R v Kidner

[2001] QCA 79

[2001] QCA 79

COURT OF APPEAL

DAVIES JA
MOYNIHAN J
AMBROSE J

CA No 268 of 2000

THE QUEEN

v.

PATRICIA KIDNER

BRISBANE

..DATE 05/03/2001

JUDGMENT

DAVIES JA:  The appellant was convicted after a trial in the Supreme Court on 3 October last of murdering Priscilla Doomadgee.  Her grounds of appeal in her notice of appeal were:

(1)The trial Judge erred in not allowing the jury to consider self-defence; and

(2)The verdict is against the weight of evidence.

On the hearing of this appeal the appellant's counsel was given leave to amend to add the following grounds of appeal:

(1)The learned trial Judge erred in admitting the evidence of Darren Murphy concerning the appellant's moving away from the police vehicle as evidence of flight;

(2)The learned trial Judge failed to give adequate directions to the jury concerning flight;

(3)A miscarriage occurred by the admission into evidence of the letter in Exhibit 8 without any editing of irrelevant but highly prejudicial passages; and

(4)The verdict of the jury was unreasonable and thus the conviction was unsafe and unsatisfactory.

The appellant and the deceased were both residents of Palm Island and the events which gave rise to the deceased's death occurred there at the home of Delwyn Snyder.  The deceased was the girlfriend or de facto wife of Snyder.

On the afternoon in question Snyder and the appellant had been drinking alcohol together at his residence.  When the deceased returned to the residence, having consumed a substantial quantity of alcohol elsewhere, an argument developed between the appellant and the deceased at least partly due to the deceased's jealousy and anger at finding the appellant there with Snyder.

Initially Snyder and the deceased went into a back room of the house to argue but the appellant followed them into that room and offered to fight the deceased.  They started to fight, punching each other and pulling each other's hair.  Snyder tried to break up the fight but was unsuccessful.  The deceased apparently had a rock in her hand at some stage with which she hit Snyder.  Apparently she also hit the appellant with it.

According to Snyder the appellant said to her, "You wait here.  You want to hit me with a weapon.  I'll go and get a weapon too."  The appellant then left the room and another witness heard her say that she would stab Priscilla with a knife.  That witness described the appellant as "real drunk".  Another witness heard the appellant during the period I have described in which she was in the room with the deceased saying to her, "Don't muck around with me.  I'm knife happy."

Having left the room for some time the appellant returned to it with a knife.  At this point the deceased was sitting down.  The appellant then forced the deceased's face down by the neck and stabbed her in the back.  Snyder described it as "digging at her".  In fact there were, as Mr Chowdhury concedes, four stab wounds in her back and neck.

The deceased was later discovered to have two penetrating wounds in the body cavity deflecting around a rib.  The fatal injury apparently punctured a lung, another nipped the aorta.  There was another blood wound to the trunk and there was a superficial incision into the back of the scalp.

That was substantially the evidence before the Court although there was some further evidence to which I will refer in a moment concerning the appeal grounds of flight and the letter, Exhibit 8.  It is convenient first to consider the specific ground of appeal which relate to the letter, flight and self-defence and then finally the question of whether the verdict was unsafe and unsatisfactory or, as was put in the original notice of appeal, against the weight of evidence.

First the letter.  While the appellant was in prison she wrote a letter which was intercepted by the authorities and tendered as part of the prosecution case as containing admissions against interest by the appellant.  Indeed they are admissions which the jury could reasonably have construed, not only as admissions that she killed the deceased but as admissions that she intended to kill her or do her grievous bodily harm, because in the letter she referred to "Dellie", that is the deceased's de facto husband or boyfriend, knowing that she, the appellant, was going to do something bad.

At the trial the letter was admitted in its entirety without objection from the appellant's counsel.  What is contended is not that it did not contain admissions of having killed the deceased or indeed that it did not contain admissions relevant to the intent with which she did so, but that it contained some irrelevant and prejudicial material which should have been excluded notwithstanding a failure of counsel to object to it.

There is no doubt that the letter contained some threats to other members of the Doomadgee family.  For example one of the examples given by Mr Chowdhury from the letter is that the appellant said, "I won't let no cunts touch me.  I'll make sure they won't come out of alive, that's for sure."

The learned trial Judge directed the jury to ignore references in the letter to what the appellant would like to do to other persons and there is much to be said for the view that there is no reason to believe that the jury ignored those directions.  But in any event, it seems to me, the case against the appellant was otherwise so strong that the admission of evidence, even if the jury might have taken it into account as being prejudicial to her, did not result in a substantial miscarriage of justice.

As I have already indicated, in the letter itself there was evidence consistent with an intent to kill or do grievous bodily harm and, as I have already indicated, there was other evidence which was very strongly consistent with that intent in particular the fact that the appellant stabbed the deceased in the back in the circumstances in which the deceased was seated with her back turned to the appellant when the blows were delivered.

Secondly flight.  There was evidence that the appellant, as she put it in her letter, "took off" when the police arrived at the scene.  The point which Mr Chowdhury for the appellant makes is that whilst this may have entitled the jury to infer that the appellant may have had a guilty mind it was equally consistent with their having a guilty mind about having killed the deceased as with having a guilty mind about killing her with additionally an intention of doing so or of doing grievous bodily harm to her.  That submission, in my opinion, has considerable weight.

That does not, in my opinion, assist the appellant in respect of the ground of appeal objecting to the admission of the evidence.  At the time it was admitted there had been no admission that the appellant had killed the deceased and it was plainly necessary for the Crown to prove that fact and flight was plainly relevant to that issue.

His Honour, in his directions to the jury, indicated in effect that he thought this evidence was unhelpful in any question of proving guilt.  However, in my opinion, his Honour should have directed the jury in effect that the evidence was equally relevant to proving merely that the appellant killed the deceased, as it was to prove that the appellant killed the deceased with the intention of doing grievous bodily harm to the deceased, and consequently that it was not relevant to prove that the appellant at the relevant time had the intention of killing or doing grievous bodily harm to the deceased.

However, the question which must then be answered is whether the failure to give such a direction resulted in a  substantial miscarriage of justice.  In my opinion it did not.  The other undisputed evidence in the case established, in my opinion, a very strong case of murder. 

The admission when she came outside that she would stab Priscilla with the knife, her return to the room with the knife, the fact that the deceased was seated and had her back turned to the appellant when the blows were delivered and the terms of the admissions in the letter, the passage which I have already indicated and a passage in which she said, "So I killed the dead slut", showed, in my opinion, beyond any doubt that the appellant intended to kill the deceased.

The third specific ground of appeal was self-defence.  That is that the learned primary Judge ought to have directed in respect of self-defence.  But in my opinion what I have said so far indicates that there was no basis for a direction on self-defence.  The deceased returned to the room with a knife intending to assault the deceased with it and, as the jury justifiably found, with the intention of doing so fatally.

It follows, in my opinion from what I have already said so far, that the jury's verdict was unsafe or unsatisfactory and I would, therefore, dismiss the appeal.

MOYNIHAN J:  I agree.

AMBROSE J:  I agree.

DAVIES JA:  The appeal is dismissed.

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