R v. Exposito

[2007] QCA 53

SUPREME COURT OF QUEENSLAND

CITATION:

R v Exposito [2007] QCA 53

PARTIES:

R
v
EXPOSITO, Antonio
(appellant)

FILE NO/S:

CA No 201 of 2006
SC No 340 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

2 March 2007

DELIVERED AT:

Brisbane

HEARING DATE:

14 February 2007

JUDGES:

McMurdo P, Williams JA and Mullins 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 AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – where appellant convicted of murder – whether any miscarriage of justice resulted from counsel's conduct – whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence

Criminal Code 1899 s 23, s 272, s 304, s 668E(1)

MFA v The Queen (2002) 213 CLR 606
TKWJ v The Queen (2002) 212 CLR 124

COUNSEL:

The appellant appeared on his own behalf
M J Copley for the respondent

SOLICITORS:

The appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

1. McMURDO P:  The appellant was convicted on 4 July 2006 after a six day jury trial of murdering Antonio Sanchez on 1 May 2003 at the Gold Coast.  He appeals against his conviction contending that his barrister "failed to follow my instructions and was incompetent in some parts of the trial.  The barrister deprived me of presenting my evidence and he left out the most important elements of my defence."  He also contends that "the verdict is unsafe and unsatisfactory and contrary to law."

The evidence at trial

1. Before turning to the grounds of appeal, it is helpful to outline the evidence before the jury. 

1. The deceased, the fiancé of the appellant's former wife, died on 1 May 2003 as a result of burns suffered outside the Italian Club at the Gold Coast on 9 February 2003.

1. The appellant's former wife, Delores Balaguer, gave evidence through an interpreter that she and the appellant married in Spain in 1972.  They came to Australia with their four children in 1982.  They divorced in 1998 but they lived together on various occasions prior to 2002, including when they moved to Queensland in 2000.  They were not living together by the time Ms Balaguer began a friendship with the deceased.  That friendship developed into a de facto relationship and their engagement by late 2002.  In early 2003, Ms Balaguer and the appellant arranged to meet through their adult children.  Ms Balaguer said this meeting was intended to help the appellant understand and accept that his relationship with her was over.  The deceased also attended that meeting.  The appellant and the deceased argued.  The deceased said to the appellant that Ms Balaguer was not his wife anymore and he would not take anything from him. 

1. The appellant's daughter, Ms Susana Amosa, gave evidence of that meeting.  The deceased told the appellant that he and Ms Balaguer were engaged; the family was invited to their engagement party to be held about a week later on St Valentine's Day, 14 February 2003, but the appellant was not to come.  At the end of the discussion, the appellant told Ms Balaguer that "it was lucky … that she came to see him otherwise he would have burnt him … or lit him up on fire" or similar words, "him" referring to the deceased.  The deceased said, "She is not your wife anymore, she's mine … you took advantage of her and you have lost her now".  Ms Amosa's husband prevented the appellant and the deceased from fighting.

1. Ms Balaguer gave evidence that at about 5.00 or 6.00 pm on the evening of 9 February 2003 she and the deceased drove in the deceased's vehicle to the Italian Club to pay the deposit for their engagement party planned for the following week.  The appellant was outside the front door and told the deceased not to stop Ms Balaguer from kissing him. 

1. Joan Capone also saw the appellant outside the club.  He was swearing about his "ex-wife".  His conversation was jumbled.  He was angry.  He said, "There's going to be big trouble here today, my friend".  He walked to a nearby car and drove out of the car park.

1. Ms Balaguer saw the appellant inside the club later during the evening.  Before she had dinner she went outside to speak to him.  He wanted her to resume their relationship, to forget about what had happened in the past and to leave with him that evening in his car.  She refused.  She told him again that everything between them had finished.  He said that she was lucky because "when I went to Sydney I didn't find a pistol because if so both you and he would now be dead".  She told him he was crazy.  She began to cry and returned inside the club.  The appellant came over to her table.  He said very quietly to her, "You haven't given me your address, you haven't given me your telephone, but tonight I'm going to follow you".  Sometime later that evening she told the deceased about this conversation with the appellant.  He then confronted the appellant.  The two men exchanged angry words and scuffled with each other near the bar.  Other patrons intervened to end the incident.  The appellant was very cross, red-faced with anger and very upset.  Ms Balaguer and the deceased stayed at the club for about another 30 minutes or so before leaving and returning to the deceased's car.  The deceased opened the passenger side door for her before walking to the driver's side door.  She heard him shout and saw that he was covered in flames.  She was in a state of shock as she watched him on fire running towards the club.  She followed him inside the club where he was lying on the floor covered with a blanket.  People were putting water and ice on him and smoke was coming off his body.  He was conscious and talking.  He was taken by ambulance to the Gold Coast hospital. 

