R v Finn
[1994] QCA 1
•4/02/1994
IN THE COURT OF APPEAL [1994] QCA 001
SUPREME COURT OF QUEENSLAND
C.A. No. 375 of 1993
Brisbane
Before:Pincus J.A.
McPherson J.A.
Davies J.A.
[R v. Finn]
T H E Q U E E N
v.
MICHELLE ALICE MARY FINN
Appellant
REASONS FOR JUDGMENT - PINCUS J.A.
Judgment delivered 04/02/1994
W P Chilton died of a stab wound to the heart which he sustained at his home in 1990. The appellant, having been convicted of the murder of Chilton, appeals on the ground that the conviction was unsafe. There was plainly evidence on which the jury might properly be satisfied that Chilton sustained the fatal wound in the appellant's presence, but the question is whether the evidence was enough to form a foundation for a conclusion that the appellant murdered Chilton. I have had the advantage of reading the reasons of McPherson JA and Davies JA, the content of which is such as to make an elaborate explanation of the whole facts of the case, in these reasons, unnecessary.
What the jury had to do was to consider how Chilton came to have the stab wound to his heart, causing his death, the information as to how that occurred coming principally from the appellant, the alleged stabber. Her statements on the subject lacked consistency and coherence.
Statements about the incident made by the appellant to an ambulance officer, shortly after the stabbing, included the following:
"...he punched ah, a bit of a punch up...and I grabbed the
knife"
The police discussed the matter with the appellant in the house where the death occurred, and later they also spoke to her, the interview being recorded, at a police station. In my opinion the course taken by the police, of attempting to obtain an account of the manner of Chilton's death promptly, by questioning the appellant, was a sensible one; to defer that discussion would not have improved the prospects of ascertaining the truth. Before the primary judge it was contended that his Honour should exclude the evidence of the appellant's conversation with the police, but the contention was rejected; his Honour's decision was not attacked before us.
Statements made to the police by the appellant included the
following; where necessary the question to which the statement
was a response is set out:
"Q.What happened?
A.I don't know. I don't know whether I did it or not.
Q.What do you mean by that?
A.Well, he had the knife and then I had the knife. I don't know
what happened."
...
"Q.Where did the knife come from?
A.I don't know. He had it, then I had it, I just don't know
what happened.
Q.Why did you have the knife?
A.I don't know. I can't remember..."
...
"He kept grabbing, he kept pointing the knife all the time
and I wasn't strong enough this morning, it nearly broke my wrist and I pulled away. Said what are you doin', what are you doing to yourself and he just said I don't care anymore and I went into the, the kitchen and when I turned round he, he was bleeding and I thought oh god almighty, so I grabbed the phone there, I didn't, couldn't, didn't know what to do, he was bleeding.
Q.How did the knife get into his chest.
A.I don't know, I was trying to pull it away from him and let go, it went in, I don't know."
...
"Q.Did you...have the knife at any stage.
A....I had, yeah, I threw it in the sink."
...
"Q.How did you, how did you come to the, you said you'd hurt your wrist and you were trying to pull the knife off...
A.Well I was tryin' to take the knife out of his ha, hand and he, and, and he got such a tight grip on me bloody hand so, and I pulled away from him.
Q.And what happened then.
A.Well I fell over, that's when I ah...
Q.Did you fall forward or backwards
A.Backwards.
Q.And where was the knife then.
A.I don't know, he just walked away from me."
...
"All I know is I was tryin' to stop him from hurting himself. He, he just was rattling on, he was so angry."
...
"Q....See what we're trying to find out is, did you put the
knife in him.
A.Well not like that, no. No. Ah, no, I wouldn't do
that."
...
"Q....I'm trying to find out how the knife...
...
A.Just tried to pull it away from him."
...
"He kept struggling with the knife."
...
"Q.Are you saying that he, that he put the knife in, in his
chest himself.
A.I didn't see."
...
"Q.Where was the knife when you saw it.
A.Well I grabbed it off him, I grabbed a knife off him and I threw it in the si, no, I don't know, I think it fell on the floor or something and then I picked it up in disgust and threw it in the sink."
...
"...All I know is I was tryin' to get it out of his hands and that's when he hurt my wrist and I let go. I'm trying to remember whether that, that happened before or after..."
...
"All I know is I tried to take the knife off him, I wasn't
strong enough."
...
"Q.Did he get stabbed during the struggle. Is that what
happened.
A.Well I didn't, I didn't see that. I mean if I, if I, I
don't even know, all I know is that, ah, he was just,
he had the knife and I tried to take it away from him.
I didn't even think of him killin' himself. I just
tried to get the knife away from him."
"...there was no punch up but he did throw the coke
bottle."
...
"No, he threw it at the door, I think."
...
"Q.We know all that but we want to know how the blood got in the hall. How did the knife get in his chest.
A.Well I didn't put it there, I know that. I, I know I was struggling with him."
...
"I know I tried to take a knife out of his hand.
Q.When was that. When did you do that in relation to when he grabbed you by the wrist.
A.That's what I'm trying to remember.
Q.Well it's very important Michelle.
A.I know, I know, I, I'm tryin' to, and I'm tryin' to. I've got to be strong. I can't say he stabbed himself because I didn't see him stab himself Officer."
...
"Ah no, I couldn't have stabbed him. I didn't stab him."
Other statements made by the appellant relevant to the mode of Chilton's death are to be found in the evidence of a Mrs C M Smith. She said that on the day of Chilton's funeral the appellant approached her and told her that she (the appellant) really loved Chilton. Mrs Smith said that the appellant told her:
"I swear to you I did not do it...Mmm, I loved Peter with all my heart...I tried to save him but couldn't."
According to Mrs Smith, five days later she phoned the
appellant who said among other things:
"I know you want to know what happened. I should not be
telling you, but it was suicide...he did it because he
hated working at the crematorium..."
A week later there was a further conversation between the two women, which included a statement by Mrs Smith that Chilton's family wanted to know what happened. The conversation which ensued was sworn to by Mrs Smith as follows:
"Appellant:I don't care if they do need to know,
anyway, I wasn't there.
Mrs Smith:Michelle, where were you?
Appellant:I shouldn't tell you.
Mrs Smith:Why can't you tell me?
Appellant:I was hanging out the washing"
Then on 25 May Mrs Smith said she had a further conversation with the appellant when she asked the appellant what had happened to Chilton and the appellant said she wasn't even at home.
The jury was entitled to be satisfied that the alleged statements suggesting that the appellant was not present when Chilton died were, if made, untrue.
If the jury accepted Mrs Smith's evidence, which was uncontradicted, they might well have concluded that the appellant had lied to Mrs Smith because the appellant knew that she herself was responsible for Chilton's death. But it was argued on behalf of the appellant that the jury were not entitled to treat statements made by the appellant as lies showing a consciousness of guilt. That point is discussed below. For the present, it should be noted that none of the statements attributed to the appellant amounted to a sensible or coherent account of the manner of Chilton's death; the appellant gave no evidence. The jury had to consider the possibility that the absence of such an account was due to the appellant's poor recollection, or absence of recollection, which she mentioned to the police more than once. But the jury was not, in my opinion, obliged to accept that the appellant's apparent inability to give any reasonable explanation of how Chilton died was due to a genuine lack of recall.
Apart from the evidence of conversations with the appellant directly bearing upon the mode of death, there was other evidence which might have been regarded by the jury as affecting the relative likelihood of the death being a suicide, or accidental, or deliberately caused by the appellant. There was some evidence of the relationship between the appellant and Chilton, but that was not likely, in my opinion, to have assisted the jury much. There was, however, evidence which might have tended to make the jury think suicide a rather unlikely explanation of the death. The physical indications at the scene strongly suggested that Chilton was stabbed in a hallway of the house. He apparently died in the kitchen, fully clothed except that his left shoe was off; it was found close to his right hand. There was blood on the left sock consistent with Chilton's having walked to the kitchen after the stabbing with the left shoe off and, by reasonable inference, held in his hand. It seemed, therefore, not unlikely that the stabbing occurred when Chilton was dressing himself - specifically, while he was putting his shoes on. While it is possible to conceive of Chilton's having committed suicide while putting his shoes on preparatory to going to work, the jury could reasonably have treated that as improbable, particularly as he had, according to the appellant, earlier made lunch to take to work. There was also evidence of the appellant's attempts to clean blood away before the police came. These attempts were inherently unlikely to discourage investigators from thinking that the appellant had killed Chilton, but their having occurred was, the jury was entitled to think, hard to reconcile with a completely innocent explanation of the death.
