R v Blake - [1994] QCA 77

IN THE COURT OF APPEAL [1994] QCA 077

SUPREME COURT OF QUEENSLAND	C.A. No. 386 of 1993
Brisbane
BeforeFitzgerald P. Davies J.A. McPherson J.A.
[R. v. Blake]

T H E Q U E E N
v.

PHILIP JAMES BLAKE (Appellant)

_______________________________________________________________

FITZGERALD P.
DAVIES J.A.
MCPHERSON J.A.

_______________________________________________________________

J	udgment delivered 31/03/1994

REASONS FOR JUDGMENT - THE COURT

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APPEAL AGAINST CONVICTION DISMISSED.
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED.
APPEAL AGAINST SENTENCE ALLOWED. ORDER THAT THE DATES BETWEEN
WHICH THE APPELLANT WAS IN CUSTODY IN RELATION TO PROCEEDINGS
FOR THE OFFENCE AND NO OTHER REASON WAS FROM 17 NOVEMBER 1992 TO
THE DATE OF THE SENTENCE ON 7 OCTOBER 1993. ORDER THAT THE TIME
THE APPELLANT WAS IN CUSTODY IN RELATION TO PROCEEDINGS FOR THE
OFFENCE AND FOR NO OTHER REASON WAS 325 DAYS UP TO THE DATE OF
BEING SENTENCED. THAT THE TIME OF 325 DAYS IS TO BE
IMPRISONMENT ALREADY SERVED UNDER THE SENTENCE. ORDER THAT THE
TIME OF 325 DAYS SO DECLARED WAS NOT TAKEN INTO ACCOUNT BY THE
COURT IN IMPOSING SENTENCE.
_______________________________________________________________

CATCHWORDS:CRIMINAL LAW - MURDER - PROVOCATION - Mere words and confession of adultery by the deceased to the appellant - absence of circumstances of extreme and exceptional character - whether trial judge erred in not leaving the issue of provocation to the jury

CRIMINAL LAW - SENTENCE - Applicant in custody for more than ten months prior to imposition of sentence - whether term should have been ordered to have effect from date of arrest or that time should have been taken to be imprisonment already served under the sentence - application of ss. 158 and 161 of the Penalties & Sentences Act to mandatory sentence of life imprisonment

Counsel:Mr Blake appeared on his own behalf

Mr B. Butler for the Respondent

Solicitors:Director of Prosecutions for the Respondent
Date(s) of Hearing:7 February 1994

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 31/03/1994

The appellant was convicted after a trial on 7 October 1993 of the murder of his wife, Tamee Maree Blake, at Loganlea on 17 November 1992. On the same day he was sentenced to life imprisonment. He appeals against that conviction and also seeks leave to appeal against that sentence.

The only direct evidence of the events leading up to and including the death of the deceased was that of the appellant, who spoke to a friend and to the police shortly after his wife's death and who gave evidence in his own defence. His evidence was to the following effect.

On the night in question he and his wife had been watching television at about 9 p.m. Soon after that the deceased made advances to the appellant and they made love. At about 9.30 p.m. they dressed. The deceased went outside to the car and spoke on the CB radio. The appellant watched some television. At about 10 p.m. he went outside to get a cigarette from the deceased. It was the last cigarette which the deceased…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Blake

Details

AGLC: R v Blake [1994] QCA 77
Case: [1994] QCA 77
Decision Date: 31/03/1994

CaseChat Overview and Summary

The case of R v Blake was heard by the Supreme Court of Queensland's Court of Appeal. The appellant, Philip James Blake, was convicted of the murder of his wife, Tamee Maree Blake, and sentenced to life imprisonment. He appealed against both his conviction and his sentence. The primary legal issues were whether the trial judge erred in withdrawing the defence of provocation from the jury and whether the sentence should consider the time Blake spent in custody prior to sentencing.

Regarding the defence of provocation, the Court of Appeal held that the trial judge correctly determined that the evidence did not support a provocation defence. The deceased's words, revealing an affair and the intention to end the marriage, did not constitute circumstances of extreme and exceptional character necessary for provocation. The court found that mere words without any accompanying provocative conduct were insufficient to deprive an ordinary person of self-control to the extent of intentionally killing.

As for the sentence, the Court of Appeal concluded that the appellant's time in custody prior to sentencing should be considered as imprisonment already served under the sentence, rather than having the sentence take effect from the date of arrest. This interpretation would ensure the appellant's pre-sentence custody is factored into his eligibility for parole. The Court made an order that the 325 days Blake spent in custody should be counted as time already served under his sentence, but this period was not taken into account in imposing the sentence.

The Court of Appeal dismissed the appeal against conviction but granted leave to appeal against the sentence. It allowed the appeal against the sentence and ordered that the time Blake spent in custody should be counted as imprisonment already served under his life sentence.

Orders