R v Alcock

[2010] QCA 9

SUPREME COURT OF QUEENSLAND

CITATION:

R v Alcock [2010] QCA 9

PARTIES:

R
v
ALCOCK, Donald Robert
(appellant)

FILE NO/S:

CA No 75 of 2009
SC No 581 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

08 February 2010

DELIVERED AT:

Brisbane

HEARING DATE:

08 February 2010

JUDGES:

Chief Justice, Muir JA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal against conviction dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL –VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where appellant pleaded not guilty to a charge of murder – where appellant was convicted by jury – where appellant admitted to causing the death of the deceased – where appellant denied intending to kill the deceased – where primary judge’s summing up was appropriate – where appellant did not give or call evidence – whether verdict unreasonable

Criminal Code Act 1899 (Qld), s 668E(1)

Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50, applied

COUNSEL:

P Nolan for the appellant (pro bono)
M J Copley SC for the respondent

SOLICITORS:

No appearance for the appellant
Director of Public Prosecutions (Queensland) for the respondent

THE CHIEF JUSTICE:  The appellant appears against his conviction of murder on the ground that the conviction is unsafe and unsatisfactory and "not according to law".  The notice of appeal does not specify why the conviction is said to be "not according to law". 

Mr P E Nolan of counsel commendably appeared for the appellant on a pro bono basis.  Mr Nolan has not been able to identify any arguable ground of appeal and has helpfully provided a comprehensive written outline in which he has summarised the critical evidence and the course of the trial.  Mr Copley of senior counsel appeared for the respondent. 

The unsafe and unsatisfactory ground equates to a contention that the verdict is "unreasonable" in terms of section 668E(1) of the Criminal Code. That being the ground this Court must make the "careful independent assessment" required by Morris v The Queen (1987) 163 CLR 454 at 463, in order to determine whether or not a reasonable jury should have entertained a reasonable doubt. We have been substantially assisted in that by the helpful outlines provided by counsel.

The appellant pleaded not guilty to the charge that between the 29th of May 2007 and the 5th of June 2007 at Woodford, he murdered Anthony Ross Knight.  The appellant was convicted after a five day trial.  Defence counsel, had, on instructions, informed the jury at the commencement of the trial that the appellant admitted that on or about the 30th of May 2007 at Woodford he caused the death of Mr Knight, leaving, as what counsel termed "the primary consideration", whether the prosecution could establish the requisite intent to kill or do grievous bodily harm.  In his closing address to the jury defence counsel acknowledged that the jury must find the accused guilty of manslaughter, I would add, at least manslaughter. 

Mr Nolan submitted that the learned trial Judge's summing-up was satisfactory in all respects.  Consistently with that no request for redirections was made by counsel after her Honour completed that summing-up.  The summing-up was in all respects appropriate.
The evidence disclosed that one Kirby located the body of the deceased in the deceased's house on the 4th of June 2007.  An autopsy carried out two days later disclosed that the deceased had been shot once in the right side of the back.  He died as a result of that gun shot wound.  The deceased was a bee-keeper.  When Mr Kirby was at the deceased's property on the 4th of June, Mr Kirby noticed that about 20 drums of honey which had been present on the 13th of May when he was last there were no longer there. 

From the 5th of April the appellant began selling honey to one Kirk.  In the course of that, the appellant mentioned to Mr Kirk that he the appellant was short of money.  On the 31st of May 2007 while unloading at Mr Kirk's premises the appellant was injured and the police were called to make a note of the accident.  The relevant police officer, as it turned out, had an interest in bee-keeping.  That police officer subsequently received information about some abandoned honey drums located outside Beaudesert which that police officer linked to the drums which had been involved in the accident at Mr Kirk's property.  Inferentially, the police discerned a link between the honey the appellant had been selling and the honey missing from the deceased's property.

While the appellant's surname “Alcock” was on some of the abandoned drums other paint markings provided a link back to the deceased.  Detectives interviewed the appellant and told the appellant that they were investigating the death of the deceased.  The appellant quickly confessed to having stolen the deceased's honey and having killed the deceased and the appellant confirmed that later in a formal record of interview. 

In that interview the appellant said that he needed honey to generate money to satisfy his debts.  He felt under pressure.  As he put it, "I needed to get some money so I can get myself out of big, big shit otherwise they were going to take everything I own". 

The appellant travelled to the deceased's property in his truck.  He had a rifle in the truck.  After he had arrived he loaded the rifle and then went to find the deceased.  He found the deceased lying asleep in his bed within the dwelling.  After a time the appellant shot the deceased, aiming at the "dead centre of his back".  The appellant was an experienced marksman.  The appellant told the police that he could not steal the honey without "hurting" the deceased.  The appellant denied intending to kill the deceased saying that he wanted only to "hurt" him.  "I was only out to maim him", he said.  The appellant said that he did not like the deceased.  The appellant stole an amount of honey which he believed would be worth approximately $40,000. 

The appellant did not give or call evidence.  There is no suggestion that any course was adopted at the trial except on clear instructions.  There was ample evidence on which the jury could have been satisfied of the truth of the confessional material and that in killing the deceased the appellant bore the requisite intent.  It was indeed a strong prosecution case. 

As summarised by Mr Copley: "The appellant did not like the deceased.  The appellant felt that he was in a desperate financial state.  The deceased had a large quantity of valuable honey which the appellant intended to take when he arrived at the property.  The deceased's presence there created a possible difficulty for the appellant.  The appellant shot a sleeping man in the back from close quarters with a rifle.  He shot him after some deliberation.  The appellant said that he intended to maim the deceased in order to take the honey.  The shot fired caused death.  From all of these circumstances it was very much open to the jury to be satisfied beyond reasonable doubt that the appellant at least intended to do grievous bodily harm to the deceased." 

The requisite careful independent assessment of the evidence and the course of the proceedings confirms that a reasonable jury need not have entertained a reasonable doubt about the appellant's guilt of murder.  The appeal against conviction should therefore be dismissed.

MUIR JA:  I agree.

DOUGLAS J:  I agree.

THE CHIEF JUSTICE:  The appeal is dismissed.