R v Fox (No 2)

Case [1999] QCA 140
IN THE COURT OF APPEAL [1999] QCA 140
SUPREME COURT OF QUEENSLAND

C.A. No. 364 of 1998

Brisbane [R v Fox]

THE QUEEN

v

WILLIAM KELVIN FOX

(Applicant) Appellant

McMurdo P
Pincus JA

Shepherdson J

Judgment delivered 23 April 1999

Separate reasons for judgment of each member of the Court, each concurring as to the orders made.

THE APPEAL AGAINST CONVICTION IS DISMISSED.
THE APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE IS
GRANTED AND THE APPEAL ALLOWED TO THE LIMITED EXTENT OF
ADDING TO THE ORDERS MADE BELOW THE FOLLOWING DECLARATION:
IT IS DECLARED THAT THE COURT'S RECOMMENDATION THAT THE
APPLICANT NOT BE CONSIDERED FOR PAROLE UNTIL THE AUTHORITIES
ARE AS CONFIDENT AS HUMANLY POSSIBLE THAT THE APPLICANT IS NO
LONGER A RISK TO THE COMMUNITY FORMS NO PART OF THE SENTENCE
OR JUDGMENT OF THE COURT.
OTHERWISE, THE SENTENCE IMPOSED BELOW IS CONFIRMED.

CATCHWORDS: 

CRIMINAL LAW - APPEAL AGAINST CONVICTION - attempted murder - entry into dwelling house at night with intent to commit indictable offence - whether judge misdirected jury on complainant’s identification - whether Domican direction should have been given - whether jury should have been directed that prior inconsistent statement of appellant should have been evidence of truth according to s101 Evidence Act 1977 - whether trial judge erred in allowing prejudicial and inflammatory propensity evidence - whether miscarriage of justice

CRIMINAL LAW - APPEAL AGAINST SENTENCE - whether trial judge erred in making recommendation that appellant not be released until “as satisfied as humanly possible” that no longer threat to community - purpose of O VIII r 3 calendar - whether legitimate indefinite sentence - whether days served in pre-custody properly accounted for.

Domican v R (1992) 173 CLR 555
R v Chapman CA No 65 of 1993, 9 June 1993
R v Condren (1990) 49 ACrimR 79
R v Jones CA No 63 of 1997, 27 May 1997
R v Pfennig (1995) 182 CLR 461
R v Skedgwell CA No 434 of 1997, 27 March 1998
R v Turnbull [1977] QB 224
R v Wood CA No 429 of 1994, 14 December 1994
Evidence Act 1977 ss18, 101
Criminal Practice Rules 1900, O VIII r 3
Penalties and Sentences Act 1992 ss157, 158, 161, 163(3)
Counsel:  Mr P Callaghan for the applicant/appellant.
Mr D Bullock for the respondent.
Solicitors:  Legal Aid Queensland for the applicant/appellant.
Director of Public Prosecutions (Queensland) for the respondent.
Hearing Date:  2 March 1999
REASONS FOR JUDGMENT - McMURDO P

Judgment delivered 23 April 1999

  1. The appellant was convicted in the Supreme Court at Brisbane on 14 September 1998 of attempted murder of Barbara Hellwich and entering her dwelling house at night-time with intent to commit an indictable offence. He was sentenced to life imprisonment and 5 years imprisonment respectively. The offences were committed on 22 April 1992.

    The facts

  2. The appellant had a de facto relationship with Colleen King for 10 years from 1982. They maintained separate, adjoining rural residences at Glenwood, between Maryborough and Gympie. A son was…

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Details
AGLC
R v Fox (No 2) [1999] QCA 140
Case
[1999] QCA 140
Decision Date

CaseChat Overview and Summary

In the case of R v Fox (No 2), the appellant was convicted of attempted murder and entering a dwelling house at night with intent to commit an indictable offence. The Supreme Court of Queensland heard an appeal against the conviction, examining various legal issues concerning the trial. The central issues included whether the judge misdirected the jury regarding the complainant's identification of the appellant, if a Domican direction should have been given, whether the jury should have been directed to treat the prior inconsistent statement of the appellant as evidence of the truth under s101 of the Evidence Act 1977, if the trial judge erred by allowing prejudicial and inflammatory propensity evidence, and if these errors led to a miscarriage of justice.

The court found that the judge adequately addressed the issue of the complainant's identification, and there was no basis for a Domican direction, as the complainant had a clear opportunity to observe the appellant. Regarding the prior inconsistent statement, the court held that no direction under s101 was required as no request was made by counsel. The court further found that the trial judge erred in allowing Peter Fox's prejudicial and inadmissible propensity evidence to be highlighted without providing appropriate directions to the jury on its limited use. This omission constituted a failure to properly instruct the jury, potentially leading to a miscarriage of justice.

The court ordered that the appeal against conviction be allowed, and the convictions quashed, with a retrial ordered. This decision underscores the importance of proper jury directions to prevent the misuse of prejudicial evidence and ensure a fair trial.

