R v MA

[2021] QCA 148

SUPREME COURT OF QUEENSLAND

CITATION:

R v Ma [2021] QCA 148

PARTIES:

R
v
MA, Trung The
(appellant)

FILE NO/S:

CA No 287 of 2018
SC No 1072 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Conviction: 19 October 2018 (Brown J)

DELIVERED ON:

Date of Order: 2 June 2021
Date of Publication of Reasons: 23 July 2021

DELIVERED AT:

Brisbane

HEARING DATE:

2 June 2021

JUDGES:

Sofronoff P and Morrison JA and Flanagan J

ORDER:

Order delivered: 2 June 2021

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – WHERE APPEAL DISMISSED – where the appellant ran a financial advisory business – where the deceased was the appellant’s client – where the appellant embezzled the deceased’s and other clients’ money over a period of four years to the sum of $1.3 million – where the deceased decided to terminate the appellant’s services and intended to discredit the appellant’s business reputation – where the appellant admitted in a police interview to killing the deceased with a hammer – where the appellant was charged with one count of murder and one count of interference with a corpse – where the appellant pleaded guilty to manslaughter and one count of interference with a corpse – where the appellant’s guilty plea to manslaughter was not accepted – where the central issue at trial was whether the appellant had made out a defence of diminished responsibility – where both prosecution and defence led psychiatric evidence regarding the appellant’s state of mind – where the prosecution led evidence as to the appellant’s credit involving embezzling clients’ money, deceiving his business partners and his wife regarding an extra-marital affair – where no direction was sought at trial warning the jury against propensity reasoning as a result of the evidence led on the appellant’s bad character and violent disposition – where the appellant was convicted on both counts – where the appellant appeals the murder conviction on the grounds that the trial judge erred in not warning the jury against propensity reasoning as a result of the evidence led on the appellant’s bad character and violent disposition – whether the trial judge’s non-direction occasioned a miscarriage of justice denying the appellant a fair chance of acquittal

Criminal Code (Qld), s 304A

COUNSEL:

A I O’Brien with N Edridge for the appellant (pro bono)
D Balic for the respondent

SOLICITORS:

No appearance for the appellant
Director of Public Prosecutions (Queensland) for the respondent

1. SOFRONOFF P:  Mr Huegio Bonham was a 63 year old man of some means who lived on the Gold Coast.  In January 2014 he had been a client of Brisbane Money Management, a financial advisory business run by the appellant and his business partner, for a few years.  He had just signed a contract to buy a house and was trying to contact the appellant to arrange a transfer of the necessary money to complete the purchase.  The appellant’s business had control of a substantial part of Mr Bonham’s wealth.  There were difficulties arranging for this simple task and, having had similar disappointments with the appellant’s standard of performance in the past, Mr Bonham decided to terminate the appellant’s services.  What Mr Bonham did not know was that for some years the appellant had been embezzling Mr Bonham’s money.  By January 2014 the appellant had misappropriated over $700,000, the last defalcation having taken place very recently.  The appellant was terrified that Mr Bonham’s engagement of a new financial advisory firm would reveal his crimes.  On 3 February 2014 the appellant arrived unannounced at Mr Bonham’s home and bludgeoned him to death with a hammer.

2. The appellant had an unremarkable schooling in Queensland and then earned a commerce degree at the University of Queensland.  After graduating, he worked for the Commonwealth Bank and the ANZ Bank before buying an interest in Brisbane Money Management in 2008.  Business did not go well.  By 2014 the firm had lost a great deal of money.  This left the appellant anxious and depressed and he was unable to see his way out of his difficulties or to deal with his sense of failure.  Mr Bonham’s stated intention to take away his business was the last straw for the appellant.  He described the killing to a psychiatrist like this:

   “It felt like I was talking to my father.  He was making criticisms and cutting me down and I started to increasingly see my father’s face.  I don’t think I was actually seeing my father’s face, but that was how it felt, because I knew that I was speaking to Hugo Bonham, but increasingly it did feel as if my father was present in the room.  I thought I could hear my father’s voice, but I know it was in my head, saying things like, “Why have you not done this?  Why have you not done that?”  Then the room became blindingly bright, time slowed down into slow motion.  It was a very strange experience.  I felt as if I was outside of myself actually looking at myself.  I could see that I had a hammer in my hand.  I was not entirely sure how I picked it up, but I did have some recollection of having seen the hammer earlier on a bookshelf.  I remember hearing my own voice questioning, “What are you doing?”  I could see it happening from a third-person perspective.  I could see me striking him with the hammer.  I could hear myself questioning, “Why don’t you stop?” but I couldn’t stop myself.  I can recall three strikes to his head.  When I realised he was dead everything suddenly snapped back into real time from slow motion and I knew my life was over.”

