R v Hughes

[1993] QCA 494

IN THE COURT OF APPEAL  [1993] QCA 494
SUPREME COURT OF QUEENSLAND
  C.A. No. 377 of 1993
Brisbane
[R. v. Hughes]
BETWEEN
  T H E   Q U E E N
  v.

BRUCE JAMES HUGHES
  (Appellant)

The President
  Mr Justice Pincus
  Mr Justice Williams

Judgment delivered   7/12/93

Judgment of the Court.

APPEAL DISMISSED.

CATCHWORDS        Criminal law - murder - provocation - verdict of murder not unreasonable on the evidence.             

Counsel:          Mr Rafter for Appellant
                  Mr Butler for Respondent

Solicitors:Legal Aid Office for Appellant            

Director of Prosecutions for Respondent

Hearing date:     6 December 1993

IN THE COURT OF APPEAL

QUEENSLAND

C.A. No. 377 of 1993

Brisbane

Before    The President
         Mr Justice Pincus
         Mr Justice Williams

[R. v. Hughes]

T H E   Q U E E N

v.

BRUCE JAMES HUGHES
  (Appellant)

JUDGMENT OF THE COURT

Judgment delivered the Seventh day of December 1993

On 29th September 1993 in the Supreme Court at Brisbane, the appellant was convicted of murdering his former de facto wife.  In the notice of appeal the only ground relied upon was stated in the following terms:  "That in all the circumstances the verdict was unreasonable especially because of the evidence of provocation".  That was expanded in further particulars of the ground of appeal to the following:

"The evidence which raised the defence of provocation was such that a reasonable jury should have found that the prosecution had not excluded the possibility that I acted on provocation and therefore should have found me guilty of manslaughter only."

At the trial there were two defences raised. The appellant gave evidence in support of each. Firstly, he contended that in delivering the blows which caused death he had no intent to kill; secondly and alternatively, he contended that at the time he was acting under provocation as defined in s. 304 of the Criminal Code.
     No complaint was made at the trial, nor on the hearing of the appeal, as to the adequacy of the summing up insofar as it dealt with both defences. 
     In those circumstances in order to succeed on this appeal the appellant must establish that on the evidence no reasonable jury could have convicted of murder.
     The evidence established that the appellant visited the deceased woman's residence at about 3 a.m. on 3rd April 1993.  It is not clear how he gained entry; he told a highly improbable story that using sign language (she was deaf and dumb) the deceased invited him up to her flat.  According to a record of interview with investigating police officers, the appellant said that an argument developed and the deceased "belted" him.  It would appear that the argument was to some extent related to the conduct of the deceased in refusing to allow the appellant to see their baby.  In that record of interview the following passage appears:

"Anyway, she came off the bed and started trying to fight me and I tried to hold her and somewhere along the line I picked up something and hit her across the head.  I think it was a piece of timber.  Now I just hit her a few times.  I don't know how many times, then I just pushed her back on the bed and left her there and the baby was alright and I panicked and left."

In oral evidence he claimed the deceased assaulted him in an endeavour to get him to leave.  He said that in the course of their struggle the baby's cradle was knocked over and the baby fell onto the floor. The deceased continued to fight with him and as it was necessary for him to get past her to pick up the baby he hit her a number of times with a piece of timber.
     Clearly the appellant realised that he had seriously injured the deceased but took no steps to obtain medical assistance for her.  He fled the scene leaving the baby with her, although on one version given in a record of interview he nursed the baby for up to an hour before leaving.
     The evidence strongly suggests that the deceased received her injuries prior to 5 a.m.; the appellant returned to the scene about 8 a.m. and purported to find the deceased bashed in her unit.  The appellant took some steps to conceal his involvement ("make it look like a robbery") and suggested that an intruder was responsible for what had happened.  In his first interview with the police he maintained he did not know what had happened.  It was in the course of later interviews that he admitted responsibility for her injuries. 
     Dr. Ansford, a specialist forensic pathologist, gave evidence that the post-mortem examination revealed there would have been a minimum of at least two blows to either side of the head caused by a blunt instrument.  Given the degree of fractures to the skull it was his opinion that considerable force would have been used. 
     Other evidence suggested that the appellant was concerned for the baby's welfare when he discovered that the deceased proposed taking the child on a trip to Longreach shortly after she had been discharged from hospital after treatment for an illness.   
     There were many inconsistencies between the appellant's evidence and answers given in the course of his interviews with investigating police.  It is not necessary to detail those matters.
     This was a strong prosecution case of murder.  In the circumstances a reasonable jury could well have concluded that the killing was intended and that the Crown had excluded provocation.  The circumstances in which the appellant came to visit the deceased, the severity of the attack upon her, and the conduct of the appellant afterwards provided a solid basis upon which a jury could be satisfied beyond reasonable doubt that the only proper verdict was guilty of murder.  The verdict returned cannot be said to be unreasonable.
     The appeal should be dismissed.