R v Brescia

[1994] QCA 68

THE COURT OF APPEAL [1994] QCA 068

SUPREME COURT OF QUEENSLAND

C.A. No. 353 of 1993

Brisbane

Before Macrossan C.J. McPherson J.A. Davies J.A.

[R. v. Brescia]

BETWEEN

T H E Q U E E N

v.

EDURDO LUIS BRESCIA

(Appellant)

Macrossan C.J. McPherson J.A. Davies J.A.

Judgment delivered 25/03/1994
Reasons for judgment of the Court

NOTICE OF APPEAL AMENDED BY OMITTING THE WORDS "AND AGAINST MY SENTENCE" AND RESTORING THE WORDS "AGAINST MY CONVICTION" STRUCK OUT IN THE NOTICE.

APPEAL AGAINST CONVICTION DISMISSED.

CATCHWORDSCRIMINAL LAW - Murder - Wife shot with speargun - Admissions by accused - Corroboration by neighbours.

Counsel:Appellant in person

P. Bannister for the respondent

Solicitors:Director of Prosecutions for the respondent

Hearing Date:7.2.94

REASONS FOR JUDGMENT - THE COURT

Judgment delivered the Twenty-Fifth day of March 1994

The appellant was found guilty at his trial in the Supreme

Court of the murder of his wife Angelica on 15 July 1992. At

about midday on that day she was struck by a harpoon discharged from a speargun that entered her left upper chest from the

front. Medical evidence was that she died of massive internal

bleeding within about 5 to 20 minutes of sustaining the wound.

The trajectory of the missile was found on post mortem examination by Dr Ashby to be inward, backward and slightly downward, suggesting that when struck the victim was at a lower

level than her assailant. She may have been kneeling or lying

down or, Dr Ashby said, she could have been seated while her

assailant stood. Signs of recent bruising were also discovered, suggesting she had sustained at least two recent blows to the head, as well as bruising to her hands, which may have been

caused by her attempting to ward off blows.

There is no doubt that Angelica was killed as the result of an act done by the appellant. When at about 12.30 p.m. police arrived at her home at 7 Stonyfell Court, Burleigh Heads, the door was opened by the appellant, who before breaking down said

"I've killed my wife". The police were summoned to that address by a call received at about 12.20 p.m. in the radio room at the

Broadbeach police station. Senior Constable Archer, who

received the call and made notes of it, heard the caller, who was distressed and crying, say that his wife was dead, adding "she lay on the floor, I have killed her ... We have had an argument and I have done something".

There was evidence of other admissions confirming that the appellant had caused his wife's death. The result was that at the trial the only substantial question for the jury to decide was whether the appellant had meant to kill her; that is, whether he possessed the requisite intention to cause death or to do grievous bodily harm.

As to that, there was substantial evidence on which the

jury were justified in founding their verdict of guilty of

murder. The appellant and his wife had been living separately for some time. There were proceedings between them in the

Family Court, and a protection order had been made in favour of

Angelica. She had custody of the two children of the marriage,

who were girls of pre-school age. He had rights of weekly access to them, in exercising which he came to her house in order to collect the children. On some of those occasions neighbours heard arguments between them associated with sounds or subsequently signs of violence upon her person.

Among those neighbours was a Mr Torr, who lived in a house across the road from Angelica at 7 Stonyfell Court. He testified that at about 12.15 p.m. on 15 July he heard noises

coming from no. 7 consisting of a scream of "Oh no" followed by a thud. He said he recognised Angelica's voice. The appellant, who appeared in person on the appeal, argued that Torr would not have been able to hear or identify the voice because of the

distance from his house and because Torr had his television on

at the time. Questions were directed to these matters in the course of cross-examination; but they were matters for the determination of the jury. In any event, Torr's testimony on this point was useful only as fixing the time of injury with greater precision.