To return to the question of the relevance of lies, it should be reiterated that no complaint is made of the judge's directions on that, or indeed any other, subject. The question is whether any of the lies which were, on the Crown case, told by the appellant were capable of being treated by the jury as an implied admission of guilt: Edwards (1993) 68 A.L.J.R. 40 at 48. That can only be so where -
"...the accused is telling a lie because he perceives that the truth is inconsistent with his innocence..in telling the lie the accused must be acting as if he were guilty. It must be a lie which an innocent person would not tell" (Ibid)
In the reasons from which this quotation is taken, those of Deane, Dawson and Gaudron JJ, one finds discussion of the question whether the requirement that, for the lie to be relevant in proof of guilt, the motive for it must be a realisation of guilt involves circular reasoning. The reasons dealing with that subject include the following:
"But ordinarily a lie will form part of the body of evidence to be considered by the jury in reaching their conclusion according to the required standard of proof. The jury do not have to conclude that the accused is guilty beyond reasonable doubt in order to accept that a lie told by him exhibits a consciousness of guilt. They may accept that evidence without applying any particular standard of proof and conclude that, when they consider it together with the other evidence, the accused is or is not guilty beyond reasonable doubt." (49)
Here, the case is one in which the lies told form part of a body of evidence put before the jury to prove guilt; they are not the only evidence relevant to that. It appears to me plain that it was open to the jury to conclude "without applying any particular standard of proof" that the lies told were relevant, as having the character of admissions. It is true that the lies which were, if Mrs Smith was accepted, told to her did not necessarily have that character; the jury might have regarded the lies as merely frivolous. But the jury were not obliged to do so and in my opinion, if the lies were treated as showing a consciousness of guilt they were capable of greatly assisting the Crown case. It was not irrational for the jury to think that it was clear enough that the appellant was at least present at, if not party to, the stabbing; that she must have known, at least in a general way, how it occurred; that her having failed to give any reasonable account of the mode of its occurrence was more consistent with guilt than with innocence; and that her having told blatant lies about the matter was strongly indicative of guilt.
Davies JA has concluded that a jury could not have rejected as a rational inference the possibility that the appellant stabbed the deceased without an intent to kill him or to do him grievous bodily harm. In the whole circumstances of the case it was, in my respectful opinion, well open to the jury to find that the appellant stabbed Chilton in the heart; the location of the stab wound would tend to make a rational juror think that it was caused with the intention of killing Chilton, or at least causing grievous bodily harm to him. I confess to some doubt about the correctness of Davies JA's view that the conviction of murder should not stand, but am not on the whole prepared to dissent from it. I therefore concur in the course his Honour proposes with respect to the disposition of the appeal; I also agree with the sentence Davies JA proposes in respect of the substituted conviction of manslaughter.
REASONS FOR JUDGMENT - McPHERSON J.A.
Judgment delivered the Fourth day of February 1994
Michelle Finn was convicted at a trial in the Supreme Court of murdering Peter Chilton on 2 May 1990. She was sentenced to imprisonment for life. This is her appeal against conviction.
The problem confronting the prosecution both at the trial and on appeal is that, apart from what the appellant said to police and others afterwards, there was no evidence of the events leading up to the death of Chilton. He died of a single knife wound to the heart. Dr Ansford, the government pathologist, said the cause of death was bleeding from that wound,1 which penetrated the left chest travelling backwards and slightly downwards, and across to the right.2 The wound was some 11 cms deep3 and would have required a moderate degree of force to produce it.4 Its dimensions and appearance were such that, according to Dr Ansford, it might have resulted from any one of three possible causes; that is, a deliberate stabbing by someone else; or one that was accidental; or that was self- inflicted.5
Apart from what the appellant told the police and what she said to a Mrs Smith some time later, the only other evidence of consequence at the trial came from a Mr Gregory Eustace. On Wednesday 2 May 1990 he was the control officer on duty at the office of the Queensland Ambulance Service at Ipswich when an emergency 000 call was received at 7.57 a.m. The female caller, who was the appellant, was very distressed and confused in what she said, but was understood by Eustace to be asking for an ambulance to go to 7 Cramp Street, Goodna. Calls received on the emergency number are automatically recorded on a computer voice logging tape at the Ambulance office. At the trial the tape (ex. 36) was played to the jury, and a transcript was provided. The only parts of it that matter are where the female caller tells Eustace that there has been a "slight stabbing", and where the following exchange occurs:
"Female(Heavy breathing) ah ah, he punched ah, a bit of a
punch up ...
Male:Yeah.
Female... and I grabbed the knife."
She was advised by Eustace to control the deceased's bleeding by
putting him on his side and placing a pad or bandage over the
place until the ambulance arrived.
Police from the Goodna police station arrived at 7 Cramp Street at 8.10 a.m. and the ambulance officers came a few minutes later. By the time they arrived or soon afterwards the deceased was dead. Det. Sgt. Richards, who was the first at the scene, found the deceased lying on his right side on the kitchen floor. He was covered with a striped quilt which the appellant said she had put over him. Richards found two rags on the floor containing blood.6 When asked, the appellant said she had used them to wipe up some of the blood on the floor.7 The knife was found in the sink. It also bore signs of blood, but was freshly washed. When asked about it, the appellant said she had washed it.8
The trail of blood led from the kitchen to the hallway, where there were some blood spots on the wall9 and an area of floor from which some of the blood had evidently been wiped. Going from there to the kitchen there were some marks on the floor resembling bloody footprints. The deceased had been wearing socks and rubber-soled jogging shoes. One of the shoes (the left one) was found on the floor of the kitchen near the right hand of the deceased. To deduce how it came to be there would be pure speculation. The sole of the left sock was blood-soaked possibly suggesting that the deceased had stood in his own blood before or as he walked from the hallway to the kitchen.10
The appellant was in a condition of great distress. Richards described her as very agitated. He said she was "jumpy" in her hand actions and her speech; and trembling to such a degree that he put his arm around her shoulders to comfort her.11 She was crying and uttering short gasping breaths, which he described as hyperventilating.12 She appeared to him to be in a state of shock.13 She was desperately seeking assurances that Chilton was still alive; after the truth was explained to her, she started saying, "He can't be dead. He's just having an asthma attack. He'll be all right. Please tell me he's not dead".14 She uttered similar exclamations in the course of the interview that followed. Senior Sgt. Knust, who arrived at the house at about 8.40 a.m. said that the appellant was sobbing and crying, and15 -
"I was going to say she was wailing but she wasn't. It's not wailing out terribly loud, but she certainly was - she was making a long statement of her love for Pete, Peter Chilton, but in a distressed sort of voice ...".
When Richards asked what had happened she replied,16 "I don't know. I don't know whether I did it or not ... he had the knife and then I had the knife. I don't know what happened". The appellant was asked a few more questions at the house, and was then taken to the Goodna police station and interviewed.
The interviewing process commenced at 8.45 a.m. and continued until 12.45 p.m. with a break of about one hour at 10.45 a.m. The appellant was not cautioned before being interviewed and was not told that the interviews were being recorded on a micro-cassette recorder concealed in the room. The transcript of the two tapes that were used to record them occupies some 45 typed pages. The tapes were tendered by the Crown at the trial. The transcripts are exs. 42 and 43. At the end of those interviews she was told that a formal interview would follow next, and that it would be recorded. She said that before that happened she wanted to telephone her solicitor. No further interview took place.
