R v Harding

[1998] QCA 9

IN THE COURT OF APPEAL	[1998] QCA 009
SUPREME COURT OF QUEENSLAND

C.A. No. 519 of 1995.

Brisbane

[R v. Harding]

T H E Q U E E N

v.

JASON DAVID HARDING

Appellant

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Davies J.A.
McPherson J.A.

Pincus J.A.

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Judgment delivered 17 February 1998

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

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APPEAL AGAINST CONVICTION ALLOWED AND A NEW TRIAL ORDERED.
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CATCHWORDS: Criminal Law - Murder - appeal against conviction - whether failure of trial judge to direct jury they could find appellant guilty of manslaughter, although co-accused found guilty of murder, vitiated the verdict - whether it would have been possible for a reasonable jury to treat appellant’s confessions sceptically.

Criminal Code s. 8

Barlow (1997) 188 C.L.R. 1

Counsel:	Mr M Griffin for the appellant. Mrs L Clare for the respondent.
Solicitors:	Legal Aid Queensland for the appellant. Director of Public Prosecutions (Queensland) for the respondent.
Hearing date:	15 August 1997.
REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered 17 February 1998

I agree that the appeal should be allowed and a new trial ordered for the reasons given by Pincus J.A. I would add only, with respect to his Honour's observations on the joint majority judgment in R. v. Barlow (1997) 188 C.L.R. 1 that, in my view, the principle applicable to this case is that stated at p.10 of the joint judgment and that the passage at pp.l3 and 14 thereof, referred to in the reasons of Pincus J.A., has no relevance to the circumstances of this case.

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 17 February 1998

I agree that, for the reasons given by Pincus J.A., this appeal should be dismissed.

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 17 February 1998

The appellant was tried for and convicted of murder with Donald Bruce Gilbert and William Lawrence Gilbert; some of the circumstances are mentioned in my reasons relating to Donald Bruce Gilbert's appeal, delivered today. The appellant, for whom Mr Milton Griffin appeared, contended that confessional evidence should have been excluded. It was also contended that the judge should have directed the jury that they could find Harding guilty of manslaughter, although a co-accused was or both co-accused were found guilty of murder and that the failure to do so vitiated the verdict.

It appears to me convenient to consider the latter point, which has some substance, first. As I have pointed out in my reasons relating to Donald Gilbert's appeal, the judge summed up well before the High Court in Barlow (1997) 188 C.L.R. 1 determined the meaning of s. 8 of the Criminal Code; in my reasons delivered 19 December 1997, in the appeals of Donald, Jeffrey and Pascoe (C.A. No. 309 of 1996, C.A. No. 154 of 1997, C.A. No. 242 of 1997, 19 December 1997), I have explained what appears to me to be the effect of the High Court's decision in Barlow. I do not propose to repeat that discussion here; the matter is conveniently summarised in the third paragraph of the Commonwealth Law Reports headnote.

The evidence against the appellant Harding consisted principally of some rather curious confessions, together with some of Harding's own evidence and evidence from three other witnesses, Catherine Ford, Stephen Anderson and Rebecca McGrath. The Crown argued before the jury that Harding killed Linsley or else was a party to an agreement to kill him or do him grievous bodily harm. It seems unlikely that the jury could have reached a clear conclusion as to precisely what part Harding played in the result, i.e. the death of Linsley. When first interviewed by the police on 29 July 1994, Harding said he was present when Linsley was murdered, but did not remember who was with him or how he got to the scene. He went on to say that he, Harding, killed Linsley with a stick by hitting him around the head a couple of times. He also said that the only two persons present when he killed Linsley were himself and Linsley. Shortly after that, in another interview, he said that he had lied when he claimed to be responsible for the murder of Linsley. On this occasion he asserted that on the day in question he drove with William Gilbert, Shane Brannigan and Linsley and dropped Brannigan and Linsley off at a hotel, picking them up about 2 hours later, and that he last saw Linsley on that afternoon. Then Harding varied the story again, saying that Linsley “ended up coming with us” and that they went to the house of Rebecca McGrath and started drinking. He said that Donald and William Gilbert, Linsley and Harding got into a car and went for a drive. It was put to him that they went out to an area where Linsley was murdered and he agreed with that. He said there was an argument which became physical and that as far as he knew Linsley was hit a couple of times and that he, Harding, had hit Linsley with a lump of wood twice, once around the head. He did not know how many times Donald Gilbert hit Linsley because he was not there when Donald was hitting him. He said that when Donald and he left Linsley, having covered him up, he did not know whether he was dead and that he (Harding) had burnt the clothes and footwear which he had on that night and had also burnt the clothes that Donald had on. He denied that there was a discussion that afternoon about murdering Linsley, saying it was “just a spur of the moment thing”.