1. Neither she nor the deceased smoked.  The appellant did not normally smoke but he may occasionally have had a cigar.[1]    She thought she had seen him smoking that evening.

   [1]          It seems there may have been some confusion in translating the Spanish word for "cigar" and this   may be "cigarette" but nothing turns on this.

1. Mr Charles and Mrs Violeta Kitney were friends of Ms Balaguer.  Mr Kitney gave evidence that they attended the Italian Club on 9 February 2003.  He saw the scuffle between the appellant and the deceased inside the club.  The appellant "sort of retreated" because the taller deceased had the edge on him in the scuffle. Shortly afterwards the appellant left the club.  Later in the evening he saw the deceased and Ms Balaguer leave the club hand in hand.  He decided to follow them outside.  Mrs Kitney accompanied him.  He saw the deceased open the door for Ms Balaguer, walk around the back of the car, unlock the driver's side door and open it.  The appellant appeared from out of the darkness carrying a white plastic bucket with his two hands.  The bucket appeared to have a bit of weight in it.  The appellant ditched the contents of the bucket over the deceased from a distance of between one and two metres.  The deceased said, "Antonio, no."  He next saw a lighter spark in the appellant's right hand and then flames.  The deceased was "totally in flames, totally on fire" and screamed "Aqua, aqua" (Spanish for "water").  Later Mr Kitney noticed on the ground nearby the remains of a melted bucket and of another receptacle which looked like a brown plastic melted bottle.  Some rocks were chocked under the rear wheels of the deceased's car. 

1. Mrs Violeta Kitney was, like the appellant, the deceased and Ms Balaguer, a Spanish speaker.  She gave evidence through an interpreter.  She said that after Ms Balaguer became friendly with the deceased she would sometimes run into the appellant at the Italian Club.  Every time she saw him he would, when referring to the deceased, make a cut-throat gesture with his hand across his throat, indicating he was going to cut the deceased's throat. 

1. She saw the appellant at the club on the evening of 9 February 2003.  He said to her, "Look, tear up the invitation because there's not going to be a party."  He said, "No don't go to the party because I swear by my grandchildren there won't be a party" and he kissed his thumb, a Spanish custom to indicate a sworn intention to carry out a deed.  He was not affected by alcohol.  He did not usually smoke but that day he had a cigar[2] in his mouth and was using a lighter.  She saw the scuffle between the appellant and the deceased in the club.  She tried to separate them and told them not to fight.  The appellant repeated his assertion that there would be no party, swearing on his grandchildren.  At about 9 pm he said goodbye and left.  Ms Balaguer and the deceased left towards 10 pm.  Her husband went to the door and she followed.  She saw Ms Balaguer get into the car and the deceased move from her door around the back of the car to his.  The appellant had a bucket.  He lit a piece of paper inside a plastic bottle.  The deceased said, "No, Antonio, no".   He threw the bottle at the deceased.  The flames were so high that the appellant had to step back.  Mrs Kitney was in shock.  The appellant was leaning on his car, smiling.  The deceased was in flames from his feet to his head. 

   [2]See above.

1. In cross-examination it became clear that Mrs Kitney did not mention in her written statement to police that the appellant was smiling after the deceased was burnt.

1. Both Mr and Mrs Kitney denied the version of events put to them in cross-examination by the appellant's barrister that the deceased was seated in his motor vehicle when the appellant poured some petrol on him, then got out of his car, picked up a bucket and lighter, threw the contents of the bucket on the appellant and caught fire himself after flicking the lighter that he had picked up.  They each maintained the accuracy of their version of the event given in evidence-in-chief.

1. After the incident the appellant went to the home of his son, Tony Exposito.  Mr Tony Exposito gave evidence that his father was not then affected by alcohol but he looked shaken up.  He asked his father what was wrong.  The appellant replied that he had had a fight with the deceased.  He said, "I threw fuel on him and I missed and then he tried to grab the bucket and tried to throw it on me and then, yeah, threw another one and he lit up the lighter and one of them got burnt or both of them got burnt."  Mr Tony Exposito said that the appellant used the pronoun "he" in relation to lighting the lighter to mean his father, the appellant.  The appellant had a burn on his forearm but it did not seem to need attention.  The appellant did not say anything about events inside the club beforehand.  He said, "I did it" and referred to the deceased as "a son of a bitch".  He seemed in a state of fury and anger. 