Much of the difficulty in the case seems to have arisen from the fact that throughout the interview conducted at the police station that morning the appellant was still in a state of great distress over what had happened. As the tapes and transcript show, she frequently burst into tears and cried, periodically exclaiming that she could not believe Pete was dead. Her statements about what happened were disjointed, confused, and out of sequence, which makes them difficult to follow. It would have been better if the interview had been deferred until she was in a calmer frame of mind; but by then her lawyer would no doubt have advised her not to speak to the police. In the course of the interview she offered to write down in sequence what she remembered.17 It is a pity the offer was not taken up. The interviewing process was not a success. It was not helped by having two police officers putting questions that were also at times out of sequence.
It is nevertheless possible from the transcript, and in a few instances from the other evidence, to gather something of her personal relations with the deceased, as well as to piece together an impression of some of what happened on the morning in question. She is a woman who at that time was about 50 years old;18 he was about 46.19 Each was married to another but they had separated from their spouses some time before. In May 1990 they had been living together at the house for two years or so.
He at first slept in his caravan in the yard, but more recently had moved to the lounge.20 Her husband Lionel used to come and stay with them at weekends and, according to the appellant, he and the deceased got on well21 together. Subsequent police inquiries evidently disclosed no reason for doubting this claim.
In statements to the police and at the house she said more than once that she loved the deceased, or was falling in love with him.22 Nevertheless she said or implied that, at least at that particular time, their relationship was not a sexual one. She was not having sexual intercourse because she had a painful condition of fibroids of the uterus,23 which was a worry to both of them because she might have to have an operation.24
According to the appellant, the deceased was a softly spoken man25 not given to violence.26 She said he had become really angry on only about three occasions in the time she had known him,27 and no more than a single slap had ever passed between them.28 When they were angry, they communicated by writing notes to one another.29 The deceased had, however, a tendency to become depressed.30 He was a heavy smoker and suffered from bouts of asthma.31 As well as doing cleaning work at the Goodna police station, he worked at the crematorium,32 and what he saw there sometimes upset him.33 Not long before his death he had been complaining that no one in his family seemed to care about him.34 He was a New Zealander by origin and had had a birthday on 23 April; but neither his mother nor any of his children had written to him.35 The appellant tried to cheer him up, but her own ailment was troubling her at the time, and she did not feel much like talking to him.36 She thought this might have added to his unhappy state of mind.37
The appellant said that on 2 May 1990 her day began when she woke up at about 6 a.m. She got up and put the electric jug on, and also switched on the television to get the news at 7.0038 or it may have been 7.30 a.m. When the deceased got up he was, as she described him, "cranky",39 and kept saying he did not want to go to work at the crematorium that day.40 In the interview she was asked if there had been an argument between them. Her reply was:41
"... no, no, we didn't argue. He was just in a really cranky mood. He said no, you didn't make me coffee, and I said, I'm sorry, I forgot ... I'm sore and ... he said better get you to the doctors again, and I said no. And that's about the extent of it, but he did ... he was getting cranky as the ... time went on."
The appellant first saw him with the knife when he was in the kitchen buttering sandwiches for "dinner".42 She said he often took a knife to peel something for his lunch,43 and had lost a smaller one that way. He said something to her about coming home at dinner time, but the appellant said "don't bother, I'll be right".44 She recalled that he made a coffee, but did not drink it, and then made another coffee.45 He kept saying he didn't want to go to work;46 she told him he had to go to work, adding "you only got one week that you work".47 He had various debts and bills he had to pay.
She was unable or unwilling to recall the details of what happened next, but she thought that the deceased took the knife to the second bedroom,48 as she imagined to put it in his bag to peel an apple or something for lunch,49 which was what he often did.50 Something then happened which she did not precisely recall. She remembered being in the lounge and that he was angry and threw a coke bottle at the wall.51 Reminded several times of what she had said during her telephone call to the ambulance officer, she told the police there never was any "punch up".52 He had not punched her at all.53 The only time she had raised her voice was when she said "don't throw the bloody coke bottle".54 That was in the lounge. It was a big plastic bottle.55 She thought it was full;56 but afterwards the police found only an empty coca cola bottle in the lounge. After throwing it the deceased had picked the bottle up again; she thought he put it back on the trunk near the telephone.57
The hallway leads past the lounge. A conversation of some kind took place in the hallway.58 She said something to him about his going to work, and turned away from him. That was when he grabbed her by the wrist.59 He had the knife in his hand then.60 There was a struggle for possession of it.61 She tried to get it out of his hands but he started twisting or hurting her wrist62 and she just let go.63 She fell over backwards.64 He remained standing65 and just looked at her, making no move to help her up.66 She rolled over and got up,67 and, saying "Oh, go to work, Pete please", walked (or ran) to the kitchen.68
In the course of the police interview she was asked several times about what had happened in the hallway. On each occasion she repeated in similar but not identical terms what she had said. For example:69
"FinnWell, I was tryin' to take the knife out of his ha hand, and he, and, he got such a tight grip on me bloody hand so, and I pulled away from him.
KnustAnd what happened then.
FinnWell, I fell over, that's when ah ... KearnanDid you fall forward or backwards? FinnBackwards."
This she said happened in the hallway,70 where she later found the big pool of blood which she wiped up.71 In another account of it, when asked whether she knew where the knife was, she said:72
"I didn't see it until he reached, as I said I tried, it was, somehow there was a knife. I tried to ca, grab it off him and because he held my hand, wrist so, so tight, I let go and pulled away. I don't know whether I had it or he had it then. I know I just ran into the kitchen, and then I, when I went to, I don't know why I went in there, probably go out the back door. I don't know. I walked from the kitchen, somewhere in the kitchen and I came out, and that's when I saw him walkin' through the hallway and he was and I'm trying to remember what he said, I know it's important. Ah god, I can't remember."
On another occasion she said:73
"... All I know is I was tryin' to get it out of his hands, and that's when he hurt my wrist and I let go."
When asked whether the deceased was stabbed during the struggle,
her response was:74
"Well I didn't, I didn't see that. I mean if I, if I, I
don't even know, all I know is that, ah, he was just, he had the knife and I tried to take it away from him.
I didn't even think of him killin' himself. I just
tried to get the knife away from him."
The end came in the kitchen. After the incident in the
hallway she went into the kitchen through to the back door, and then came out again.75 It was then that she saw the deceased walking or moving towards her76 through the hallway.77 He was doubled over78 or bent over,79 and she thought he was going to do "his thing right then".80 Apparently, this was how he appeared when having an asthma attack.[81] She said:82
"When he came through the, I didn't see the blood straight away. I think he was double, sort of doubled over."
He fell on the floor of the kitchen.83 She thought she heard him "thump". It is possible his shoe came off then. He was on the floor of the kitchen when she saw the blood.84 The knife was on the floor, and she picked it up "in disgust"85 and flung it into the sink away from him,86 "so he wouldn't hurt himself any more".87
It is not quite clear, but it seems to have been then rather than later that she made the telephone call to the Ambulance office that was timed at 7.57 a.m. The ambulance officer told her to find where the blood was coming from and stop the bleeding,88 so she wiped his chest with a sponge to see where the wound was.89 She put a "big blanket or something" on him to keep him warm, and then just held him in her arms:90
"... and I said to him what have you done and he says I am at peace now and I said peace of what, I didn't know what he was getting on about, I said aren't you going to work, I said you're talking stupid. Ah, I said, ah the Ambulance is coming, you'll be right. He just said I love you, and his eyes curled up, and I ra, went, couldn't even remember 000 again ..."
She had blood all over her hands from trying to find or stop the wound, and she washed or wiped her hands.91 So far as one can make out, it was probably then that she also washed the knife. Afterwards the police found bloodstained items of female attire in the main bedroom which she occupied.92 Apparently she changed out of it after holding the deceased in her arms on the kitchen floor. It seems to have been the main bedroom from which she got the blanket used to cover the deceased, which was described by one of the witnesses as a striped doona.
