R v Brown

[1993] QCA 545

IN THE COURT OF APPEAL [1993] QCA 545

SUPREME COURT OF QUEENSLAND

C.A. No. 274 of 1993

Brisbane
[R. v. Brown]

BETWEEN:

T H E Q U E E N
v.
BERNARD CHARLES BROWN

(Appellant)

The President
Mr Justice Pincus

Mr Justice Williams

Judgment delivered 17/12/93

Reasons for Judgment of the Court

APPEAL ALLOWED. SET ASIDE THE CONVICTION. ORDER A RETRIAL.

CATCHWORDS:	CRIMINAL LAW - murder - summing-up - direction not to disbelieve evidence of accused because of his interest, but to keep it in mind - whether misdirection - whether miscarriage of justice.
Counsel:	M Burns for the appellant B Butler for the respondent
Solicitors:	Hemming & Hall for the appellant Director of Prosecutions for the respondent

Hearing Date: 30 November 1993
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 274 of 1993

Brisbane

Before The President
Mr Justice Pincus
Mr Justice Williams

[R. v. Brown]

BETWEEN:

T H E Q U E E N
v.
BERNARD CHARLES BROWN

(Appellant)

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 17/12/93

This is an appeal from a conviction for murder on 25 June
1993. On that day, the appellant was sentenced to life
imprisonment for the murder of his wife on 26 August 1992.
Although on appeal an alternative hypothesis was advanced for
the appellant, the trial was conducted on his behalf on the
footing that he had done the act which caused the death of the
deceased. As the trial judge summarised it in his charge to the
jury:

"The whole case has been conducted before you, really, more or less on the assumption that the accused shot his wife and hit her on the head with the hammer rather than some other person or persons may have done it."

The deceased was shot twice in the back of the head and received severe head injuries consistent with the application of a considerable amount of blunt force. Her body was found in the bed in the bedroom which she shared with the appellant. A hammer was located beside the bed. There were blood stains on the floor and on the wall adjacent to the bed. There was a blood splatter behind the head of the bed. A search of the boot of the appellant's car revealed blood stained bed clothes, a pillow and pillow slip each with a bullet hole and a pair of grey tracksuit pants belonging to the appellant with two .22 calibre discharged cartridge cases in the pocket. There was evidence that the discharged cartridges had been fired from a .22 calibre Springfield rifle kept with other guns at the appellant's house. When interviewed by the police and asked how his wife died, the appellant said "I don't know, I think I shot her, I don't know, I have no idea". He said he went to sleep beside his wife after midnight and woke about 5 a.m. and then realised that his wife was dead. He moved the body, wiped up some of the blood stains and took the bed clothes to the car. In his evidence, he said that the statement that he had shot the deceased was based upon an assumption that he had done it.

It was submitted for the appellant that the jury's verdict was unsafe and unsatisfactory and that, acting reasonably, the jury should have entertained a sufficient doubt as to entitle the appellant to an acquittal.

One hypothesis advanced in this Court was that another person might have killed the deceased either while the appellant slept beside her or while he was absent from the bedroom at the lavatory during the night. Reference was made to omissions in the proof of the prosecution case which, it was said, left it in doubt whether the appellant had fired the shots or struck the blows which killed the deceased. Thus, for example, there was an absence of fingerprints to connect the appellant to the hammer or the gun which was used to shoot the deceased and, it was submitted, a lack of proof even that the Springfield rifle or the hammer found beside the bed were the weapons used in the killing. Particular emphasis was placed upon unidentified fingerprints found in the house, some of which were found in the bedroom where the deceased was killed. It was submitted that these fingerprints, of themselves, were sufficient to raise a reasonable doubt.

In the circumstances, there is no need for us to deal with these assertions on behalf of the appellant in detail. Given that there were additional matters of which the prosecution might prudently have called evidence, there was a strong, if not overwhelming, case to establish that it was the appellant who killed the deceased.

