R v Clough

[2010] QCA 120

SUPREME COURT OF QUEENSLAND

CITATION:

R v Clough [2010] QCA 120

PARTIES:

R
v
CLOUGH, Colin Barry
(appellant)

FILE NOS:

CA No 224 of 2009
SC No 10 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

25 May 2010

DELIVERED AT:

Brisbane

HEARING DATE:

31 March 2010

JUDGES:

Muir and Fraser JJA and Applegarth J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – GENERAL PRINCIPLES – appellant found guilty of murdering his wife – appellant used methylamphetamine in the days leading up to the murder – primary judge found intentional intoxication under s 28(2) Criminal Code included the secondary effect of methylamphetamine consumption – whether primary judge erred in so finding

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – PARTICULAR WORDS AND PHRASES – GENERALLY – appellant deprived of capacity to know he ought not do the act – appellant had psychotic disorder – medical evidence that combination of psychotic disorder and drugs taken in the days leading up to the murder resulted in appellant’s lack of capacity – whether the words “other agent” in s 28(2) Criminal Code include an underlying mental condition

Criminal Code 1899 (Qld), s 26, s 27, s 28, s 304A

Dearnley v The King [1947] St R Qd 51, cited
R v Fenton (1975) 61 Cr App R 261, cited
R v Gittens [1984] QB 698, cited
R v Whitworth [1989] 1 Qd R 437, cited
Re Bolton, Ex parte Beane (1987) 162 CLR 514; [1987] HCA 12, cited
Re Bromage (1991) 1 Qd R 1, cited
Re Claybourn (Unreported, Queensland Mental Health Tribunal, Dowsett J, 27 March 1998), cited
Re Hatch (Unreported, Queensland Mental Health Tribunal, Chesterman J, 5 September 2001), cited
Re Mach [2008] QMHC 13, cited
Re Plant (Unreported, Queensland Mental Health Tribunal, Dowsett J, 27 March 1998), cited

COUNSEL:

T Carmody SC, with R East, for the appellant
M J Copley SC for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

1. MUIR JA:  Introduction

The appellant, after a trial before a judge sitting without a jury, was found guilty of murdering his wife on 16 September 2005.  He appeals on two grounds:

Ground 1 – the primary judge misdirected on intoxication;

Ground 2 – the primary judge erred in the application of s 27, s 28(2) and s 304A of the Criminal Code 1899 (Qld).

Relevant evidence

1. Before stating the arguments advanced for and against the grounds of appeal, it is desirable to say something of the factual background against which the primary judge made her findings.  The appellant, who was 38 years of age at the time of the trial, had a long history of drug abuse.  He had been using cannabis since he was 15 and…