The only other evidence that bore on the matter came from the witness Mrs Smith. She was a sister-in-law of the deceased, being the sister of his wife Irene. Mrs Smith had a conversation with the appellant at the funeral, which took place on 8 May 1990 at the crematorium at Mt. Gravatt. The appellant approached Mrs Smith, and said to her "I loved Peter, I really did". Then she said "I know you didn't have much time for your sister Iris". Mrs Smith responded by saying that that had nothing to do with it. The appellant said "I swear to you I did not do it ... I tried to save him but I couldn't". Mrs Smith said "I don't believe you". At the end of this conversation, the appellant said "I would like to talk to you later".
Five days later on 13 May 1990, Mrs Smith rang the appellant at her home. The appellant explained that she should not be talking to Mrs Smith. She said "My lawyer has said I'm not allowed to talk to you, the police, or anyone without him being there". Then she said "I know you want to know what happened. I should not be talking to you but it was suicide". To that Mrs Smith responded, "Suicide, you are joking". The appellant said it was true; that he did it because he hated working at the crematorium; and was unhappy burning bodies. There was some discussion about why he didn't get another job; and the appellant repeated that she really loved him. To this Mrs Smith's response was "bullshit".
Mrs Smith rang the appellant again on 20 May. On this occasion the appellant said "I'm not allowed to talk to you, you know that". Mrs Smith said the deceased's family in New Zealand really needed to know what happened. The appellant said: "I don't care if they do need to know; anyway, I wasn't there". Mrs Smith said, "Where were you". The appellant said "I shouldn't tell you", and, when pressed, said "I was hanging out the washing". Mrs Smith said she didn't believe her, and the appellant said "I don't care if you don't believe me". Mrs Smith said "Why should I believe you? You've told so many different stories". The appellant asked "What different stories?". The conversation ended soon after that.
Mrs Smith rang yet again on 25 May 1990 and said she wanted to know what had happened to Pete. On this occasion, the appellant said she wasn't even at home when it happened. When Mrs Smith remarked that that wasn't what she had told her last time, the appellant said it was what she was telling her now. She said "I was out walking". Mrs Smith asked "Is that the truth this time?". The appellant said it was the truth, to which Mrs Smith responded, "I don't believe you". The appellant said "I don't care if you don't believe me. I don't have to listen to you". There was some further exchange about this, ending with the appellant saying "From now on you will have to talk to my lawyer".
This was essentially the only evidence tendered by the Crown at the trial. The appellant herself did not give evidence. The only ground of appeal argued on her behalf was that the verdict of guilty of murder was, having regard to the evidence, unsafe and unsatisfactory. Other grounds contained in the notice of appeal, complaining of the trial judge's failure to exclude certain evidence and of his directions on other matters, were not pursued.
The substance of the appeal is that the evidence presented at the trial did not justify a verdict against the appellant for either murder or manslaughter. There is, to my mind, no doubt that, in relation to murder, the submission is correct. For the prosecution to succeed on that charge it was necessary to show not only that the appellant had caused the death of Chilton, but also that she had done so with the intention of killing him or at least of causing him grievous bodily harm. The only evidence available for this purpose consisted of the wound in the body; the appearance of the premises at 7 Cramp Street when the police arrived at 8.10 a.m. together with the things they found there; and what the appellant told the police while there and again later in the interview, together with what she said to Mrs Smith.
Leaving aside the hypothesis that in what she said the appellant had been lying, there was plainly no evidence capable of establishing the necessary intention. The character of the wound itself was, according to what the government pathologist said, consistent with any one of three forms of homicide - murder, manslaughter, or suicide. There was nothing at all to suggest that the appellant had any motive for killing him. She repeatedly denied having done so. Equally, there was no basis in what she told the police for concluding that at any time she possessed an intention to kill or even to hurt him.
In their questioning of the appellant, the interviewing police officers Knust and Kearney naturally returned more than once, and in various different ways, to the question of what had happened. She admitted she had handled or touched the knife, as when she tried to pull it away from him to prevent him from hurting himself.93 Some of her statements to that effect are set out in the foregoing extracts from the interview. When asked directly whether she had "put the knife in him", her response was:94
"Well not like that, no. Ah, no, I wouldn't do that
(crying).
...
I couldn't do that
...
Just tried to pull it away from him."
Speaking of the knife wound in his chest she also said:95
"Well, I didn't put it in there. I know that. I know I
was struggling with him."
Later she repeated that she couldn't and didn't stab him.96 She said she had no reason to do so.97
If, as the evidence shows, there was nothing to establish the requisite intent, it remains a possibility that she killed him unintentionally. Such a conclusion would have to compete with another hypothesis open on the evidence that he may have stabbed himself deliberately (i.e. suicidally) or accidentally.
In his unhappy frame of mind at the time, suicide should not be too readily discarded as an explanation; but it is noteworthy that at the time the appellant herself was not disposed to think of the matter in those terms. She did not think he had "really" said anything about taking his own life.98 "I didn't even think of him killin' himself", she said, "I just tried to get the knife away from him".99 In answer to a direct question whether the deceased had himself put the knife in his chest, the appellant answered that she did not see it happen.100 It was not until 13 May that she told Mrs Smith on the telephone that "it was suicide".
The possibility also exists, although it has not received much attention in the course of the proceedings, that the deceased stabbed himself accidentally. That would, of course, completely exonerate the appellant from criminal responsibility for his death. Apart from that, the only other identifiable explanation for what happened is that the appellant caused or contributed to Chilton's death in circumstances constituting the crime of manslaughter. Whether it amounted to manslaughter would depend on how the stabbing happened. If in attempting to take the knife from him the appellant accidentally stabbed him, the offence would, on the authorities as they now stand, not constitute manslaughter unless in what she did there was a degree of recklessness involving "grave moral guilt" : see R. v. Hodgetts and Jackson [1990] 1 Qd.R. 456. That assumes that s.289 has a bearing on the matter, which would be so only if the appellant were found to have had "in her charge or under her control" something likely to endanger life, health or safety. A sharp knife would satisfy that description; but what the evidence does not show is whether it was in the appellant's charge or under her control at the time the fatal stabbing took place.
Of the various hypotheses available to explain how Chilton met his death, an accident that happened in the course of the struggle for the knife is perhaps the most plausible. There is a response from her in the interview that may be thought to provide some support for a theory that this is how the stabbing happened. The appellant said:101
"... he was round the corner somewhere there, and I'd just
come out of the
That's the hall. I said something to him about he'd better go to work, you know, and I went to turn this way because the, that's where the bathroom was. I remember turning that way and that was when he grabbed me. And he grabbed my wrist there and was twisting and he was going, sort of, limp, weak, go. lean forward or something like that. I can only just remember it, and I went like that and I just flung my hand and I said 'Oh go to work Pete, please' and I went down the hall, and that was, when I went down the hall to look back ...
Yeah, he was still bending over and I thought he was just gonna do his thing right then, you know."
The reference to his going "limp, weak" looks significant; it in fact may not be so. In the interview she tended in relating events to compress a series of incidents into a single happening. The result is that one cannot always tell whether she was referring to the incident in the hallway where the struggle over the knife took place, or to what happened in the kitchen after he was stabbed.
Assuming, however, that it was the hallway struggle she was describing, it is a rational and a possible explanation of what happened that, when she was trying to pull the knife away from him he twisted or hurt her wrist and she let go, with the result that he accidentally stabbed himself.102 The appellant seems to have inclined to this theory of the matter. When asked whether she could remember how the knife had got into his chest, her reply was:103
"The only thing, the only thing I can think of, was when we were struggling and I let go. Oh why did I wipe it. I don't know. Bloody hell. I just can't. Drew, I am trying to remember ...."
Elsewhere she said:104
"I don't know, I was trying to pull it away from him and
let go, it went in, I don't know."
If that is in fact what happened, it is difficult to see how any criminal responsibility could attach to her for the ensuing death. Unless she had charge or control of the knife so as to attract s.289, it would be a clear case for the application of either the first or the second limb of s.23. The onus would be on the Crown to prove beyond reasonable doubt that the killing had not happened independently of the exercise of her will, and that it was not an event that had occurred by accident : see R. v. van den Bemd (C.A. 236/1992).