As pointed out in the extract from the trial judge's summing up quoted above, this assumption substantially underlay the trial. The primary hypothesis raised for the appellant was that he was not criminally responsible for the killing because it occurred independently of the exercise of his will in that it occurred while he was sleep-walking. There was some evidence, including some expert opinion, called to raise this hypothesis, and it was submitted that, because a medical expert testified that it was "possible" that the appellant had killed the deceased while in a state of automatism, the jury's verdict was unsafe and unsatisfactory. However, it was plainly open to the jury to disregard evidence relied upon by the appellant and to reject this hypothesis, and there is no substance in the submission that, for this or any other reason, the verdict was unsafe or unsatisfactory.

Nonetheless, the appellant was undoubtedly entitled to have the jury consider the possibility of somnambulism and, for this purpose, to have the evidence material to that issue properly considered.

As the trial judge correctly pointed out to the jury, the appellant's own evidence was essential to establish a foundation for the expert opinion upon which he relied. The appellant gave evidence at his trial, including evidence that he had a history of sleep-walking as a child and again as an adult since an accident at work in 1988 and that he suffered from sleep apnoea. According to him, he had been drinking alcohol on the night of the killing, went to bed at about 10.30 p.m., took two Mogadon tablets to help him sleep at about midnight, went to sleep at that time, went to the lavatory once or twice during the night and awoke at 5.00 a.m. to find his wife dead.

At a number of points in his summing up to the jury, the trial judge emphasised to the jury that the appellant's evidence was "of critical importance" and that acceptance of that evidence by the jury provided an essential basis "for this sleep-walking explanation that has been placed before you". Elsewhere his Honour said that the jury's consideration of the expert evidence called for the appellant depended "basically upon your accepting the truthfulness and reliability of the accused man on the facts [the experts] rely upon. You have to be satisfied that at least he might be telling the truth".

Later, after telling the jury that they were required to consider very carefully what the appellant said and the way he said it, his Honour said that basically "it is your assessment of his reliability that will determine, I think, what your verdict in this case is."

In these circumstances another passage from his Honour's
summing up to the jury assumes fundamental importance. He said:

"Does he have any interest in the outcome of this trial? Well, of course he has an interest in the outcome of the trial. All accused people have an interest in the outcome of their trial, but, goodness, you don't for that reason take with a grain of salt what they say. The accused is the only person who can give evidence as to what part in the scheme of things he played in the killing of his wife consciously. He is the one in the bedroom when she was killed, he was the one whose actions have been analysed. He has given his versions of the events, he has given his evidence as to the circumstances which are relevant for your consideration in this case. You keep in mind, of course, that he is giving evidence on his own murder trial, but you don't for that reason treat it, as I say, with a grain of salt or shrug your shoulders and say, "What would you expect an accused person to say who is trying to avoid a conviction." It is very often the case, members of the jury, that the accused is the only person where a criminal offence is committed who can say whether he did do it or he didn't.

Essentially, particularly in cases where identity is in issue, it would be a terrible state of affairs if just because he was the man on trial you treated his evidence with some reservations. So, you don't do that. You treat him as any other witness, but you keep in mind, of course, the fact that he has that interest, and you look at him carefully, as I am sure you did, and you assess him keeping in mind that he is on trial for murder, but keeping in mind also how he gave his evidence and what impression it made on you as he was giving it".

The effect of those directions, in summary, is that the jury were told that they were not to disbelieve the evidence of the appellant merely because he was interested in the outcome of the proceeding as the accused charged with murder, but to "keep in mind" his interest in determining whether or not to accept that evidence.

That was a misdirection: see Robinson v. R. [No. 2] (1991) 65 A.L.J.R. 644; Stafford v. R. (1993) 67 A.L.J.R. 510. In the latter case, in refusing special leave to appeal, three members of the High Court (Deane, Dawson and Toohey JJ) said:

