R v Harding

[2000] QCA 173

[2000] QCA 173

COURT OF APPEAL

DAVIES JA
MACKENZIE J
DOUGLAS J

[R v Harding]

CA No 394 of 1999

THE QUEEN

v.

GREGORY JOHN HARDING  Appellant

BRISBANE

..DATE 11/05/2000

JUDGMENT

DAVIES JA:  The appellant was convicted after a trial in the Supreme Court at Mount Isa on 3 November 1999.  He appeals against that conviction.

After 18 years of marriage, of which there were four children, the appellant and his wife separated, and his wife, Lynette Harding, commenced a relationship with the deceased, Darren Stagg.

On the night of 13 February 1999, Mrs Harding and Mr Stagg were living together in a house at Mount Isa with the four children.  It is plain from what follows that the appellant strongly resented that relationship.

At about 8 p.m. that night, the appellant telephoned the house and spoke to each of the deceased, the appellant's wife and several of his children.  When speaking to his wife, he was, according to her, abusive.  He had by this consumed a quantity of alcohol but was apparently not obviously drunk.  When speaking to his daughter, Sarah, he said, "Tell Darren that I'll be back and he better watch out."

On that night, Mrs Harding and the deceased slept together in the double bed in the main bedroom of the house.  At about 6.40 a.m. on the following morning, Mrs Harding was awoken by the bedroom door opening.  The door was flung open and the appellant entered the room and jumped on top of the deceased on the bed.  Mrs Harding heard him say, "This is your Valentine's Day present."  She was not sure whether that was addressed to her or to the deceased.

There was then a struggle between the appellant and the deceased which, understandably, Mrs Harding was unable to describe in any detail.  She thought that at some stage they were both standing.  With one hand the appellant appeared to be holding the deceased by the penis whilst his other hand and arm appeared to be raised towards the deceased's upper body or head.  Mrs Harding did not at any time see a knife but it appears that when they were standing, the deceased had his back towards her. 

At some stage during the struggle, Mrs Harding heard the appellant say, "This is the first warning."  She ran out of the room to call the police.  One of the children, Natasha, aged 12, who gave evidence by videotape, entered the room at some time during the struggle and also heard the appellant say words to the effect, "This is just the first warning."  She tried to pull the appellant away from the deceased but was unsuccessful, and then ran into the kitchen.

The deceased man was unconscious by the time the ambulance arrived at the house and was unable to be resuscitated at the hospital.  A post-mortem examination revealed a stab wound to the right ear which had penetrated into the bone of the skull some 65 millimetres from the skin surface and another stab wound in the right lower neck which was approximately 10 centimetres in length and which had cut the main vein in the lower right neck.  It was that latter injury which was fatal.  Nevertheless, the examining doctor thought that the injury to the right ear may well have involved a greater degree of force than the fatal injury.  Both wounds were, it appears, caused by a knife.

The appellant does not contest that it was he who inflicted the fatal wound.  Indeed, that was not contested below.  The question which is argued here is whether it was open to the jury to be satisfied beyond reasonable doubt that the appellant intended to kill or do grievous bodily harm to the deceased.  Indeed, it may be put more narrowly than that.

In this Court, the contention is that the appellant did not intend to do grievous bodily harm to the deceased, it being common ground by the time of this appeal, that he did not intend to kill the deceased.

The appellant made no admissions to the police and did not give evidence at the trial.  It was submitted to this Court that the statement, "This is your first warning," or to like effect, was inconsistent with an intention to either kill or to do grievous bodily harm.

It is probably correct to say that the statement having been made, it was not open to the jury to be satisfied beyond reasonable doubt that the appellant intended to kill the deceased.  As I said, that appears to be now common ground.  But in my view it is not inconsistent with an intention to do grievous bodily harm.  Alone, it is probably equivocal.  
The evidence from which the jury, in my opinion, may reasonably have concluded that the appellant intended to inflict grievous bodily harm appears from the nature and extent of the injuries caused and the fact that the appellant apparently armed himself with the knife, at least before he entered the bedroom of the house, and probably even before he entered the house.  The examining doctor said that the neck wound would have required moderate force and the wound to the head may well have involved a greater degree of force than that.

It is true that the wounds were inflicted during the course of a struggle, of which there was no clear description, and that the nature and severity of either of the blows may have been increased somewhat by sudden unexpected movements of the deceased but the wounds were both to vital areas.  One was to the head, the other to the neck.  In addition, they were both stab wounds, not slashes with a knife.

Those facts, together with the fact that the appellant entered the house or at least the bedroom carrying the knife, in my view, were sufficient to entitle the jury to conclude, as they did, that he must have intended to inflict grievous bodily harm.

For those reasons I would dismiss the appeal.

MACKENZIE J:  I agree.

DOUGLAS J:  I agree.

DAVIES JA:  The appeal is dismissed.

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