It is in any event quite impossible from the evidence available at the trial logically to fix upon any one of the foregoing hypotheses and insist that it is the only reasonable explanation of how the deceased met his death. For the Crown to maintain the murder verdict, or to contend for a manslaughter conviction, it must as the essential first step establish that the only rational hypothesis is that the deceased died through some act of the appellant. See Peacock v. The King (1911) 13 C.L.R. 619, 634; R. v. Turnbull (1920) 20 S.R. (N.S.W.) 592, 594; R. v. Ross [1955] St.R.Qd. 48, 79-80. If authority be needed for the converse proposition, those decisions also show that a verdict of acquittal is called for if on the evidence there is any rational hypothesis consistent with innocence on the part of the accused. Plomp v. The Queen (1963) 110 C.L.R. 234 is plainly distinguishable because there was very cogent evidence of a powerful motive for the killing. Here there was nothing to suggest any motive of that kind on the part of the appellant. The present case more closely resembles R. v. Sadler (1911) 14 Gaz.L.R. 117, 121, where four judges of the New Zealand Court of Appeal adopted and applied the following passage from Wills on Circumstantial Evidence (at 291):
"In the proof of criminal homicide the true cause of the death must be clearly established; and the possibility of accounting for the event by self-inflicted violence, accident, or natural cause excluded; and only when it is proved that no other hypothesis will explain all the conditions of the case can it be safely and justly concluded that it has been caused by intentional injury"
The Court went on to say (at 121):
"The proof of the two facts - the corpus delicti and the guilt of the accused - may be established wholly or in part by the same evidence; but the first must be established before the other can be considered."
Here the difficulty remains that, apart from what the appellant said, there is no evidence to establish how the deceased came to sustain the stab wound that caused his death; without it there is no corpus delicti, as that expression is used by Wills, as meaning the criminality of the death : cf. Wigmore on Evidence vol. 7, §2072, at 525 (Chadbourne rev. ed.). Confronted by that difficulty, the prosecution turns, as it nowadays so often does, to the theory that the accused manifested consciousness of her guilt by telling lies about what happened.
In practical terms, what that seems to mean in a case like this is that, having examined the accused's statements once in search of damaging admissions of guilt, it is necessary to scrutinise them a second time with the idea in mind that any exculpatory matter they contain may really be evidence not of her innocence but of carefully concealed guilt. It is obviously not safe to decide the appellant's guilt of murder or manslaughter by combing through her statements in that way. In fact the Crown did not attempt to pick out of the account she gave in the interview anything, either general or particular, that was said to demonstrate that the appellant was not telling the truth. Disjointed though her account may have been, there is nothing in what she said that is obviously or inherently improbable. Instead, the real contention underlying the prosecution submissions can only be that the appellant must have known what happened because she was in the house when the deceased was stabbed; and that, in saying she does not know and in failing to give evidence about it, she must be guilty of murder, or at the very least manslaughter. Moreover, so the argument would run, the inference that she was responsible for the death in some way is strengthened by her admission that she handled the fatal weapon and by the fact that she told lies after the event.
It is as well to begin with the evidence that she handled the knife, and that she told lies, before passing to the wider question. She was asked more than once how often she had touched the knife. Her answer was two or three times.105 Once was when she was struggling to keep it from the appellant in the hallway. Another was when she picked it up and flung it into the sink; she was not sure she had not first thrown or kicked it out of the way,106 and then flung it into the sink, but the difference matters little. A third time must have been when she washed it. There does not appear to be a rational explanation of why she washed the knife. She does not herself appear to have known why she did so, although it seems to have happened at the time she wiped or washed her hands.107 When asked about it by Richards after he arrived she agreed she had washed it, explaining when asked that she had done so because she had "panicked".108 Another possible explanation is that she washed it simply because it was there next to her when she washed her hands. On the worst possible view of it for her, she did it because it bore her fingerprints, which she realised would give her away. However, if she was thinking as rationally as that, it might be supposed that she would have wiped or smudged it and then left it on the floor near the body instead of putting it on the sink. On any view of her action in this respect, it is scarcely so incriminating as to be incapable of innocent interpretation. People do not always act rationally in times of crisis.
That the knife may have been washed for some irrational reason rather than to conceal evidence of guilt tends to be borne out by the appellant's comparable action in relation to the blood on the floor. She mopped up the blood, or some of it, on the kitchen floor109 and also in the hallway.110 Her action in doing so was related in time to her telephoning the ambulance (which was when she first saw that pool of blood111), or perhaps when she was getting the quilt after speaking to the Ambulance officer on the telephone.112 She said she did not want to slip in the blood in the hallway when running to get something to put over him.113 If she was aiming to conceal her part in the stabbing, it is difficult to see what was gained by wiping the blood on the floor in the hallway. There was nothing about her clothing or her person to indicate she ever stood in the blood which might have been used to suggest she was present when the deceased was stabbed. It was she who informed police there had been a large pool of blood in the hallway. Afterwards she was puzzled at her action in mopping it up. In the course of the interview she said:114
"I don't even know why, I'm not a tidy person, why. The only thing I can think of, I've wiped the floor, so I when I went go back in I wouldn't slip. I dunno why I did that. You always do something stupid."
The other evidence that is put against her as incriminatory is the statements which are said to be lies. These consist, first, of what she said to Gregory Eustace when she called the Ambulance office at 7.57 a.m. She told him there had been a "slight stabbing". Knust, who later listened to the tape, thought it was a "knife stabbing". In any event, it was an impression she could readily have gained from seeing the knife and the blood, without having personally witnessed the stabbing.115 The other statement that is said to be difficult to explain was that there had been a "punch up". But in common usage the expression does not always denote fisticuffs. It is often used figuratively to describe a "fierce or noisy argument" (O.E.D.) involving no physical violence. It is nevertheless perhaps the strongest single item of evidence suggesting that some form of angry dispute or struggle took place between the appellant or the deceased. In that respect, it differs little from what she later told the police had happened.
This leaves for consideration the second series of statements that are said to be evidence of guiltiness on the part of the appellant. They are what she said to Mrs Smith. At the funeral she told Mrs Smith that the deceased's death was suicide brought about by his work at the crematorium, where he was unhappy burning bodies. An attitude like that to such an occupation is not incomprehensible. The deceased had, she claimed, recently been much affected by seeing a baby being cremated. In any event, the appellant's statement that it was suicide bears the marks of ex post facto rationalisation; it would have afforded an explanation less disturbing to her peace of mind than a gnawing suspicion that Chilton might have been stabbed when she let go of the knife. Even if it was false, her assertion of a suicide is scarcely capable of being considered as consistent only with her having murdered him.
The lies she told Mrs Smith when the latter telephoned on 13 and 20 May were, and it may reasonably be supposed were intended to be, readily recognisable as such. It was obviously far fetched to say as the appellant did that she was not there at the time of the fatal wounding but was hanging out the washing; or that she was not at home but was out walking. However, only someone already more than half persuaded of her guilt would view her statements to Mrs Smith as exposing a guilty conscience. It was, after all, the appellant who had made the telephone call from the house summoning the ambulance to 7 Cramp Street, where police saw and questioned her. They were perfectly well aware from what she told them then and later that she had been in the house at the time. She never suggested to them that she had ever been outside it that morning. It is difficult to suppose that when she spoke to Mrs Smith the appellant had entirely forgotten what she had told the police and was now bent on fabricating an alibi or an entirely new account of events in order to divert suspicion away from her.
Mrs Smith, it may be noticed, is one of those uncommon
individuals who make written notes of ordinary conversations,
which she did on the occasions when she spoke to the appellant.
It is perhaps not unreasonable to suppose that it was someone
else who suggested that she make the calls and that she keep
records of what was said. Even if the appellant herself may not
have fully appreciated why Mrs Smith persisted in telephoning to
ask questions, there is every reason to suppose that her
solicitor did, which is why he gave her the advice he did. It
is, however, at least a plausible hypothesis that the appellant
had good reason to suspect why and at whose suggestion she was
being questioned by Mrs Smith and that she responded
accordingly. It would not have been her first experience of
being questioned without being cautioned.