Orders

Orders of the court

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Background

Background to the litigation

The appellant was convicted in the Supreme Court at Brisbane on 14 September 1998 of attempted murder of Barbara Hellwich and entering her dwelling house at night-time with intent to commit an indictable offence. He was sentenced to life imprisonment and 5 years imprisonment respectively. The offences were committed on 22 April 1992. The facts The appellant had a de facto relationship with Colleen King for 10 years from 1982. They maintained separate, adjoining rural residences at Glenwood, between Maryborough and Gympie. A son was born of the relationship and a custody dispute arose when the relationship ended in early 1992. Barbara Hellwich and the appellant had known each other for about 6 years prior to April 1992. When Hellwich’s son was born in 1990 she was deserted by the father, King's brother, and she stayed with King for about five months. Hellwich and Peter Fox, who was 14 in 1992, had had a relationship, but Hellwich claimed privilege when asked about it. In 1992, King left Queensland with her son, and the appellant attempted to trace her. He pestered Hellwich about King’s whereabouts. Hellwich and King went to a women’s shelter, and Hellwich returned to her caravan on the Gold Coast about 2 weeks before the offence. On 22 April 1992 King visited Hellwich and they were drinking together in Hellwich’s caravan. Hellwich’s two year old son was asleep. At about 3.30 a.m., Hellwich said she was going to go to bed. King went to the toilet and when she returned touched Hellwich on the knee and said, "Bill." Hellwich was sitting in the lounge area and the lights were on. Hellwich said she turned and saw the appellant, with a long rifle with a wooden stock, standing next to King. He had a moustache and full beard and was wearing nothing on his head. Hellwich said, "Oh shit." He shot her in the face before she had properly risen from her seat. She covered her face, turned and fell to the floor on her knees. Her son ran in crying, and Hellwich called him to her and held him. She felt the gun against the back of her head and she was shot for a second time, her head jolting forward. She felt extreme pain and begged him not to shoot her son. She could see his leg to her right, then the gun was placed under her right arm and she was shot a third time, feeling great pain then losing consciousness. When she revived, the appellant and King were gone and her son was still in her arms. She eventually managed to call 000 and get assistance. She did not name or describe her attacker in the phone call. Hellwich told police that the appellant was her attacker. In hospital, she was interviewed by two police officers in a tape-recorded interview. The tape had been lost, but the transcript of the taped interview, which had not been verified against the tape, but which the police officer involved believed was accurate, recorded her as saying when describing the weapon: HELLWICH: "Lightish, not light brown but sort of, you know, when you dabble wood." Q: Alright, yes?" HELLWICH: "That sort of colour." Q: Right. Did anything else stand out on it at all?" HELLWICH: No. It ... I didn’t even see his face, all I saw was the gun." Q: "Alright, but how did you know it was him then?" HELLWICH: "Well, I did see his -- " Q: "Right, yeah." HELLWICH: "But you know that is what really attracted me, attracted my attention... It was him, I know it was him." Q: "Do you know what he was wearing?" HELLWICH: "No, it just happened real quick."

Evidence

Evidence Before The Court

Mr Callaghan has referred us to the case of R v Condren[4]. In Condren's case the defence case relied on a confession to murder made out of court by Albury, which the defence claimed was true. Albury was called at Condren's trial but denied making the confession. Albury's confession was proved as an inconsistent statement. Here the defence case was that the identification or recognition was unreliable and the statement made by Hellwich to police at the hospital demonstrated its unreliability. This issue was carefully and adequately dealt with in the judge's summing up to the jury. A trial judge cannot be expected to give a direction under s 101 of the Evidence Act 1977 in these circumstances when no request was made by counsel for such a direction or redirection. There is nothing in this ground of appeal. [4] (1990) 49 ACrimR 79 at 88. Inflammatory and prejudicial evidence from Peter Fox The final ground of appeal is that the witness Peter Fox gave evidence which was inflammatory and prejudicial and that as a result the jury should have either been discharged, or not have been reminded of this evidence or, having been reminded of this evidence, received special directions about the use to be made of it. The evidence complained of is as follows: Undoubtedly, this evidence, which was not responsive to the question asked by counsel, was both highly prejudicial and inadmissible, being evidence only of propensity: see Makin v Attorney-General (New South Wales)[5] and Markby v The Queen.[6] No application to discharge the jury was made then or later in the trial. His Honour was not asked to and did not give any direction as to what use, if any, the jury could make of that evidence. To the contrary, his Honour in his summing up told the jury he would remind them of some of the more important aspects of the evidence of the more important witnesses. When summarising Peter Fox's evidence he said: [5] [1894] AC 57. [6] (1978) 140 CLR 108. "He said that the accused in his presence on an earlier occasion had asked a friend to shoot Colleen King. That was a matter which Mr Clifford commented on, you might recall, because it didn't appear to be a matter which had surfaced in evidence or in any statement at any earlier date." Later in the summing up, when reminding the jury of the defence case, his Honour said: "In relation to the credibility of Peter Fox, he [defence counsel] referred to that piece of evidence of the accused asking a person by the name of Alexander to kill Colleen King." It seems defence counsel decided not to ask for a retrial following Peter Fox's prejudicial and inadmissible outburst, but rather to use it to discredit the witness generally. This appears to have been a significant feature of defence counsel's address to the jury. At a discrete time after the prejudicial evidence had been given by Peter Fox, his Honour should have raised the matter with both counsel in the absence of the jury and invited submissions as to the most desirable course to follow. Options would include a mistrial, immediate directions to the jury to disregard the evidence, directions in the summing up, or a decision to ignore the evidence completely, to avoid highlighting it to the jury. Here, apparently without discussion with the judge, a tactical decision was made by defence counsel to conduct the trial highlighting Peter Fox's outburst in order to discredit his evidence generally. In these circumstances, whether or not it was requested by counsel, his Honour should have told the jury that they could not treat that statement as evidence as to the guilt of the appellant, and stressed that it related only to his credit, as submitted by defence counsel. His Honour's directions to the jury left them to consider inadmissible, prejudicial evidence of propensity with no warning as to the limited use to be made of it. His Honour erred in law in failing to give those directions in this case.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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