R v Harding

[1999] QCA 88

99.88

COURT OF APPEAL

McMURDO P
McPHERSON JA
MUIR J

CA No 414 of 1998

THE QUEEN

v.

JASON DANIEL HARDING  Appellant

BRISBANE

..DATE 23/03/99

JUDGMENT

THE PRESIDENT:  The appellant was convicted in the Supreme Court, Brisbane on 15 October 1998 of murdering Whintre Shalon Linsley on 14 July 1994.

He appealed against his conviction on the grounds that:

"My involvement in the crime.  The verdict was unsafe and unsatisfactory."

He is not legally represented and has conducted his own appeal.  The conviction from which he appeals followed a retrial after a successful appeal to this Court (see
R v. Harding, CA 519 of 1995, delivered 17 February 1998.)

The earlier trial predated the High Court judgment in
Barlow v. The Queen (1997) 188 CLR 1 and for that reason the correct directions to the jury as to section 8 of the Criminal Code had not been given.

The Crown case in the trial the subject of this appeal was that the appellant, knowing that Don Gilbert intended to kill Linsley or do him grievous bodily harm, either jointly with Don Gilbert (his co-accused on the earlier trial) assaulted Linsley with an intention to cause death or grievous bodily harm or that the appellant aided Don Gilbert to murder Linsley, whether by directly aiding him to inflict the blows or by doing other acts to assist him, namely getting him intoxicated and enticing him into a position where Don Gilbert could attack him, knowing that Don Gilbert intended to kill Linsley or do him grievous bodily harm.

The main evidence against the appellant was a series of confessions to police made on 29 July 1994 after the appellant and others had been apprehended in New South Wales.  Initially, the appellant said he killed Linsley with a stick like a shovel handle by hitting him around the head a few times because he was a "rock spider".  No-one else was present and he covered Linsley up with sticks and left him.  In the second interview the same day the appellant said he had not told the truth and that the last time he saw the deceased was at the Maroochydore Hotel.  Later in the second interview he agreed that was incorrect.  He then said that he, Don Gilbert and Don's brother, Bill, went with the deceased into the bush and were drinking.  They got into another argument and the appellant hit the deceased a couple of times with something like a shovel handle around the head.  The appellant walked off and then Don Gilbert hit the deceased.  One reason for the assault was because the deceased was a "rock spider".  It was very dark:  he could hardly see.  At Don's request he then helped Don cover up the body with branches and leaves.  He demonstrated the baseball swinging action that he used and said the stick broke when he was assaulting the deceased.  He said that Don and he later burnt the clothes that they were wearing.  Ultimately the Crown did not rely on the first interview for the truth of its contents.
There was a body of other evidence implicating the appellant.  Evidence was led from Rebecca McGrath who had been in a relationship with Don Gilbert that one day in July 1994, Don, his brother Bill, the appellant and the deceased left her house in a car at about sunset.  She next saw Bill and the appellant at her home at about 9.30 or 10 that night when they asked her to get clean clothes and an old towel for Don.

Catherine Ford was an acquaintance of McGrath and Don Gilbert.  She last saw Don Gilbert on an evening in July 1994 when he, his brother Bill and either the appellant or Shayne Brannaghan arrived at her home. Don had blood on his chest, hands and face. She did not notice any blood on the others.  Don had a shower and changed into other clothes brought to her home by Bill. 

The body of the deceased was found and police notified on 26 July 1994.

James Jordan had been sharing a house with Don and Bill Gilbert, the appellant, and Shayne Brannaghan.  One evening in July 1994, the TV news reported the finding of a body at Pomona.  By 10.00 p.m. Don, Bill, Shayne and the appellant had all vacated the house leaving behind clothes, a TV and a stereo.  He has not seen them since.

Shayne Brannaghan was a friend of the deceased and lived at Marcoola with the appellant, Bill Gilbert and the deceased.  Don Gilbert at this time was staying with Rebecca McGrath.
They had to leave the Marcoola house because of unpaid rent and went to stay with McGrath for one night.  That night, in the presence of the appellant, Don Gilbert said, "I'm going to drop Whintre off down the pub there and probably give him a few clouts around the head."  Don and Bill Gilbert, the deceased and the appellant all left in a car at about dusk.  The deceased was very intoxicated.  A few hours later they came back without the deceased.  Don wanted some clothes and a towel and Shayne collected them and took them to Catherine Ford's where Don had a shower.  They then returned to Rebecca McGrath's where Don said in the presence of the appellant, "I just knocked a rock spider."  The appellant said nothing.
Brannaghan travelled south with the others on hearing a news item about a body being found.  During the trip he heard a conversation about the killing of the deceased. Don said, "Did you see his brains splatter over the place?"  The appellant said, "Yeah, it was cool."