It is in any event a far cry from the facts of the many cases in which we have become accustomed to prosecution claims of lies amounting to evidence of guilt. The proper approach in evaluating such evidence has very recently been examined by the High Court in Edwards v. The Queen (Nov. 17, 1993). As Deane, Dawson and Gaudron JJ. explained in that case, it is not every lie told by an accused that provides evidence probative of guilt. It is, their Honours continued -
"only if the accused is telling a lie because he perceives that the truth is inconsistent with his innocence that the telling of the lie may constitute evidence against him. In other words, in telling the lie the accused must be acting as if he were guilty. It must be a lie which an innocent person would not tell ...."
The same underlying thought was expressed by Brennan J. in his reasons in that case when he said that the relevant inference available from lying is not that the accused realised his guilt, but that in making the statement in question "he was unable to account innocently" for the evidence against him.
It is simply not possible to view the appellant's statements to Mrs Smith in this way. It was not that she was unable to account innocently for what had taken place; she had very soon after the event given a lengthy account of it to the police. It was only because the tall stories she told Mrs Smith were so plainly at odds with what the appellant had previously said to the police that she could risk telling them. What she said to Mrs Smith is exactly what an innocent person might say in order to get rid of a persistent and unwanted questioner. The success of her tactic can be judged from the fact that after three efforts at extracting information, Mrs Smith abandoned the attempt.
It remains to consider the relevance of the fact that there was no sworn evidence from the appellant owing to her failure to testify at the trial. The absence of such evidence "cannot fill any gaps in the prosecution case; it cannot be used as a make-weight": Weissensteiner v. The Queen (Nov. 17, 1993), per Mason C.J., Deane, Dawson JJ. This is not a case in which the appellant can be seen to have failed to place before the court -"evidence of facts within ... her knowledge, which, if they exist at all, would explain or contradict the evidence against that party" (ibid).
There was no evidence of any kind against her apart from the account she gave to the police of the only facts she said were within her knowledge. That she knew something more which she deliberately withheld may be a reasonable hypothesis; but it is not the only reasonable hypothesis. In what she said she may equally well have been telling the truth. It was an explanation or account she gave as soon as she was called on to do so immediately after the death of Chilton on 2 May 1990. The fact that she did not repeat it on oath at trial is in law no basis for inferring guilt, or even suspicion of guilt, against her. Her position corresponds to that spoken of by Abbott C.J. in the passage from R. v. Burdett (1820) 4 B. & Ald. 95, 161-163; 106 E.R. 873, 898, which was approved by the High Court in Weissensteiner v. The Queen:
"No person is required to explain or contradict until enough has been proved to warrant a reasonable and just conclusion against him in the absence of explanation or contradiction."
In Weissensteiner, Mason C.J., Deane and Dawson JJ. also
said that:
"In determining whether the prosecution has satisfied the
standard of proof to the requisite degree, it is relevant to assess the prosecution case on the footing that the accused has not offered evidence of any hypothesis or explanation which is consistent with innocence."
If in adopting this approach here all of her statements were excluded, the case would become one in which the available evidence proved that a person was stabbed to death in a house where the only other individual present at the time afterwards gave no explanation of how it happened. Under those conditions, there would simply be no evidence of what had happened to bring about the death, and nothing at all to identify or associate the appellant with the act of stabbing. Here apart from her account of events, nothing more is or can be known about the matter than if the appellant had woken up on 2 May 1990 at the very moment at which Peter Chilton collapsed bleeding on the floor of the kitchen.
In those circumstances, every hypothesis that has already been canvassed here - murder, suicide, manslaughter, and accidental non-culpable homicide arising from the act of the appellant or of the deceased himself - would be equally open. It would remain impossible, just as it is now, to be satisfied beyond reasonable doubt that the appellant had done anything that caused or contributed to the death of Chilton. Even if that initial difficulty were overcome, it would still not be possible to conclude beyond reasonable doubt that the appellant had caused his death with the intention of killing or inflicting grievous bodily harm. Indeed, for that result to be reached on the basis only of a finding that the death was caused by the appellant, who failed to give evidence about it, would be to resurrect in a new form the presumption discredited in Woolmington v. D.P.P. [1935] A.C. 462 that every homicide is murder until the contrary appears. As at common law, so under the Criminal Code in Queensland, it is for the prosecution to prove the necessary intent for murder and to exclude the possibility that the killing was involuntary or accidental : see R. v. Mullen (1938) 59 C.L.R. 124 affirming Mullen v. R. [1938] St.R.Qd 97 (in which Woolmington v. D.P.P. was adopted and R. v. Fuzzle Ahmed [1929] St.R.Qd. 222. overruled).
It follows from all I have said that there was in this case no safe basis for the verdict of guilty of murder returned by the jury, or for substituting a verdict of manslaughter in its place. The jury must have misunderstood or failed to heed the trial judge's directions on the onus of proof.
The appeal should be allowed and the conviction and verdict set aside. In view of what has been said here about the evidence, there should not be a new trial. Instead judgment of acquittal should be entered.
| R | EASONS FOR JUDGMENT - DAVIES J.A. |
Judgment delivered 04/02/1994
The appellant was convicted on 22 September last of the murder of William Peter Chilton on 2 May 1990. Some time between 7.30 a.m. and 7.57 a.m. on that day the deceased was stabbed in the chest with a steak knife, the wound penetrating his heart. The knife had entered at a slight downwards angle. The stabbing and his death occurred in a house in Goodna which he shared with the appellant. They were, at the time, the only occupants of the house. Although they may not have been co-habiting at the time, the appellant told the police that the deceased loved her and she was falling in love with him. Each was still married to another at the time and the appellant's husband still occasionally visited and stayed in the house on weekends.
The appellant appeals against that conviction. Her notice of appeal includes as grounds the failure of the learned trial judge to exclude from evidence taped conversations between her and an ambulance officer and between her and police officers. However, these grounds were abandoned by her counsel in this Court and I shall not refer to them again. The other two grounds of appeal were that a miscarriage of justice occurred by the learned trial judge's direction to the jury concerning consciousness of guilt and the use they could make of statements by the appellant as affording evidence of consciousness of guilt; and that the verdict was unsafe and unsatisfactory. In argument before this Court, however, no criticism was directed to the learned trial judge's directions. Rather it was submitted that the jury were not entitled to have regard to certain statements of the appellant as lies showing a consciousness of guilt and that, for this reason amongst others, the verdict was unsafe and unsatisfactory.
Notwithstanding statements later made by the appellant to the contrary, to which I shall refer later, there can be little doubt that the appellant was present in the house and in the deceased's presence at the time of the stabbing. Her recorded telephone conversation with the ambulance officer at 7.57 a.m. on that day and her two conversations with police officers later that morning contained convincing admissions of that. This then left as possibilities that the deceased committed suicide, that he died by accident, manslaughter or murder. Each of these possibilities was put fairly to the jury by the learned trial judge and there is no criticism of his summing up.
When the police arrived at the house at 8.10 a.m. the deceased was lying dead on the kitchen floor. He was fully dressed except that he had on only one shoe, his right one. His left shoe was on the floor only inches from his right hand. A trail of blood was visible from the body back along the hallway of the house to a point opposite the second bedroom, where there was evidence of blood having been cleaned off the floor. The knife identified by the appellant as that used in the stabbing was on the drainer of the sink showing signs of having been recently washed. The appellant admitted that before the police arrived she had washed the knife and had wiped the blood from the floor of the hallway. She had also apparently changed out of clothing soaked with blood consistent with that of the deceased, such clothing being later found in a bedroom of the house. Her explanation to the police for cleaning the knife and floor was that she panicked. She was never apparently asked for an explanation for why she changed out of her blood-soaked clothing. However, the existence of the deceased's blood on her clothing may have been consistent with her activities after the stabbing.
