a) of the Queensland Criminal Code 1899. The maximum penalty for the offence is life imprisonment. Justice Alan Wilson ultimately sentenced Mr Graham to 12 years and 3 months in prison for the crime.

As to wounding the bystander, Graham was found guilty on one count of unlawful wounding with intent to maim, under section 317(1)(b) of the Criminal Code. This offence also carries a maximum penalty of life imprisonment. Graham was sentenced to 7 years gaol for the act.

Mr Graham was further convicted of unlawfully possessing a weapon, contrary to section 50(1) of the Weapons Act 1990, which carries a maximum penalty of between 2 to 7 years imprisonment, depending on the weapon involved.

He pleaded guilty to that third offence, receiving a prison term of 1 year and 6 month prison. The sentences were ordered to be served concurrently, which means they commenced on the same date and ran together.

In handing down the sentence, Justice Wilson remarked, “Neither the presence of family nor of large numbers of innocent bystanders, discouraged you from a confrontation which resulted in Teamo and Ms Kathy Devitt, a person unknown to you, being shot.”

A consensual confrontation

Graham appealed his convictions to the Queensland Court of Criminal Appeal, which dismissed the appeals. Last year, he appealed to the highest court in the land, the High Court of Australia.

His lawyers argued that Justice Wilson’s directions to the jury during the trial were inadequate when it came to Graham’s claim of self-defence.

During the trial, the prosecution argued that the altercation between the two rival bikers was a “consensual confrontation” up until the point Graham pulled his gun. Teamo’s act of pulling out his knife was part of this consensus, the prosecution maintained, and did not constitute an assault.

The prosecution’s argument

Under Queensland law, there are three broad categories of self-defence: self-defence against an unprovoked assault, self-defence against an unprovoked assault where there is a reasonable apprehension of death or grievous bodily harm, and self-defence against a provoked assault.

As Mr Graham had provoked the incident, only self-defence against a provoked assault could be invoked. Section 272 of the Criminal Code provides that a person is not criminally responsible for an assault if he or she uses force necessary to preserve themselves against an assault they provoked.

For this category of self-defence to be made out, an individual must establish that they were assaulted. Under section 245 of the Criminal Code, the definition of an assault includes gestures and threats to apply force to another without their consent.

However, there are cases where an individual applies force to another with their consent that do not constitute an assault, such as in the case of surgery and sporting matches. So, according to the prosecution, Graham could not claim self-defence, as he had consented to the threat to apply force.

The jury was not misdirected

However, the High Court justices stated the trial judge had not misdirected the jury in regard to the prosecution’s argument in anyway.

The High Court pointed out that Justice Wilson had provided the jury with a list of ten questions, which set out the matters that they should consider, and the consequences of their findings for the verdict.

Three of the questions were relevant to self-defence. However, none of them pertained to whether any assault by Teamo was consensual.

The trial judge asked the jury to consider whether Graham had been unlawfully assaulted by Teamo, if what Graham had done before the shooting had provoked Teamo, and whether the force Graham used was not necessary to defend himself against the assault.

His Honour had mention the prosecution’s argument, describing the term “consensual confrontation” as “not an unlawful assault so a self-defence does not apply.”

But the High Court justices noted that the trial judge described this as a matter of “interpretation, argument and construction” put forth by the prosecution.

The ruling of the High Court

The High Court held there was no evidence that Mr Graham had consented to be “threatened with a flick knife or stabbed.” Neither was there any evidence Graham was aware that Teamo possessed the knife until immediately before the shooting.

“It may be thought surprising that the prosecutor troubled to raise consent to an assault by Teamo as an issue negativing self-defence,” a majority of the High Court remarked.

“It is not clear, however, how the alleged production of the knife by Teamo could have been treated as consensual by any reasonable jury,” the justices further found.

The High Court outlined that the trial judge had in no way misdirected the jury. His Honour directed them to consider the evidence at hand, and not the arguments of the prosecution.

Indeed, the joint justices reasoned that the prosecution’s suggestion that the confrontation was consensual was not a real issue during the trial. And Graham’s criminal defence lawyer must have thought the same, as “he did not mention it in his own address, nor ask the trial judge for a direction on that question.”

On 20 July last year, the High Court dismissed Mr Graham’s appeal.

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