R v Golding

[1996] QCA 457

[1996] QCA 457

COURT OF APPEAL

DAVIES JA
PINCUS JA
FRYBERG J

CA No 265 of 1996

THE QUEEN

v.

ALLAN THOMAS GOLDING  Appellant

BRISBANE

..DATE 19/09/96

JUDGMENT

DAVIES JA:  The appellant was convicted in the Supreme Court on 15 May 1996 of manslaughter and on the following day he was sentenced to eight years imprisonment.  He has appealed against his conviction and sought leave to appeal against that sentence.

The appellant and the deceased lived together in a flat at Beerburrum.  The deceased's pet dog disappeared and the deceased suspected that the appellant had been a party to its disappearance as a prank.  The night before his death the deceased threatened to kill the appellant unless the dog was returned. The following morning the deceased told the appellant to move out of the flat.  The appellant was prepared to move out but was unable to secure alternative accommodation that day.

That evening when the deceased returned and found the appellant had not left he tried to drag and push the appellant out of the flat.  The appellant then produced a knife with a blade length of approximately 9 centimetres and stabbed the deceased nine times.  These were to the left chest to a depth of 8 or 9 centimetres, penetrating the heart; to his right ear to a depth of 8 or 9 centimetres penetrating through the skull and partially severing a lobe of the brain; to the left armpit to a depth of 7 centimetres; to the right breast to a depth of 7 centimetres; to the upper right back to a depth of 9 centimetres; to the upper right arm to a depth of 9 centimetres; above the left wrist to a depth of 4 centimetres; in the left arm with entry and exit wounds and to the jaw and neck area to a depth of 5 centimetres. 
There were also other lacerations.  Death was most likely to have been caused by the wound to the heart.  The appellant contacted the ambulance and a short time later it arrived.  The ambulance driver Mr Horne then had a conversation with the appellant. 

At his trial the appellant's counsel sought to have this conversation excluded from evidence.  This was no doubt because it included admissions against interest, but it was submitted that Mr Horne had the appearance of somebody in authority, that he had not warned the appellant before he made the admissions and that consequently their admission was unfair and ought to be excluded by the learned trial Judge in the exercise of his discretion. 

That submission was rejected and the correctness of that rejection is the sole ground of appeal against conviction.  The most important of the admissions were, "I can't remember where I stabbed him.  I stabbed him a couple of times.  I was just lashing out", and "I told Peter I had a knife.  He wouldn't let go.  He kept coming at me.  I was frightened and I lashed out with the knife".

Mr Horne made notes of this conversation about 30 minutes later.  He admitted in cross-examination that they were not the exact words, but said that they were fairly close to it.  He did concede the possibility in the words of his cross-examiner of getting things a little mixed up or forgetting things.  Nevertheless it would be difficult not to conclude that this was very reliable evidence given by a person with no interest either in the successful prosecution or successful defence.

Whatever may be the ambit of the fairness discretion, I do not think it could possibly have arisen in this case.  It was not submitted there was any breach of the Judges' Rules nor could any such submission have been made.  It was simply submitted that Mr Horne had the appearance of a person in authority and consequently admissions made to him ought to have been excluded because no prior warning was given. 

At least that was the submission below.  Here the submission appears to have been more broadly based and one can see more readily the absurdity of the submission when it was contended at first blush that any person wearing a uniform would have had that appearance of authority.  Ultimately the concession was made that the discretion arose if a nosy neighbour had come in and asked the questions and received the answers which Mr Horne asked and received.

Mr Horne, the ambulance officer, was simply a person asking what had happened.  The answers were voluntarily given.  He wasn't a person in authority and there was no question of involuntariness or any impropriety on the part of any questioner.  I do not think there is any substance in this ground and I would therefore dismiss the appeal against conviction.

The sentence imposed was one of eight years imprisonment.  The appellant was 37 years of age having been born on 27 February 1959.  He had a criminal record which were it not for the presence of two previous assault offences, would have been of little relevance.  He had been convicted in England in 1979 of assault occasioning bodily harm and in Australia in 1992 of assault.

The most serious aspect of this case was the use of a knife and the number of serious wounds inflicted with it on the deceased.  It was not the case of a single wound inflicting death but a number any one of which may have done so.  That he had the knife on his person and that he inflicted so many serious wounds on the deceased in my view makes this case a serious one of manslaughter.

The learned trial Judge, in sentencing the appellant, commented on his quite good antecedents, that he was a working man and that he had the capacity to contribute to society.  It should also be mentioned that prior to trial the appellant agreed to plead guilty to manslaughter but the Crown proceeded with the charge of murder on which he was acquitted.

Before this Court the appellant relied on a comparison between this case and Whannell, CA No 193 of 1992 in order to demonstrate that the sentence in this case was excessive.  It was submitted either that the Judge should have coupled it with a recommendation for early parole or imposed a shorter sentence than he did.

It appears that the course which His Honour took was to impose a sentence shorter than that which he otherwise might have imposed, to bring into account the factors to which I have already referred.  Unfortunately, as the learned trial Judge remarked, there appear to be more and more homicides in which people have chosen to use knives.   More recent examples of such cases are Zalijevic, CA No 211 of 1995 and Stafford,
CA No 503 of 1995. 

Those cases also demonstrate, in my view, that the sentence imposed by the learned sentencing Judge was not outside the range of a sound sentencing discretion, and I would therefore also refuse the application for leave to appeal against sentence.

PINCUS JA:  In my opinion, neither the appeal against conviction nor the application for leave to appeal against sentence has the slightest substance.  This was an extraordinarily savage attack with stabbings in the heart, deep into the skull, and in the back.  Of course, the victim being dead, the appellant was free to tell any story he wished, and the story he told was one which had no credibility.  I am referring of course to the account he gave to the police; he gave no evidence.

It seems to me that the sentence was quite moderate and that a higher sentence might have been warranted.  I agree that the appeal should be dismissed and the application for leave to appeal against sentence refused.

FRYBERG J:  The essence of the argument advanced on the appeal against conviction, as I understood it, was that it was unfair for the statements against interest to be received into evidence because they were made in response to questions asked by a person, who in asking them acted outside his proper role on the occasion of the asking.  The width of that proposition is breathtaking.  It does not seem to me that that fact alone could call for the exercise of the relevant discretion to exclude unfairly procured evidence. 

As far as the application in relation to sentence is concerned I would add only that the applicant's offer to plead guilty to manslaughter was withdrawn when the prosecution elected to proceed with the murder charge and no plea of that sort was entered.  I agree with the orders proposed by the presiding Judge and with his reasons for them.

DAVIES JA:  The orders are as I have indicated.

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