In her telephone conversation with the ambulance officer which, as I have said, was recorded at 7.57 a.m., when asked what happened, she said: "... slight stabbing ...". When pressed further by the ambulance officer she said: "He punched, ah, a bit of a punch up ... and I grabbed the knife."
The appellant was then interviewed by a police officer, Mr Richards, in the house some time between 8.10 a.m. and 8.30 a.m.
He asked her what had happened and she replied: "I don't know. I don't know whether I did it or not." When asked what she
meant by that she said: "Well, he had the knife and then I had the knife. I don't know what happened." She then admitted washing the knife and cleaning the floor in the hall and gave panic as her explanation for both. When asked where the knife came from she said: "I don't know. He had it, then I had it. I don't know what happened." When asked why she had the knife, she replied: "I don't know, I can't remember." She did not, at any time during her conversations with Mr Richards mention the deceased punching or a "punch up", nor was she asked whether any punches had been thrown, no doubt because Mr Richards did not then know of the contents of the taped conversation with the ambulance officer. Although during these conversations the appellant mentioned that the deceased did not want to go to work that day and that he had been really depressed lately, the possibility that he was attempting to stab himself was never raised.
Later that morning the appellant was interviewed at the police station by a police officer, Mr Knust, in company with another officer. That interview was substantially tape recorded. The jury had the advantage of hearing that recording and reading a transcript of it. I have also heard it and studied the transcript. This rather long interview contains a number of confusing statements and apparent inconsistencies both internal and with her earlier statements.
There is no doubt that both during the conversation with Mr Richards at the house and during the interview at the police station the appellant was exhibiting obvious signs of agitation and distress. However, two competing views were put to the jury as to the overall impression which they would have received from listening to the tapes on which the interview at the police station was recorded. For the appellant it was submitted that they indicated genuine distress at the innocent loss of a loved one and confusion caused by the shock of what had occurred. For the Crown it was submitted that they indicated maudlin self- pity, combined with a degree of cunning and that the inconsistencies and claims of memory lapses might be attributed to difficulties which the appellant had in concocting, on the spot, a coherent explanation of the events of the morning which would exonerate her from blame. Subject to some specific instances to which I shall shortly refer, it is unnecessary to discuss those inconsistencies in any detail. It is sufficient to say that either view was plainly open.
It was during the course of this interview that the possibility of suicide, or attempted or threatened suicide and accidental stabbing, first emerged. On a number of occasions she said that the deceased was cranky and upset that morning. She said that he did not want to go to work; he complained that the appellant had not talked to him for the last two or three days; he said words to the effect that it was not worth it, which, at the time, the appellant took to refer to the car which they had just bought
which was, it appears, a bad buy; he threw a full plastic Coke
bottle across the kitchen.
When asked just exactly what the circumstances were, the
appellant said:
"He kept grabbing, he kept pointing the knife all the time
and I wasn't strong enough this morning, it nearly broke my wrist and I pulled away. Said what are you doin', what are you doing to yourself and he just said I don't care anymore and I went into the, the kitchen and when I turned round he, he was bleeding and I thought Oh God Almighty, so I grabbed the phone there, I didn't, couldn't, didn't know what to do, he was bleeding."
She was then asked how the knife got into his chest and she replied: "I don't know, I was trying to pull it away from him and let go, it went in, I don't know."
When asked further about trying to pull the knife from him, she
said:
"Well I was tryin' to take the knife out of his ha, hand
and he, and, and he got such a tight grip on me bloody
hand so, and I pulled away from him."
She then said, in answer to further questions, that she fell over backwards and he just walked away from her. This was in the hallway. She added:
"You know, how you're tryin' to take something off someone ... I don't know whether he did it then or whether I did it. ... All I know is I was tryin' to stop him from hurting himself. He, he was just rattling on, he was so angry."
Later in the conversation she repeated that she tried to grab the knife from him and because he held her wrist so tightly she let go and pulled away. She said she did not know whether she had the knife or he had it then. She later repeated this, in slightly different words, several times during the course of the interview.
The explanation proffered in these passages appears to be that the deceased had the knife in his hand, there was a struggle between them in which the appellant tried to get the knife away from him in order to prevent him from committing suicide or at least injuring himself, he gripped her tightly by the wrist causing her to release her grip, and it was either during the struggle or after she had released her grip on the knife that it went into his chest. However, later in the interview she said:
"That's the hall. I said something to him about he'd
better go to work, you know, and I went to turn this
way because that's the, that's where the bathroom was.
I remember turning that way and that's when he
grabbed me. And he grabbed my wrist there and he was
twisting it and he was going, sort of, limp, weak, go,
lean forward, or something like that. I can only just
remember it and I went like that and I just flung my
hand and I said oh go to work Pete please and I went
down the hall and that was, when I went down the hall
to look back ..."
She went on to say that down the hall meant towards the kitchen (the bathroom door was in the same direction) and that when she looked back he was still bending over. In this passage his grabbing her by the wrist seems to be unrelated to any attempt by her to remove the knife from his grasp. However, she was reminded that she previously said that he grabbed her because she tried to take the knife from him and she appeared then to revert to something like her previous explanation.
During this interview it was also put to her that she told the ambulance man that there had been a punch up. Although she said she could not remember what she had said to the ambulance man, she said that there was no punch up.
Other evidence which the jury were entitled to think involved a significant inconsistency in the appellant's version of events at the time of the interview was as to whether or not she removed the knife from the deceased's chest. During that interview her version was to the effect that she picked up the knife from the floor and that she did not even realise where the wound was until she cleaned away some of the blood. However, on the occasion that the female police officer accompanied her to the toilet, she showed the officer her wrist and said: "I nearly broke my wrist trying to get the knife out of Pete." And during a later break in the interview, she said to the same officer: "I tried and tried so hard to get that knife out of Peter but it doesn't matter now." It is, of course, possible, as defence counsel put to the police officer, that the appellant was referring, not to the removal of the knife from the wound, but to her attempt to remove it from his hand. However, they were entitled to accept that the form of words, to which the police officer adhered, was only consistent with the former.
There is one statement during the course of this interview which, contrary to her other statements in it, is, at least on one view, consistent with her having at least raised her voice that morning. Although no accusation appears to have been made that she was shouting, she said: "What can the people think, I'm yelling when I'm not. He was almost half deaf, and I had to talk that much louder."
During the interview, in explaining why she didn't want to talk to him that morning, the appellant said: "And I didn't want to talk to him because, I was in pain, and I didn't wanna have to worry about it again, he was worry, ... ." And when the female police officer was taking her to the toilet on one occasion, the officer heard her mumble to herself: "Oh Pete, why do I get so cranky?" Although these statements could not themselves support an inference that the appellant stabbed the deceased intending either to kill him or to cause him grievous bodily harm, they nevertheless tend to show that the appellant was irritated with the deceased, and are therefore consistent with the view that she stabbed him with such an intention, should this view be supported by the other evidence in the case.
It appears from what the appellant said in several parts of the interview that, that morning, shortly prior to his death, the deceased had made sandwiches for his lunch that day. The jury were entitled to think that this rendered it unlikely that the deceased, only a few minutes later, intended to commit suicide.
The only other evidence against the appellant came from a Mrs Smith, the deceased's sister-in-law. She gave evidence of four conversations which she had with the appellant, the first of them about a week after the death of the deceased and the others extending over a period of about two weeks after that. In those conversations, according to Mrs Smith, the appellant gave four different versions of either the cause of death of the deceased or her involvement in it. In the first, she said that the deceased had slipped and she had tried to save him. In the second, she had said it was suicide. In each of the third and fourth conversations she said that she was not present in the house; in one saying that she was outside hanging washing on the line and in the other saying that she was going for a walk. Only the second of them was consistent with any prior version. I have already said that no criticism was directed to the learned trial judge's directions. In particular, no criticism was made of his Honour's careful, and in my view correct, direction as to the use that the jury might make of a conclusion, were they to reach it, that the appellant had told lies. Mrs Smith's evidence was plainly admissible. It cannot be shown that the jury made any improper use of it.