From the prosecution standpoint Mr Alan Butler and his wife

Mrs Michelle Butler were important witnesses. They lived in the

back half of the house occupied by Angelica at 7 Stonyfell

Court, which was subdivided only by a plasterboard wall. At

about midday on 15 July, Mr Butler was aroused by the noise of angry voices coming from the other side of the partition wall. In the kitchen to which he went he was able to hear a man and a

woman arguing in the front half of the house. He heard a female voice, which he recognised as that of Angelica, sounding distressed and hysterical, crying out "don't kill the kids". He

then heard her scream. After that there was silence for a time,

and then he heard the man's voice speaking on the telephone. He heard him say "I've shot her" and something about a spear gun,

and also the words "If you don't believe me come and look for yourself", followed by the sound of the telephone being slammed

down.

It is a fair inference that what Butler overheard was part of the telephone conversation received by Archer at the police station. Archer could not recall the last remark, but he had not succeeded in recording all that was said. There was evidence that the appellant had also called a friend named Mrs Ryan. She said he was upset and crying; he kept saying that

Angelica was dead, and mentioned something about a speargun.

Mrs Butler was present with her husband in their half of

the house at the relevant time. She said she heard voices

screaming and yelling angrily. She went to the kitchen where she heard Angelica screaming over and over "No, no you've killed the kids", or "No, not the kids, no, not the kids". Suddenly,

the screaming stopped, and she heard a male voice say "Oh no,

I've killed my wife". She then heard dialling sounds, and a man

saying he had killed his wife, and giving the address.

On appeal the appellant argued that the evidence of Mr and

Mrs Butler was unreliable because it diverged in some respects,

and because, as Mrs Butler herself said, she was "tone deaf". He suggested that she would have been unable to hear what was

said because there was a radio playing; this was put to her in cross-examination but denied. The differences between the evidence of Mr Butler and Mrs Butler are however, not irreconcilable; and, if a choice had to be made, the jury would have been justified in preferring his to her version. They heard the testimony given in court, and the trial judge repeated it to them in detail in his summing up, so that they were fully

aware of what each of them had said in evidence. No special direction was called for with respect to the significance, if

any, of the differences in what each of them claimed to have
heard.

On the basis of the medical evidence and what the Butlers said they heard, it was open to the jury to conclude that Angelica was killed in the course of an argument in which she

evidently feared that the appellant might be intending to kill the children, and that she tried to prevent him from doing so.

There was other evidence capable of supporting an inference that

he had gone to the house that day with some such intention in

mind. The speargun was identified by the manager of a sports shop who recalled selling it to the appellant only some six days before 15 July. He had personally instructed the appellant in

its use. Evidence was given by a police scientific expert that

the speargun was loaded by pushing the harpoon into the muzzle,

and that it was discharged by pulling a trigger. The pressure required to discharge it was 7 kgs., which exceeded by a substantial margin the minimum standard of 1.1 kgs. acceptable in the comparable case of firearms. The gun was fitted with a

safety mechanism for preventing accidental discharge, and standard tests later performed on the weapon showed it was not prone to accidental discharge without operating the trigger.

There was no proper basis for concluding that the gun had

discharged accidentally. The circumstances that the appellant

had taken the speargun with him to the house; that it was loaded

and the safety catch was released; the considerable pressure required to discharge it; the angle of entry of the missile into the body; the heated words that preceded its discharge, and the

woman's cries of fear combined to exclude the possibility of

accident as a rational explanation of what had happened.

Before us the appellant complained that he had not been

permitted to give evidence at the trial. When his attention was

drawn to where the record showed that the trial judge had fully explained to him the right he had to testify, he said that in electing not to do so he had been acting on the advice of counsel, to whom he acknowledged he had given a specific written instruction on the point. Having regard to the identity and

extensive experience of counsel who represented him, there is no reason for supposing that the advice he received was not well-founded. His further complaint that his proficiency in English was limited is contradicted by evidence given by Mrs

Ryan at trial, as well as by the contents of the police record

of interview, and by the fact that he was able to conduct the appeal before us in English without noticeable difficulty. His mother tongue is Spanish, but he told us that he was a commercial air pilot by occupation, and he is plainly not an individual of limited intelligence.

There is no basis for concluding that the jury verdict is unsafe, or that the appellant did not receive a fair trial according to law. He confirmed that the printed notice of appeal in the record was erroneously completed as an appeal against sentence instead of conviction. We will order that it be amended to reflect the true state of affairs and that, as so

amended, the appeal against conviction be dismissed.