R v Allison

[1996] QCA 330

IN THE COURT OF APPEAL	[1996] QCA 330
SUPREME COURT OF QUEENSLAND	C.A. No. 187 of 1996
Brisbane
Before	Fitzgerald P. Davies J.A. Thomas J.
[R. v. Allison]

T H E Q U E E N

v.

LUKE MICHAEL ALLISON Appellant

FITZGERALD P.

DAVIES J.A. THOMAS J.

Judgment delivered 06/09/1996

REASONS FOR JUDGMENT- THE COURT

Appeal against conviction dismissed.

CATCHWORDS:	CONVICTION - murder - appellant viciously attacked victim (his father) - whether trial judge gave insufficient warning of the danger of convicting on the uncorroborated evidence of an accomplice where the accomplice had received an indemnity from prosecution - whether the trial judge misdirected the jury as to what items of evidence were capable of corroborating the accomplice’s evidence.
Counsel:	S.J. Hamlyn-Harris for the Appellant D. Meredith for the Crown
Solicitors:	P. O’Brien for the Appellant Queensland Director of Public Prosecutions for the Crown
Date(s) of Hearing:	29 August 1996
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 06/09/1996

The appellant has appealed against his conviction on 29 February 1996 of murdering his father on 9 April 1995. While his father was sleeping, the appellant struck him to the head with an axe about three times. A notice of appeal was filed out of time and an extension granted; a few days before the hearing, notice was given of an application to amend the grounds of appeal, which are now stated in the following terms:

“The learned trial judge erred in his directions to the jury in respect of the
evidence of Riley in two respects:

(a)         His Honour gave the jury an insufficient warning of the danger of convicting on the uncorroborated evidence of an accomplice where the accomplice had received an indemnity from prosecution; and

(b)        His Honour misdirected the jury as to what items of evidence were capable of corroborating Riley’s evidence.”

The appellant was born on 9 March 1978, and was aged 17 years when he killed his father and at the time of his trial. Shane Robert Riley was a friend of the appellant who lived with him and his father at Booyal for about eight weeks prior to the killing. Riley’s evidence was the lynchpin of the prosecution case. However, Riley was also an accessory after the fact to the appellant’s unlawful killing of his father.

Riley gave evidence of the relationship between the appellant and his father, including reference to arguments and statements by the appellant to Riley that he intended to kill his father. He also gave evidence that he and the appellant consumed marijuana at their residence on a fairly regular basis and that occasionally the appellant’s father would join in that activity. On 8 April 1995, the appellant, his father and Riley went into Bundaberg together to shop and, after they had returned and had their evening meal, they listened to the radio and smoked marijuana and the appellant’s father also drank some wine. Riley said that there were no arguments and that all were in a good mood.

After seven or eight cones of marijuana, Riley fell asleep on a couch. The last thing he remembered before falling asleep was observing the appellant’s father go to the bathroom. The next thing which he remembered was being woken up by the appellant.

Riley then gave an account of the conversation which took place, and of going with the appellant to the room of his father, who had blood all over his head. He described the appellant placing a pillow over his father’s head and telling him to “shut up”. Shortly afterwards, Riley saw the appellant with an axe in his hand with a little bit of rag around the handle, and said that the appellant asked him what he wanted him to do with it; Riley said that he told the appellant that he didn’t care and the appellant threw the axe from the back steps towards the clothes line. The next morning he saw “a little bit of blood and hair hanging off” the axe.

According to Riley’s account, after the appellant had thrown the axe towards the clothes line they left and went and slept near a dam; the appellant’s plan, according to Riley, was that they would say they had been absent all night camping. On more than one occasion, Riley described the appellant as appearing to be pleased with himself both on the night of the attack and on the following morning as they walked home.

After they returned to the house, the appellant telephoned the police and reported his father’s murder; he also contacted the ambulance. When police officers arrived, the appellant stated that he had been camping and returned to find his father dead.

After initially giving accounts which he later said were false, Riley sought legal advice and provided a statement implicating the appellant to police in August 1995. Prior to that time, the appellant had been charged with murder and Riley had been charged with being an accessory. After giving police the statement in August 1995, he was granted an indemnity against prosecution by the Attorney-General subject to him giving evidence “truthfully and frankly without embellishment and withholding nothing of relevance”; the indemnity was dated 22 February 1996.

Riley was cross-examined at the appellant’s trial but only in an attempt to raise an issue concerning whether the appellant had the necessary intent to cause death or grievous bodily harm; an attempt was made to create a reasonable doubt in the minds of the jury concerning the appellant’s intent, thereby reducing his offence to manslaughter. The cross-examination of Riley effectively accepted that the appellant had killed his father with an axe, but sought to have Riley acknowledge that parts of his evidence were false or exaggerated, that Riley was more involved than he had acknowledged and that, as Riley agreed, he and the appellant could have had 20 to 30 cones of marijuana between them on the night of the killing.

However, the only evidence concerning the effects of marijuana given at the trial was evidence from Dr. Alan Freed, a psychiatrist, who said that cannabis does not increase or decrease the ability to form an intention. Neither Riley nor Dr Freed, who had viewed the videotapes of the police interview with the appellant on the morning after he killed his father, gave any evidence which might have assisted the appellant in any way.

Reference has already been made to the appellant’s amended grounds of appeal. We are prepared to assume in favour of the appellant, without deciding, that the direction given by the trial judge to the jury in relation to the caution with which Riley’s evidence should have been treated should have warned the jury of a probability, as the appellant contended, that the circumstances “made it extremely like that Riley felt under an obligation to repeat in his sworn evidence what he had said in [his August 1995] statement, whether or not the contents of the statement were true in all respects”. It was submitted that the direction in fact given wrongly implied that the danger of acting on an accomplice’s evidence was reduced if the accomplice had an indemnity; again, we are prepared to assume in favour of the appellant, without deciding, that such a complaint was justified. The appellant’s written outline of submissions drew this Court’s attention to a number of cases which have considered such problems in the last decade, but we consider it unnecessary to discuss what has been said on this occasion.

The appellant’s other objection to the summing-up was that the trial judge listed five items of evidence as capable of amounting to corroboration of Riley’s evidence which, it was submitted, were “merely consistent with Riley’s evidence. None of them implicated the appellant in the commission of the offence independently of Riley’s evidence”. Again, our attention was helpfully drawn to a number of authorities, and again we are prepared to assume in favour of the appellant, without deciding, that the criticism made of the summing-up is correct.

It remains to decide what the consequence would be if the misdirections asserted had occurred. The appellant’s submission was that the parts of Riley’s evidence which were directly challenged in cross-examination might have been regarded by the jury as of critical importance on the issue of intent, so that the directions given in relation to the attitude to be adopted by the jury to Riley’s evidence “were of critical importance, and the misdirections have led to a miscarriage of justice”. We do not agree. We are unable to comprehend how it could be concluded, once the jury was aware that the appellant killed his sleeping father by striking him on the head a number of times with an axe, that it might have entertained a doubt whether he intended to kill his father or cause him grievous bodily harm; there was nothing whatever in the evidence which might rationally have caused the jury to doubt whether the appellant might have intended some result other than the inevitable consequence of his acts or might have been unable to form an intention.

In summary, in our opinion, the appellant did not lose any chance of acquittal, his trial was not unfair, there has been no substantial miscarriage of justice, and the appeal should be dismissed.