The appellant did not give or call any evidence.
In my view a reasonable jury properly instructed could have
concluded from the above evidence, in the absence of
contradictory evidence from the appellant, as follows:
1.From her own admissions, that the appellant was cranky with
the deceased that morning and that there was an argument
with raised voices on both sides.
2.From the evidence of the trail of blood and the appellant's own statements, that the stabbing occurred in the hallway opposite the entrance to the second bedroom.
3.That at the time of the stabbing the deceased had his right shoe on and his left shoe held in his right hand. It is difficult otherwise to explain the presence in the kitchen after his death of that shoe near his right hand.
4.That the appellant intentionally stabbed the deceased, an inference which they could have drawn principally from the following evidence: the appellant's statements during her telephone call to the ambulance (which was made at a time when she would have been less guarded in her version of events than at a later stage); the fact that the deceased was holding his left shoe in his right hand at the time he was stabbed, rendering the appellant's version of an attempt by the deceased to harm himself with the knife, a struggle and the consequent possibility of accidental stabbing less likely; the inconsistencies in the various descriptions of events which the appellant gave to Mr Richards, the police conducting the interview, and Mrs Smith; and the appellant's conduct in making efforts to clean the knife, the hallway and herself before the police arrived.
5.That the appellant then ran into the kitchen (her version in the interview) and the deceased, still alive, staggered after her.
6.That she removed the knife from the deceased either in the hallway or in the kitchen, cleaned it, cleaned the hallway and changed her clothing before the police arrived.
From all of the above and, as well, from the position and angle of the wound, the inference was open that the appellant intended either to kill the deceased or to cause him grievous bodily harm when she stabbed him. However, in the absence of evidence of any motive, or evidence that the appellant must have caught the deceased unaware, I do not think that a jury, acting reasonably, could have rejected as a rational inference the possibility that the appellant stabbed the deceased without an intent to kill him or to do him grievous bodily harm. I would therefore allow the appeal, set aside the verdict of guilty of murder and substitute a verdict of guilty of manslaughter.
Determining the appropriate sentence which should be imposed in the present case is made somewhat difficult by the doubt which remains as to the circumstances in which the stabbing occurred.
However, I think that the following facts must be accepted: the appellant intentionally stabbed the deceased in the course of a domestic dispute; there was no history of violence or abuse in the relationship; and the attack was not premeditated.
The most likely scenario appears to be that the appellant and the deceased argued, the appellant lost her temper and she stabbed the deceased.
In R. v. Green [1986] 2 Qd.R. 406, Connolly J. said that the appropriate range of sentences for manslaughter cases "arising out of the frustrations engendered by close relationships and which do not otherwise have very special features" is a head sentence of five to six years' imprisonment, with a recommendation for eligibility for parole after about one and a half years. Whether or not that will always be the appropriate range when the factors which his Honour mentioned are present, in the present case weight must be given to the fact that, unlike the situation in most of the cases which his Honour reviewed in the course of his reasons in Green, the relationship between the appellant and the deceased was, on the appellant's own admission, generally a happy and peaceful one. Apart from the appellant's statement to police that the deceased had been depressed for several weeks and cranky with her for some days prior to the killing, there was no evidence of a build-up of frustration, tension or hostility between the parties. Nor did the appellant suggest that there had been any overtly provocative act or statement by the deceased prior to the stabbing.
In my opinion a head sentence of seven years' imprisonment is appropriate in this case. Taking into account the fact that the appellant is a 51 year old woman with no previous convictions who is unlikely to reoffend, I think there should be a recommendation for parole after two and a half years. I would therefore set aside the sentence of life imprisonment imposed below and substitute a sentence of seven years' imprisonment with a recommendation that the appellant be eligible for parole after serving two and a half years of that sentence.
IN THE COURT OF APPEAL
| SUPREME COURT OF QUEENSLAND | C.A. No. 375 of 1993 |
| Brisbane [R. v. Finn] |
T H E Q U E E N
v.
MICHELLE ALICE MARY FINN (Appellant)
________________________________________________________________
_
PINCUS J.A.
MCPHERSON J.A.
DAVIES J.A.
________________________________________________________________
_
| J | udgment delivered 04/02/1994 |
SEPARATE REASONS FOR JUDGMENT DELIVERED BY PINCUS, MCPHERSON AND
DAVIES JJ.A. DAVIES AND PINCUS JJ.A. CONCURRING AS TO THE ORDERS
TO BE MADE, MCPHERSON J.A. DISSENTING.
________________________________________________________________
_
APPEAL ALLOWED. SET ASIDE THE VERDICT OF GUILTY OF MURDER AND SUBSTITUTE A VERDICT OF GUILTY OF MANSLAUGHTER. SET ASIDE SENTENCE OF LIFE IMPRISONMENT AND SUBSTITUTE A SENTENCE OF SEVEN YEARS' IMPRISONMENT WITH A RECOMMENDATION THAT THE APPELLANT BE ELIGIBLE FOR PAROLE AFTER SERVING TWO AND A HALF YEARS OF SENTENCE.
________________________________________________________________
_
CATCHWORDS:CRIMINAL LAW - MURDER - Appeal against conviction - substituted for verdict of manslaughter - appellant and deceased in domestic relationship -appellant stabbed deceased
CRIMINAL LAW - EVIDENCE - no evidence of motive -inconsistent
statements of accused as evidence of guilt
CRIMINAL LAW - sentence of life imprisonment set aside - substituted for seven years' imprisonment with eligibility for parole after serving two and a half years
Counsel:M. Bryne Q.C. for Crown
M. Griffin for the Appellant
Solicitors:Director of Prosecutions for the Crown
Legal Aid Office for the Appellant
Date(s) of Hearing:9 December 1993
1At p.159. References are to page numbers in the appeal record.
2158.
3159.
4160.
5162.
6124.9.
7127.9.
8127.1.
9130.3.
10226.5.
11154.
12130, 153.
13153-154.
14128.
15253.8.
16125.
17360.7.
18335.
19158.
20385.7, 351.10.
21334.6.
22335.9, 374.3.
23361.5, 336.1.
24361.6.
25348.6.
26369.3.
27348.8, 363.5, 370.8.
28370.8.
29342.3, 353.9.
30336.9, 341.5.
31333.3, 335.6.
32332.5, 336.9.
33333.2.
34129.2, 337.7.
35361.5.
36337.9, 356.3.
37Ibid.
38352.8.
39330, 9, 354.9.
40330.9, 336.8, 344.9, 356.4.
41338.4; see also 360.2.
42347.8.
43355.7, 368.3.
44338.4.
45338.4.
46336.8, 338.5, 356.4.
47338.5.
48338.1.
49368.3.
50368.4.
51370.8, 371.3.
52359.1.
53369-7, 370.7.
54371.2.
55360.5.
56Ibid.
57360.6.
58344.9.
59365.5, 366.6.
60365.5, 338.6, 339.5, 346.6, 347.3, 368.9.
61341.2, 366.6, 364.2, 367.3.
62339.2.
63338.6.
64338.7.
65364.9.
66339.9.
67Ibid.
68366.6.
69338.6.
70338.9.
71342.6.
72345.4. See also 336.5.
73346.7.
74347.3.
75345.4.
76344.3.
77Ibid.
78344.3.
79366.6.
80Ibid.
82344.3.
83342.7.
84346.7.
85341.8.
86341.8, 345.5, 346.2.
87345.5.
88342.10.
89345.10, 356.8.
90337.5.
91356.7.
92131, 228, 251.
93339.7.
94340.2.
95364.2.
96371.8.
97370.9.
98337.7.
99347.3.
100341.5. See also 369.1.
101366.6.
102336.6, 338.5, 339.1, 340.3, 345.4, 346.6.
103357.3.
104336.7. See also 338.5, 339.3.
105346.5, 347.5.
106346.2, 347.5.
107342.10.
108127.3.
109337.3.
110356.6, 357.8.
111342.6.
112342.7, 357.8.
113337.4, 356.6, 357.8.
114356.6.
115373.4.
0
0
0