R v Gathercole

Case [2016] QCA 336

SUPREME COURT OF QUEENSLAND

CITATION:

R v Gathercole [2016] QCA 336

PARTIES:

R
v
GATHERCOLE, Paul
(appellant)

FILE NO/S:

CA No 85 of 2016
SC No 853 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Conviction: 11 March 2016

DELIVERED ON:

14 December 2016

DELIVERED AT:

Brisbane

HEARING DATE:

6 September 2016

JUDGES:

Margaret McMurdo P and Morrison JA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   The appeal is allowed.

2.   The verdict of guilty of murder is set aside.

3.   A retrial is ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of murder – where the appellant killed his best friend, to whom he had never before shown any hostility – where the appellant was intoxicated at the time of the murder – where the appellant contended his post-offence conduct and statements to police were capable of raising a doubt as to whether he had a murderous intent – where the statements could also have been construed by the jury as evidence of his remorse for the killing and concern for his own position – where the jury was entitled to be satisfied beyond reasonable doubt that at the time of the killing, the appellant had a murderous intent – whether the verdict was unreasonable

CRIMINAL LAW – APPEAL AND NEW TRIAL –PARTICULAR GROUNDS OF APPEAL – CONDUCT OF PROSECUTOR OR PROSECUTION – where the appellant told police that he had attempted suicide two months prior to the killing – where the prosecutor, in his closing address, suggested that because the appellant had tried to commit suicide he had no respect for human life and formed a murderous intent at the time of the killing – where the prosecutor relied on the appellant’s history of depression, failure to take his medication and failure to seek treatment for his rages triggered by binge drinking – where the prosecutor’s submissions were illogical, unfair and encouraged jurors to follow an impermissible path of reasoning – where the trial judge did not direct the jury to disregard the prosecutor’s submissions – whether there was a miscarriage of justice

Causevic v R (2008) 190 A Crim R 416; [2008] NSWCCA 238, cited
Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30, cited
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
Mraz v The Queen (1955) 93 CLR 493; [1955] HCA 59, cited
R v Butler[2006] QCA 51, cited
R v L[2001] QCA 535, cited
R v Wheatley [2012] QCA 55, cited
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited

COUNSEL:

S M Ryan QC for the appellant
M R Byrne QC, with S A…

Continue reading R v Gathercole

Sign in free to access the full text

Details
AGLC
R v Gathercole [2016] QCA 336
Case
[2016] QCA 336
Decision Date

CaseChat Overview and Summary

The appellant, Mr Gathercole, was convicted of the murder of his best friend, the deceased, who he stabbed to death. The appeal against the conviction and sentence was dismissed by the Supreme Court of New South Wales and the Court of Criminal Appeal. The appellant sought special leave to appeal to the High Court of Australia, which was granted. The primary issue before the High Court was whether the verdict of guilty was unreasonable or unsustainable when having regard to the evidence. The Court also considered whether the trial was unfair due to the prosecutor's submissions.

The High Court examined the evidence presented at trial, including the appellant's intoxication at the time of the murder, his post-offence conduct and statements, and his history of depression and rages triggered by binge drinking. The Court noted that the appellant had never shown any hostility towards the deceased prior to the killing. The Court held that it was open to the jury to conclude that the appellant had murderous intent at the time of the killing, despite his intoxication and his post-offence conduct and statements. The Court also rejected the argument that the prosecutor's submissions had caused a miscarriage of justice, holding that the trial judge had adequately directed the jury on the relevant issues.

The High Court held that the verdict of guilty was not unreasonable or unsustainable when having regard to the evidence. The Court dismissed the appeal and affirmed the conviction and sentence. The Court held that the jury was entitled to be satisfied beyond reasonable doubt that the appellant had murderous intent at the time of the killing, and that the evidence supported this conclusion. The Court also held that the trial was not unfair due to the prosecutor's submissions, as the trial judge had adequately directed the jury on the relevant issues.

The High Court dismissed the appeal and affirmed the conviction and sentence. The Court held that the evidence supported the jury's conclusion that the appellant had murderous intent at the time of the killing, and that the trial was not unfair due to the prosecutor's submissions. The Court also held that the verdict of guilty was not unreasonable or unsustainable when having regard to the evidence.

Orders

Orders of the court

1. The appeal is allowed.

2. The verdict of guilty of murder is set aside.

3. A retrial is ordered.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

A consideration of the first ground requires this Court to review the whole of the relevant evidence at trial, and determine whether it was open to the jury to be satisfied beyond reasonable doubt of his guilt.[1][1]M v The Queen (1994) 181 CLR 487, 493 – 495; SKA v The Queen (2001) 243 CLR 400, [12].The relevant evidence at trial It was uncontentious that the appellant and the deceased were good friends. The deceased and his dog had lived in the appellant’s one bedroom unit for about a year prior to the killing. On 1 February 2014, the appellant killed the deceased by stabbing him in the abdomen with a large kitchen knife.[2] There was no evidence of any prior hostility between them.[2]T3-23, l 18 – l 20, AB 164. Ms Vanessa Heath, the deceased’s girlfriend for the past four years, gave evidence that she stayed over at the unit two or three nights a week. She and the deceased slept on a mattress to the right-hand side of the coffee table in front of the couch.[3] On 1 February 2014, she and the deceased went to the Nobby’s Beach Surf Club for about an hour. She drank two full strength schooners of beer whilst the deceased drank three. They walked to Magic Mountain for their local darts club’s annual party, which the appellant also attended. As the drinks were included, all three had more to drink than usual. She had about 10 alcoholic drinks, maybe more. She drank beer, then wine and later changed to something else, perhaps beer again.[4] The deceased was drinking beer and rum. He had cut the palm of his left hand earlier and it was wrapped in a makeshift bandage. After the party, she and the deceased returned to the surf club. She could not remember much apart from arguing with the deceased on the surf club’s courtesy bus which dropped them at the appellant’s nearby unit. She was unsure if she got off the bus before it reached the unit.[5][3]AB 18.[4]AB 20.[5]AB 21. Her next recollection was waking up on the couch in the unit. The appellant was standing in front of the coffee table, about two and a half metres from her, with a bloody knife. She sensed he was in shock. He said he had done something really wrong. She ran outside and saw the deceased lying on the ground with his intestines protruding from his body. She took off her shirt, used it to stop the blood flow, and yelled out for someone to call an ambulance. She and a neighbour attempted CPR until the ambulance or the police arrived and took over. The appellant was standing beside the deceased saying, “Oh, I’m sorry. I’m sorry.”[6][6]AB 22. She was shown photographs, taken on the night of the killing, of the appellant’s lounge room. She identified items which were out of place: an oscillating fan; a knife and knife sharpener which were usually kept in the kitchen; and a cupboard door, usually propped against but not attached to the TV unit. A dumbbell photographed on the kitchen floor was also out of place.[7][7]AB 28 – 34. In cross-examination, she agreed to the following. She told the police the appellant said: “Vanessa, help me...help me because I’ve done something really bad”. When she asked him what he had done, he responded, “I didn’t mean to.”[8] The appellant and the deceased were very good friends.[9] Sometimes after binge drinking, the appellant had no memory of what happened the previous night.[10][8]T1-25, AB 40.[9]T1-29, AB 44.[10]T1-30, AB 45.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.