1. Patrick Gillet, who knew neither the deceased nor the appellant, was walking to his car outside the Italian Club at about 9.30 pm on 9 February 2003 when he saw a blue flash in the corner of his eye and then saw a man on fire.  The flames reached two storeys in height.  He noticed a couple of white plastic four litre containers of the sort that hold fruit juice in front of the white car.  They had liquid in them and smelled of petrol.  Because there were flames around he moved them away. 

1. The liquid was later weighed and analysed at the direction of police.  It was approximately 20 ml of petrol.  A police officer also found a lighter in a garden bed in the car park.  No identifiable prints were found on it.

1. The appellant did not give or call evidence.

The lawyers conduct of the trial

1. The appellant represented himself in this appeal, addressing the Court with the assistance of an interpreter.  His application for Legal Aid had been refused as had the reviews of that decision.  He chose not to seek an adjournment to apply for legal assistance through the Court of Appeal pro bono scheme and informed the Court that he wished to represent himself.  After confirming that he maintained the ground of appeal alleging that his barrister failed to follow his instructions and was incompetent, he gave the following evidence on these issues through his interpreter.

1. He told his barrister that he had kept petrol in his car for about two weeks before 9 February 2003 because the fuel gauge was broken.  His barrister did not mention this in court.  His barrister said that the barrister could not present evidence himself to the court.  He told his barrister that the deceased had taken the bucket of petrol from him and poured petrol on him (the appellant); the deceased caught him by the arm and struggled with him; the deceased lit the flame which caused his own death.  His barrister did not mention this to the court.  Important inconsistencies in the evidence of witnesses emerged between their evidence at the committal proceedings and at the trial and his barrister did not mention these inconsistencies to the court.  When asked for the most important of these inconsistencies, he said that, for example, Mrs Kitney at the committal said she saw the appellant throw a bottle at the deceased but at the trial she did not mention a bottle.  The barrister did not mention to Mrs Kitney that the appellant would never have indicated with his hand that he would cut the deceased's throat.  The appellant told his barrister that he initially poured petrol on the deceased when he was sitting inside his car; this was supported by the evidence of petrol on the driver's seat of the deceased's car; the barrister did not emphasise this.  Another inconsistency between the evidence of a witness at the committal and at trial was that Mr Kitney at the committal said he saw the appellant throw a little bottle at the deceased but at the trial made no mention of this.  He complained on many occasions that, although his solicitor, barrister and interpreter well knew his account of the events on the night of 9 February 2003, his case was not put at the trial. 

1. He was cross-examined by counsel for the respondent.  He agreed that no prosecution witnesses said that he purchased petrol on the night of the fire.  He was taken to passages in the transcript where his barrister clearly put his case of which he gave evidence in this Court to both Mr and Mrs Kitney and to Ms Balaguer; they all denied the case put.  He was also taken to the uncontested evidence at trial that the driver's seat of the deceased's car was saturated with petrol and that the car smelt strongly of petrol. 

1. He agreed that he saw his lawyers on a number of occasions before his trial.  His solicitor could speak Spanish but his barrister could not.  He was shown a five page document headed  "R v Antonio Exposito" and "Instructions" dated 27 June 2006.  He agreed that his signature was on each page.  It became exhibit 1 in the appeal.  His attention was drawn to paragraphs 3 and 8 to 18 inclusive which provide:

"3.  I confirm that my legal representatives have explained the evidence against me and the strength of the prosecution case and possible difficulties with my version of events. I confirm I fully understand the evidence against me and have provided my response to the evidence in my Statement of Fact dated 26 May 2006.
…
8.  I understand that I can if I wish give and / or call evidence on my own behalf.
9.  I have discussed the case with my barrister, and in particular, I have discussed the situation in relation to my giving and calling evidence on my behalf at my trial. As a result of these discussions my barrister has given me certain advice.
10.  I understand that I may:
  10.1     give evidence on my own behalf and call evidence;

10.2     give evidence on my own behalf but not call any other    evidence;

10.3     call evidence but not give evidence on my behalf; or

10.4     neither give or call evidence on my behalf.

11.  I understand that if I choose to give evidence at my trial that:
  11.1     I will have the opportunity to put my story before the court;

11.2.    the Prosecutor will have the opportunity to cross examine         me; and

11.3.    my barrister will lose the right of last address to the Jury.

12.  I understand that if I give evidence at my trial that my demeanour in court, and what I say may be taken into account by the Judge and Jury.