"It follows from the decision of this Court in Robinson v. Reg (No. 2)(1991) 65 ALJR 644, that a trial judge should not direct the jury that the 'interest' of an accused in the outcome of his or her trial is a 'factor' to be taken into account in assessing his or her evidence. Nor should a trial judge direct the jury to the effect that, in assessing the evidence of all the witnesses, they should take account of their relative interests in the outcome. Any direction which directly or indirectly requires or invites an assessment of the reliability of the evidence of the accused or the relative reliability of the evidence of the accused and other witnesses by reference to interest or lack of interest in the outcome of the trial is likely to be understood by the jury as a direction or invitation to discount the evidence of the accused who will inevitably be seen as having a greater interest in the outcome of the trial than any other witness. That is what the decision in Robinson was directed against.
Ordinarily, and notwithstanding what is said by the Court of Appeal of Queensland in this case about 'an admission of impotence', it is preferable that a trial judge refrains from directing attention to the interest of the accused in the outcome of the trial as a relevant factor in assessing the reliability of his or her evidence. If the circumstances of a particular case are exceptional and require some reference to the accused's interest in the outcome as a matter of fairness to the accused, it should suffice to inform the jury that they must approach the case on the basis that the accused is presumed innocent of the acts which are the subject of the indictment and that it would be wrong and unfair for the jury to discount the evidence of the accused simply for the reason that, as the accused, he or she has a particular interest in the outcome of the trial." (510-511)

If and insofaras these statements are inconsistent with decisions of the Court of Criminal Appeal (R. v. Allen No. 175 of 1991, 11 December 1991; R. v. Wilson (1992) 2 Qd R 174) or this Court (R. v. Roach (1992) 60 A Crim R 353; R. v. Westropp No. 219 of 1991, 29 April 1992; R. v. Stafford No. 122 of 1992, 25 August 1992), those cases should no longer be followed.

In Stafford, this Court dismissed the appeal and, as stated, the High Court refused special leave to appeal. The basis of those decisions was that there had been no miscarriage of justice. The observation of the High Court in Stafford was considered in R. v. Rezk (No. 281 of 1992, 8 October 1993). In the end result this Court in that case, by a majority, held there had been no miscarriage of justice consequent upon the reference in the summing up to the "interest" of the accused, and the proviso was applied. The specific reference in that case to the "interest" of the accused was made primarily to redress the position of the accused in the light of statements made in the course of counsel's addresses. As the Chief Justice and McPherson J.A. said at 20-21: "... it emerges from what follows that his Honour's only concern was to discourage the jury from discounting the appellant's testimony on the ground that he was the accused. ... The case is therefore one in which the trial Judge invited attention to the relative interests of the witnesses, but he did so for the purpose of attempting to redress the balance in favour of, and not against, the appellant as a witness". In those circumstances their Honours concluded that the error in the summing up was "not necessarily fatal". However, a similar conclusion cannot safely be arrived at in this instance. There was nothing said by the learned trial judge in this case to indicate that his remarks were motivated by a desire to counter submissions made by the prosecutor in his final address. That is sufficient to distinguish this case from R. v. Allen (C.A. No. 376 of 1993) in which judgment was handed down on even date.

The errors made here by the learned trial judge were in drawing the attention of the jury to the interest of the accused in the outcome of the trial, and further, and perhaps more significantly, encouraging them to keep in mind that fact and to look "carefully" at his evidence. Such directions are inconsistent with Robinson and Stafford.

The trial judge thought that there were some weaknesses in the prosecution case, which he emphasised in his summing up. Nonetheless, it was a very strong Crown case with ample evidence to support a conviction. However, its strength depended upon the appellant being disbelieved and, if he was believed, it could not be said that the jury must or would necessary have convicted.

His Honour emphasised, as noted above, that the jury's assessment of the accused's reliability would determine their verdict. It is against that background that this Court must consider the passage from the summing up objected to, and in particular the sentence: "You treat him as any other witness, but you keep in mind of course, the fact that he has that interest, and you look at him carefully, as I am sure you did, and you assess him keeping in mind that he is on trial for murder, but keeping in mind also how he gave his evidence and what impression it made on you as he was giving it." The only rational conclusion open is that his Honour was inviting the jury to assess the reliability of the accused's evidence taking into account his interest in the outcome of the trial, and also taking into account the relative reliability of his evidence given the interest in, or lack of interest in, the outcome of the trial on the part of other witnesses. The passage is but another illustration of the type of observation condemned in Robinson.

In these circumstances, there is no alternative but to allow the appeal, set aside the conviction and order a retrial.