R v Craggs

[1995] QCA 405

IN THE COURT OF APPEAL	[1995] QCA 405
SUPREME COURT OF QUEENSLAND

C.A. No. 213 of 1995

Brisbane

Before McPherson J.A.

Moynihan J.

Fryberg J.

[R. v. Craggs]

T H E Q U E E N

v.

JAMES CARLTON CRAGGS

(Appellant)

McPherson J.A.
Moynihan J.

Fryberg J.

Judgment delivered 1/09/95

Joint reasons for judgment by McPherson J.A. & Fryberg J. Separate concurring reasons by Moynihan J.

APPEAL AGAINST CONVICTION DISMISSED.

CATCHWORDS	CRIMINAL LAW - MURDER - Whether evidence established intent to kill or do grievous bodily harm - Whether sufficient opportunity was extended to the appellant to obtain legal representation - Whether interview should have been excluded from the jury on the ground of involuntariness or in the exercise of the trial judge's discretion - van der Meer v. R. (1988) 82 A.L.R. 10.
Counsel:	J. Jerrard Q.C. for the appellant L. Clare for the respondent
Solicitors:	Robertson O'Gorman for the appellant Queensland Director of Public Prosecutions for the respondent
Hearing Date:	17 August 1995

JOINT REASONS FOR JUDGMENT - McPHERSON J.A. & FRYBERG J.

Judgment delivered the 1st day of September 1995

This is an appeal by James Craggs against his conviction after a trial in the Supreme Court on a charge of murdering Michael Kearin Feeney on 18 March 1994. The deceased died as a result of multiple injuries inflicted on him at his home at Enoggera at about midnight on 17-18 March 1994.

On appeal, it was not suggested that the appellant was not responsible for the injuries or for the death that ensued. His grounds of appeal are as follows:

"1.

There was insufficient evidence to establish the intent to kill or to do grievous bodily harm so as to render sufficient a verdict of murder rather than manslaughter.

2.

The circumstances of the taking of the records of interview were such that insufficient opportunity was extended to me having regard to my age and other matters to obtain legal representation and advice during the course of various records of interview conducted by police with me in the hours after I was taken to the police station for questioning and consequently the records of interview should have been excluded from the consideration of the jury on the ground of involuntariness or in the exercise of the Trial Judge's discretion on the basis of unfairness."

Although Mr Jerrard Q.C. for the appellant did not specifically abandon it, no oral submission was addressed to us in relation to ground 1. It is enough to say that, from the post-mortem examination and the injuries it revealed, there was ample evidence on which the jury were justified in finding that the appellant had, at the very least, intended to cause some grievous bodily harm to the deceased. There were numerous lacerations of the deceased's face, head and neck. His nose was broken; both cheekbones were fractured, as were both sides of the lower jaw. There were multiple fractures of the larynx and extensive bruising of adjacent neck muscles. In all probability the weapon used to inflict these injuries was a porcelain statuette found at the scene, which it may be inferred had continued to be wielded even after it had broken, thus causing the lacerations referred to. In addition, there were numerous broken ribs, which might have been the result of attempts, applied with excessive vigour, to resuscitate the deceased. Other less favourable explanations for those injuries also spring to mind.

The police were alerted to the crime by receiving a series of telephone calls in the early hours of the morning. They were made by the appellant to the emergency number from the deceased's home. The appellant was naturally in a very distressed state. There was evidence that he had attempted to clean the blood from himself by showering. Some days later two pornographic magazines were found under the bed in the deceased's bedroom. The covers and inner pages were stained with the appellant's blood, suggesting that they had been handled by him after the physical encounter with the deceased. There was also a bottle of scotch, with signs of the appellant's blood on it, in the refrigerator.

The appellant was taken into police custody, and soon afterwards he fell asleep. He was interviewed between 6.53 a.m. and 9.10 a.m. (with a break between 7.38 and 8.06 a.m.), and again between 1.09 p.m. and 1.25 p.m. The essence of the account he gave was that he and the deceased had met for the first time at the Roma Street Transit Centre. At the invitation of the deceased, the appellant had gone to his house for a drink. He is a young man aged 21, and the deceased was a man of about 59 who was physically much smaller and less powerful than the appellant. At the direction of the deceased, so the appellant said, he had gone out and hired two R-rated videos, which they watched while they drank scotch. At some stage the deceased had begun trying to touch the appellant's genitals. The appellant hit him with the porcelain statuette. At that, the deceased armed himself with a knife from the kitchen, with which he menaced the appellant. There was a struggle, at the end of which the deceased fell to the ground. The appellant said he guessed he must have stabbed him.

The appellant's statements to police in the course of the interview conveyed the impression that he was an innocent youth of heterosexual inclinations, who was the unwitting victim of unexpected and unwelcome homosexual advances from a much older man. At the trial the prosecution demonstrated that the appellant's statements to this effect were largely, if not entirely, false. A witness named Clark came forward and gave evidence at the trial of having met the appellant at the Transit Centre earlier in the evening of 17 March. The appellant had at the time shown Clark the two pornographic magazines. On the appellant's side, the approach was plainly homosexual in character. Clark's evidence was corroborated by a note written in the appellant's own hand.