When he gave evidence Harding said that Donald Gilbert and Linsley were let out of the car by William Gilbert and that Donald Gilbert and Linsley went ahead; while he was away from the other two, he heard sounds like blows, was called to the scene by Donald Gilbert, saw Linsley on the ground and at Donald Gilbert's request helped to cover him up. The jury would have been entitled to reject the story Harding gave in evidence, as being contradicted by his confession of having struck Linsley. The difficulty, however, which the respondent faces is that, in contrast to the case of Donald Gilbert, there was a rational basis on which the jury might have declined to be satisfied that Harding took a physical part in the death of Linsley, by striking him, as he told the police he had done and as he demonstrated for them - the demonstration being recorded on video. One would expect the jury to be inclined to accept those of this appellant's statements to the police which most incriminated him, rather than those which incriminated him less; but the jury might reasonably have had a doubt as to whether any of his statements were reliable. In the course of his address to the jury, counsel for the prosecution who appeared below suggested that they should not regard Harding as a “simple idiot” but as a “calculated and cunning person”. A psychologist who had examined Harding and who gave evidence on a voir dire formed the view that he was of unusually low intelligence; although that was not evidence in the trial I see no reason why we should not have regard to it in determining whether justice has been done. Whether the psychologist's view of Harding's mental powers was correct or not, it is not easy to see what sort of cunning plan could have underlain his choosing to tell such a variety of stories; it seems to me possible that he is in truth very unintelligent and that this was a cause of his vague and varied responses to police interrogation.

But whether that is so or not, I can see no compelling reason for concluding that no reasonable jury could have had a doubt about his personal involvement in the assault on Linsley which caused Linsley's death. It is true that there was other evidence supporting the Crown case that Harding physically attacked Linsley, the principal item being that Harding took pains to dispose of the clothing and footwear he had on, at the time he travelled with the Gilberts and with Linsley on what proved to be Linsley's last journey. Rebecca McGrath told the police that at some time on the relevant afternoon the two Gilberts, Harding and Brannigan had been saying that Linsley had been

“obnoxious” and “had an attitude”; that, if accepted by the jury, might have suggested

to them that when Linsley was later taken for a drive with the Gilberts and Harding they all intended to damage him. But the witness Catherine Ford, who gave uncontradicted evidence of having seen blood on Donald Gilbert's face, hands and chest gave no such evidence in relation to Harding; she was specifically asked whether there was blood on him and answered, “No, there wasn't. Not that I noticed, no”.

The most potentially incriminating evidence from Rebecca McGrath was her admission (after having been declared hostile) of having signed a statement that Donald Gilbert said, “We're taking Whinter (sic) for a drive” and “we're going to do some serious damage” or “we're going to deal with him”. The statement went on to say that McGrath asked Donald Gilbert, “What, are you going to bash him?” - “What, kill him?”, and that Donald Gilbert replied, “What do you think”. In cross-examination the witness said that the relevant conversation was in a whisper. In the judge's summing-up, his Honour told the jury that it was not suggested by the Crown that they could be satisfied that William Gilbert heard this, because of the evidence of McGrath just mentioned; it appears to me that the same applies to Harding.

Again in contrast with the case against Donald Gilbert, there is no evidence of any admission by Harding, on the day of the murder, of having taken part in the killing of Linsley. The jury were told that if the principal offender was guilty of murder then Harding could by s. 8 be deemed to be guilty of murder, but not of manslaughter. The decision of the High Court in Barlow shows this direction to have been incorrect; the judge followed the decision of this Court in Hind and Harwood (1995) 80 Crim.R. 105. If the judge had, instead, directed the jury in accordance with the explanation of s. 8 given by the High Court at 188 C.L.R. p. 10, then that would have given rise to the possibility that, Donald Gilbert being held guilty of murder, Harding would have been guilty of manslaughter only. That could have been done on the basis that the jury were satisfied that there was a plan, to which Harding was a party, to take Linsley out and assault him; that a murder, committed by Donald Gilbert, in fact ensued; but that manslaughter only, not murder, was a probable consequence of the parties' plan. Ignoring Harding's various confessional statements it would not have been out of the question for the jury to fail to be satisfied that the plan to which Harding was party had murder, not manslaughter as the probable outcome. What direction the primary judge might have given with respect to the paragraph beginning “As the operation of s. 8 is limited . . . “ on pp. 13 and 14 of 188 C.L.R., had his Honour been able to anticipate the High Court's decision, is a matter which it is unnecessary to discuss. I have suggested in Donald, Pascoe and Jeffrey (C.A. No. 309 of 1996, C.A. No. 242 of 1997, C.A. No. 154 of 1997, 19 December 1997) that the earlier explanation of s. 8's function, at p. 10 of 188 C.L.R., rather than the later one, should be regarded as governing.

As mentioned above, the appellant relied, in addition to the Barlow point, on the argument that the judge should have excluded certain confessional statements, either on the basis of involuntariness or in the exercise of discretion. In view of my conclusion with respect to the Barlow argument, it is unnecessary to deal with Mr Griffin's submissions about the confessional evidence, in detail. I should say, however, that I see no reason to differ from the trial judge's conclusion, on that aspect of the case.

The issue, although the evidence in the record is extensive, is not in the end a complex one. The fate of the appeal depends principally on whether it would have been possible for a reasonable jury to treat Harding's confession that he personally hit Linsley on the head, and other aspects of his confessions, sceptically. In the circumstances of this case, had they done so, then manslaughter, based on s. 8 of the Code, was a possible verdict. In my opinion, the jury might reasonably have taken the approach just mentioned. I would allow the appeal and order a new trial.