13.  I understand that if I choose to give or call evidence at my trial and lose the right of last address to the Jury, that the procedure for the closing addresses will be as follows:

13.1.    my barrister will give his closing address to the Jury first;

13.2.the Prosecutor will then give his closing address to the Jury (after my barrister);

13.3     the Judge will give certain directions to the Jury; and

13.4the Jury will be sent away to reach a decision regarding my guilt.

14.  I confirm my barrister has advised of the possible importance of the closing address to the Jury, and that if my barrister gives the last address that that will be the last address the Jury hears before the Judge gives his directions.
15.  I have considered the advice of my barrister and my rights thoroughly, and I instruct that I do not want to give evidence at my trial. I understand that by not giving evidence at my trial that the court will not get to hear my story from me and will only be made aware of a limited version of my story through the questions asked by my barrister. Direct evidence of certain matters such as Sanchez using the lighter will not be before the jury unless some other witnesses give evidence of it.
16.  I instruct my legal representatives that there are no witnesses I want to call on my behalf at my trial.
17.  I understand that the decision with regard to me giving evidence and calling evidence on my behalf at my trial is entirely my own, and I make it of my own free will, independent of any undue influence by any party. Further, I make it fully understanding its implications and consequences.
18.  No threat or promise has been made to me or inducement held out to me to make this decision in relation to giving or calling evidence at my trial.
…"        (emphasis as in the original)

1. He agreed his barrister told him there were advantages and disadvantages in giving evidence but he decided not to give evidence because he trusted his barrister to explain the case to the jury.  At the end of the trial, after prosecution and defence counsel addresses were completed, he told his barrister that he wanted him to put his case because the truth had not come out. 

1. The Court indicated to counsel for the respondent, that in the light of the appellant's evidence in cross-examination that he had given the signed instructions contained in exhibit 1 and had exercised a free and informed choice not to give evidence, this ground of appeal was not made out.  Counsel for the respondent then stated he would not call evidence from the appellant's trial lawyers, who were then present in the Court of Appeal and available to give evidence. 

1. The appellant has certainly not demonstrated that any miscarriage of justice has occurred as a result of defence counsel's conduct of his case (see TKWJ v The Queen[3]).  Indeed, the appellant has not demonstrated that his barrister did anything but act properly on the appellant's instructions, put the appellant's case to the prosecution witnesses and explain it to the jury in his final address.  The appellant's case appears to have been fairly and comprehensively summarised by the trial judge in his directions to the jury.  No inconsistencies between a witness's evidence at committal and trial were proven but in any case none appeared to be of great weight.  This ground of appeal is unmeritorious and must fail.

   [3](2002) 212 CLR 124.

The reasonableness of the jury verdict

1. The appellant's second ground of appeal, that the verdict was unsafe and unsatisfactory and contrary to law, appears to be a contention under s 668E(1) Criminal Code "that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence".

1. The appellant's contentions on this ground of appeal are as follows.  The prosecution witnesses lied and his version of events as put to the witnesses in cross-examination by his barrister should have been preferred; the deceased was responsible for his own death; the judge should not have allowed so many lies to be told in court.  The appellant repeated his earlier contention that the witnesses told versions conflicting with other witnesses and with their own previous testimony at committal.  When pressed to point out the most important of these inconsistencies, the appellant was again unable to refer to any of substance.  He expressed concern that the judge stated that the appellant left the Italian Club and later returned with petrol because the petrol had always been in his car for legitimate purposes.  The answer to that concern is that, even on the appellant's version, there was no doubt that the appellant did leave the Italian Club building and was later outside with petrol; there was simply no evidence of where or how the petrol was obtained so that this was not a significant issue at trial.  As I have noted, the appellant made a free and informed decision not to give evidence of this and of other matters much more directly relevant to the issues at his trial.  Having made that forensic choice he is bound by it even though he is disappointed in the jury's verdict; he does not have any inherent right to another trial with a fresh opportunity to give evidence.

1. The evidence set out earlier in these reasons makes plain that the jury were entitled to conclude the appellant threw petrol over the deceased and lit it with an intention to either kill or do him grievous bodily harm.  The evidence of Mr and Mrs Kitney which was unchallenged by competing evidence was compelling.  There was nothing to suggest they were partisan or other than objective.  The inconsistencies between their versions as to what they saw transpire immediately before the deceased burst into flames is not surprising bearing in mind the shocking event they witnessed and the speed at which that event took place.  They were in no doubt the appellant was responsible for setting alight the deceased.  There was a considerable body of evidence as to the appellant's animosity towards the deceased well before 9 February 2003.  The rocks placed under the wheels of the deceased's car suggested a degree of planning.  Mr Tony Exposito's evidence of his conversation with the appellant after the event was capable of acceptance as an admission by the appellant of his responsibility for igniting the petrol.  The judge left all possible defences for the jury's consideration, namely provocation, accident and self-defence, and fairly and comprehensively summarised the defence case and contentions.  No complaint was raised about any of those directions.  The jury were entitled on the evidence to reject the defences raised beyond reasonable doubt.  On the whole of the evidence, it was reasonably open to the jury to find the appellant guilty of murder: MFA v The Queen.[4]  This ground of appeal also fails.