Not surprisingly, the jury rejected the explanation of events given by the appellant in the record of interview. He did not give evidence at the trial. The jury, as they were entitled to do, drew inferences from the forensic evidence that the appellant had killed the deceased with the requisite intent. They found him guilty of murder.

The only ground of appeal argued before us was the second of the two set out above. At the hearing it was expanded by means of a supplementary outline of argument, which is as follows:

"Having regard to the procedures laid down for the questioning of disadvantaged persons both in the Queensland Police Service Operational Procedures Manual and the decided cases, it is submitted that the Appellant's position was equally disadvantaged in his denial of his own sexuality and fabricated events based on that denial as are individual members of groups who are, as a whole, recognised as disadvantaged.

In the circumstances, the Police should plainly have recognised this."

It was, however, candidly acknowledged that the submission went beyond existing police guidelines for persons in disadvantaged categories. No authority was cited for any such extension.

Reference was also made to the decision of the High Court in van der Meer v. R. (1988) 82 A.L.R. 10, 26, where it was said that:

"In considering whether a confessional statement should be excluded, the question is not whether the police have acted unfairly. The question is whether it will be unfair to the accused to use his statement against him. Unfairness in this sense is concerned with the accused's right to a fair trial, a right which may be jeopardised if a statement is obtained in circumstances which affect the reliability of the statement."

The submissions for the appellant on appeal appear to have two aspects. One is that an interview with the appellant should not have been had or recorded without advising him that he should first have the advice of a solicitor, parent or older friend. It was said that he was in a disadvantaged position because of his age and distress. Consequently the police must have known that he was telling lies in the course of the interview, although we were, however, not referred to anything that established this circumstance as a fact. In any event, it may be thought that, until the appellant's version was recorded, considered and checked against other evidence, there was no means of determining whether or not he was fabricating a story, or which, if any, parts of it were false and which were true. If the police had not recorded what the appellant was willing to tell them about what had happened, there is little doubt that they would have been criticised for their failure to do so. What he said might, for all they knew, have completely or partially exonerated the appellant. In any event, they have a statutory duty to detect offenders and bring them to justice. Doing so ensures not only that the community is protected, but that unjustified suspicion does not fall on other quite innocent members of society.

The circumstances prevailing at the time of the interview do not suggest that the appellant was unable to give a rational account of what had happened. Indeed, the fact that it later appeared that he was telling lies is itself some indication that he appreciated the difficulties of his position, and was looking for means of diverting suspicion away from himself. That is, of course, itself capable in some circumstances of amounting to an admission of guilt on his part: see Edwards v. The Queen (1993) 178 C.L.R. 193.

The appellant had a right to remain silent if he wished. It is not suggested that the police did not advise him of that right when or before the interview began. It has never been suggested that they forced the appellant to speak, or that he did not participate quite voluntarily in the interview. The real complaint is that by letting him speak, and recording what he had to say, the police deprived a guilty person of his only chance of acquittal. It is not a function of the police or of the courts or the legal system to ensure that such a result ensues.

At the trial the appellant was represented by competent and experienced counsel, who did not object to the admission of the record of interview. On the contrary, he set about building the appellant's defence upon it. The learned judge properly instructed the jury on the issues of provocation and self-defence that were raised. It was nevertheless suggested that the trial judge should have known better. He should, it was said, "not have let the counsel choose the manner in which the trial was conducted ...". This is the second aspect of the submission on appeal. It can only mean that the judge should in effect have dismissed counsel and assumed responsibility for the defence himself. How he could have done so without having had the advantage of privileged instructions, statement, or conference with the client remains a mystery. It is practically certain that a mistrial would have resulted if the judge had acted in that way. It is no part of the judicial function to interfere with the conduct of the defence by experienced and apparently competent counsel. The judge is necessarily ignorant of the strengths and weaknesses of the defence case. He has no instructions from the client, and no means, consistently with his duty to act impartially between prosecution and defence, of obtaining them: cf. Dietrich v. The Queen (1992) 177 C.L.R. 292, 335.

In whichever way the matter is approached, the submissions advanced on appeal are plainly untenable. It was not improper for the police to record the appellant's voluntary account of what had happened. No one at the trial ever suggested it was. It was not wrong of the judge not to assume responsibility for the conduct of the defence. It would have been quite wrong of him to have done so. We were invited to express our "outrage" at the fact that the appellant had not been advised to refrain from speaking to the police. It is, however, difficult to summon any sense of genuine outrage in favour of one who, having committed a brutal and merciless murder, went on to fabricate a story which was designed to transfer to his victim the blame for what had happened. Had it not been for Clark's unexpected intervention, the account given by the appellant might have been sufficient to raise a reasonable doubt about the circumstances of the killing. The real complaint seems to be that, if the appellant had been actively discouraged from speaking to the police, he might have escaped punishment altogether. One may venture the opinion that such an outcome would not appeal to the sense of justice which prevails among most ordinary members of the community.

The appeal against conviction should be dismissed.

REASONS FOR JUDGMENT - MOYNIHAN J.

Judgment delivered 01/09/95

I have read the joint reasons for judgment of McPherson J.A. and Fryberg J. As these adequately disclose this appeal is without foundation. I agree with the order proposed by McPherson J.A. and Fryberg J. for the reasons they have given.