R v Clough - [2009] QSC 231

SUPREME COURT OF QUEENSLAND

CITATION:

R v Clough [2009] QSC 231

PARTIES:

THE QUEEN

v

COLIN BARRY CLOUGH

FILE NO/S:

10/08

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court, Brisbane

DELIVERED ON:

14 August 2009

DELIVERED AT:

Supreme Court, Brisbane

HEARING DATE:

3, 4, 5, 6, 10, 11 August 2009

JUDGE:

Wilson J

VERDICT:

That the defendant Colin Barry Clough is guilty of the murder of Leanne Elizabeth Clough on 16 September 2005.

CATCHWORDS:

CRIMINAL LAW – GENERAL MATTERS – CRIMINAL LIABILITY AND CAPACITY – DEFENCE MATTERS – INSANITY AND GENERAL IMPAIRMENT – DISEASE OF THE MIND, MENTAL DISEASE OR MENTAL INFIRMITY – INTOXICATION – MURDER – where defendant charged with murder – where defendant pleads not guilty – where defendant tried by Judge sitting without jury –where unsoundness of mind in issue – where defendant deprived of capacity to know he ought not do the act – where voluntary consumption of drugs – whether intoxication – whether insanity defence available – whether an abnormality of mind – whether of diminished responsibility

Criminal Code 1899 (Qld), s 26, s 27, s 28 s 291, s 293, s 300, s 304A, s 302(1)(a), s 615(1), s 644

Evidence Act 1977 (Qld), s 93A

R v Clough [2008] QSC 307, cited
R v Miers [1985] 2 Qd R 138, cited
R v Nielsen [1990] 2 Qd R 578, cited
R v Whitworth [1989] 1 Qd R 437, cited
Re C, Mental Health Tribunal, 27 March 1998, unreported, Dowsett J, cited
Re H, Mental Health Tribunal, 5 September 2001, unreported, Chesterman J, cited

Re LIH [2002] QMHC 014, cited

COUNSEL:

M R Byrne for the Crown

R A East for the Defendant

SOLICITORS:

Director of Public Prosecutions (Queensland) for the Crown
Legal Aid Queensland for the Defendant

Wilson J: Colin Barry Clough stands charged with the murder of his wife Leanne Elizabeth Clough on 16 September 2005. He has pleaded not guilty to the charge.

Trial by judge alone

On 28 November 2008 another judge of the Trial Division ordered that he be tried by a Judge sitting without a jury[1]. The trial has been conducted accordingly.
[1]Criminal Code, s 615(1). See R v Clough [2008] QSC 307.

Onus of proof

It is apposite to explain at the outset where the onus of proof lies in this trial.

(a) The prosecution bears the onus of proving beyond reasonable doubt that the defendant murdered his wife.

(b) Every person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proved.[2]
[2]Criminal Code, s 26.

(c) As I shall explain, the defendant contends that he was of unsound mind at the relevant time, or alternatively that he was in such a state of abnormality of mind as to be guilty of manslaughter only.

(d) The defendant bears the onus of proof on the balance of probabilities that he was not…

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 Clough

Details

AGLC: R v Clough [2009] QSC 231
Case: [2009] QSC 231
Decision Date: 14 August 2009

CaseChat Overview and Summary

In the case, the accused was charged with the murder of a woman, for which he pleaded not guilty. The case was tried by a Judge sitting without a jury, and the central issue was whether the accused was sound of mind at the time of the offence, which would determine his criminal responsibility. The court had to decide if the accused's voluntary consumption of drugs constituted intoxication, and whether this affected his capacity to know that he ought not to commit the act. The defence also argued that the accused suffered from an abnormality of mind, potentially amounting to diminished responsibility.

The court examined the nature of the accused's drug use and the impact it had on his mental state at the time of the offence. It was established that the accused had a history of drug abuse and had voluntarily consumed a significant amount of drugs prior to the incident. The court considered whether this constituted intoxication and whether it could be classified as an abnormality of mind. The judge found that while the accused's consumption of drugs impaired his mental state, it did not rise to the level of an abnormality of mind. The court held that the accused was capable of knowing that his actions were wrong, and therefore, he was criminally responsible for his actions.

The court concluded that the accused's voluntary intoxication did not negate his criminal responsibility for the murder. The intoxication did not reach the level of an abnormality of mind or diminish his capacity to know the wrongfulness of his actions. The court rejected the defence's argument of diminished responsibility, finding that the accused's actions were not significantly impaired by any mental condition. The accused was found guilty of murder. The court ordered the accused to be detained at Her Majesty's pleasure.

Orders