   [4](2002) 213 CLR 606, paras 25, 59.

1. It follows the appeal against conviction should be dismissed.

1. WILLIAMS JA:  I have had the advantage of reading the reasons for judgment of the President wherein the relevant issues are summarised. 

1. It was not disputed by the appellant, either at trial or on the hearing of the appeal, that against the background of the relationship between the deceased and Delores Balaguer on the one hand and the appellant on the other, and in particular what happened inside the Italian Club earlier on the evening of 9 February 2003, the appellant:

(i)placed rocks behind the rear wheels of the deceased's parked motor vehicle, thereby preventing it from being driven away quickly;

(ii)took a bucket of petrol to the vicinity of the deceased's car as the deceased and Delores Balaguer were about to enter it;

(iii)had a cigarette lighter in his possession;

(iv)threw some of the petrol over the deceased.

1. It is also not in dispute that the petrol on the deceased caught alight occasioning him serious burns from which he ultimately died, and that the appellant only suffered an extremely minor burn to an arm. 

1. Two eyewitnesses gave evidence that after the appellant was seen to throw petrol on the deceased, it was the appellant who was responsible for igniting the petrol, probably by using his cigarette lighter.

1. The appellant's son gave evidence that shortly after the incident the appellant arrived at his home and said, in effect, that he (the appellant) threw petrol on the deceased but missed, and the deceased then tried to throw the petrol on the appellant; the appellant then said that he (the appellant) then used the lighter to ignite the petrol.

1. The principal defence case at trial, as put by the appellant's then counsel to the two eyewitnesses, was that the appellant threw some petrol onto the deceased (some of which went on to the seat of the deceased's motor vehicle), and that he then put the bucket and lighter down on the ground.  Thereafter, the defence case as put was that the deceased picked up the bucket and lighter, threw petrol at the appellant, and then ignited the petrol with the cigarette lighter he had picked up.  That sequence of events was denied by each of the eyewitnesses.  If that was accepted the deceased was the cause of his own death.

1. In dealing with the defence case in the course of the summing up the learned trial judge, inter alia, instructed the jury that in order to find the appellant guilty of murder they had to be satisfied beyond reasonable doubt that at the material time he had an intent to kill or cause grievous bodily harm.  He also directed the jury on criminal negligence (with respect to the use of the cigarette lighter given that petrol was splashed around) and directed that a finding of criminal negligence would result in a verdict of guilty of manslaughter.  The jury was then directed on a possible defence of accident (s 23 of the Criminal Code).  The jury were directed that if that defence could not be rebutted they would have to find the appellant not guilty.  Finally, the summing up, in dealing with the issues raised by the defence, canvassed provocation (s 304 of the Code) which would result in a verdict of manslaughter, and self‑defence (s 272 of the Code) which could exonerate the appellant. 

1. The defence of self-defence was based on the version given by the appellant to his son shortly after the events in question; that was, the appellant assaulted the deceased by throwing petrol over him, and the deceased then threw petrol over the appellant causing the appellant to be in such fear for his own life that in order to defend himself he lit the fuel on the deceased. 

1. No challenge was made to anything said by the trial judge in the course of the summing up.  A reading of it discloses no errors of law, and by leaving all possible defences it was extremely fair to the appellant.

1. Given the background animosity displayed by the appellant towards the deceased, the undisputed facts set out above, and the evidence of the eyewitnesses, a finding of guilty of murder was inevitable.  The contention that the deceased threw petrol over the appellant is a highly unlikely scenario given that the appellant did not receive any significant burns in the conflagration which followed the ignition of the petrol on the deceased. 

1. It is clear that defence counsel at trial put the appellant's instructions, where appropriate, to each of the prosecution witnesses, and that the appellant made an informed and voluntary decision not to give evidence.  There is no basis for challenging the conduct of defence counsel at trial.

1. Further, for the reasons given above, the verdict of the jury was not unsafe and unsatisfactory; the verdict was more than reasonably open on the evidence. 

1. I agree with the President that the appeal must be dismissed.

1. MULLINS J:  I agree with the President.