Pathologist, Dr Williams, found that head injuries were the cause of death.  It was very unlikely that death was caused by a single blow.  The observable injuries to the head suggested the use of severe force with something like a baseball bat or two by four timber.

The deceased's broken thumb was consistent with a defence injury.  Although the deceased had a history of previous fractures and chalky bones, the strength of the skull bones was approaching normal.

The appellant gave evidence that the deceased volunteered to take them to an area where marijuana plants used to grow.  The deceased went into the bush with Don Gilbert for a period.  The appellant was not involved in any assault on the deceased.  Don Gilbert asked him to help cover the deceased.  Don had a shower at Cathy Ford's.  Bill Gilbert got Don clean clothes from Rebecca's.  The appellant had a shower and was given fresh clothes at Rebecca's.  He put his discarded clothes with Don's and threw them away.  Twelve days later he heard on the news that a body had been found and he left with the others to travel to New South Wales intending to return to his parents.
After being apprehended he was questioned by police and falsely confessed as he thought it was all a big joke and he was affected by LSD.  He then gave police a different version which was also false.  He was scared.  He wanted to show he was a good mate and decided to take the rap and give a false account to police.

In his submissions to this Court the appellant stresses that evidence called by the Crown from Shayne Brannaghan was that it was only Don Gilbert and not the appellant who said, "I just knocked a rock spider."  He agrees that he was at the scene when the deceased was killed, but says that if he had not acted as he did, Don Gilbert may have killed him.

It is not clear whether he now, for the first time, seeks to raise extraordinary emergency under section 25 of the Criminal Code as a defence. He submits that as he was in prison he was vulnerable to attack and he had to keep up his charade even after his arrest. He claimed that even though he knew he was making a false confession to murder, he believed in the end that Don Gilbert would be convicted and he would be acquitted, without having to betray Don Gilbert. In other words he seems to be raising for the first time on this appeal the claim that he lied to police and possibly lied at his trial because he was in fear of his co-accused Don Gilbert.

The appellant emphasises in his submissions evidence that only Don Gilbert, not the appellant, was seen covered in blood and only Don Gilbert, not the appellant, admitted "knocking" the deceased.

Don Gilbert, he says, was a frightening person who had threatened to kill others and it was understandable why this appellant would make a false confession in all the circumstances.  The appellant submits, "I would like to have another chance in a court of law to prove this by letting the jury know all the facts, not most of them, and if they still return the same verdict, so be it."  In other words the appellant wishes to have another re-trial conducted on a very different basis from that conducted below.

In his reply, for the first time he now also makes some complaints such as are common these days about his legal representation.  He has not, however, demonstrated any valid complaint in respect of his legal representation.

The appellant has not shown any error in the learned trial Judge's directions to the jury which were careful and clarified the issues.  It must have been clear to the jury from those directions what the issues were.  The defence case was fairly put to the jury.  His Honour told the jury that:

"Mere presence at the scene of an offence without more does not constitute aiding, but some positive act is required.  To be guilty of an offence, a person accused of aiding in its commission must have done so knowingly.  A person who unwittingly aids another in committing an offence will not be guilty of it.  The aider must have known what offence was to be, or might be, committed."

His Honour properly left open to the jury verdicts of manslaughter with directions consistent with Barlow v. The Queen.  His Honour gave particularly careful directions to the jury as to the confessional statements.  His Honour stressed that before acting on any confessional statement the jury must be satisfied not only that the statement was made, but that it was true, alluding to the possibility of false confessions being made through a disturbed mind or, as was suggested here, weak character and low intelligence.  There was ample evidence which would have entitled the jury to convict the appellant of murder:  namely, the uncontested evidence even on this appeal that he was present at the scene, his confessional statements that he attacked the deceased, his subsequent shower and the disposal of Gilbert's and his clothes, his presence before the attack at McGrath's when Gilbert said, "I'm going to drop Whintre off down the pub there and probably give him a few clouts around the head", and his conversation with Gilbert after heading south in which Gilbert said, "Did you see his brains all over the place?" and the appellant replied, "It was cool."

There was no evidence before the jury to raise a defence under section 25 of the Code. The appellant cannot now rely on matters not raised at the trial concerning the violence of his co-accused Don Gilbert.

The appellant has failed to demonstrate that the verdict was unreasonable, or that the verdict cannot be supported having regard to the evidence, or that any miscarriage of justice arose out of the trial.

I would dismiss the appeal.

McPHERSON JA:  I agree.

MUIR J:  I agree.

THE PRESIDENT:  The order is the appeal is dismissed.

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