3. The appellant was charged with one count of murder and one count of interference with a corpse.[1]  The appellant pleaded guilty to manslaughter and to the charge of interference with a corpse but his plea to manslaughter was not accepted.  The only issue at the trial became whether the appellant had made out a defence of diminished responsibility.[2]

   [1]After killing Mr Bonham, the appellant bought a large box at a Bunnings store, put Mr Bonham’s body into it and put it into a storage unit that he had rented for that purpose.

   [2]Section 304A of the Criminal Code.

4. In those circumstances, the Crown case was a straightforward one.  The prosecution argued that the appellant was a man who was able to embezzle about $1.3 million from half a dozen of his clients over about four years without detection and, while deceiving those clients, he was also able to deceive his business partner, his employees and his wife.  The prosecutor submitted that he was “switched on and on the ball” and that he was “very practiced, very skilled, at deceiving people”.

5. The appellant had volunteered to a psychiatrist that he felt that he had a “dark empty space in the back of my mind” and that he was “constantly fearful that it could become a caged beast”.  He said that “he thought that there was a dark side to him that was in the recesses of his personality … a capacity within him for behaving in a dark way – yes, maybe in a violent way”.

6. The Crown submitted to the jury that the appellant had a strong motive to kill Mr Bonham.  The motive was that there was “a massive fraud hanging over his head and it’s about to rain down on him”.  He showed by his deceptions and by his post-offence conduct in cleaning up the scene of the killing and hiding the body that he had “no compassion whatsoever for the plight of another human being” and that he was “capable of detaching his emotions when he had to”.  The result, according to the prosecution, was that “reality boiled over at some point when he was in Mr Bonham’s residence, that motive which was powerfully driving a man who already had vulnerabilities with his temper, thoughts of violence to others at times”.  The prosecutor submitted that, although he did not disclose his fraud to the psychiatrists who examined him, he “did admit in his evidence in cross-examination that part of the reason he was furious when he struck Mr Bonham with the hammer was that he knew this massive fraud would be discovered”.

7. In support of the defence of diminished responsibility the defence called a psychiatrist, Dr Andrew Aboud.  In rebuttal the Crown also called a psychiatrist, Dr Donald Grant.  The effect of the evidence of Dr Aboud was that the appellant suffered from narcissistic personality disorder and depression and these two disorders each constituted an “abnormality of mind”.  The appellant said that when he was killing Mr Bonham he felt that he was outside his body and that time was slowing down; he saw a bright light and heard his father’s voice and did not feel in control of himself.  Dr Aboud said that these experiences could be regarded as “dissociative symptoms” and constituted a third abnormality of mind that was “built on top” of the other two.  This dissociative state could be defined as “a partial or complete loss of the normal integration between memory awareness sensation and bodily control”.  In cross-examination Dr Aboud accepted that his opinions were based upon the accuracy of what the appellant had told him.  He also gave the following answers in cross-examination:

   “Now, you’ve explained to us that people without an abnormality of the mind can disassociate in circumstances of being in an extremely emotional state?---Yes.

   So people with normal minds who become extremely furious can disassociate?---Yes.

   And, obviously, people in our society differ in their character and their emotional responses?---Yes.

   So some people, for instance, are extremely honest and upstanding, and others are at the other end of the continuum – extremely dishonest and deceptive?---Yes.

   And, of course, the extremely dishonest and deceptive person doesn’t have an abnormality of the mind.  That’s just an unfortunate part of the continuum of normal human nature?---Yes.

   Now, in terms of anger and aggression, you’ve explained that anger also exists on this continuum; that’s so, isn’t it?---Yes.

   And people in our society have different levels of anger and aggressive tendencies?---Yes.

   Now, you’ve described, I think, the spectrum at the top end as a person who is incredibly angry and – probably to the nth degree ---?---Yes.

   - - - angry.  And you don’t, of course, suggest that a person with anger issues who can get angry to the nth degree has an abnormality of the mind?---Not necessarily so.”

8. The Crown’s expert, Dr Grant, offered this succinct conclusion:

   “I think we all have controls that we exercise to keep our emotions within acceptable limits, but if the stressors and the triggers become strong enough, anyone can lose control if the anger builds up enough and in this case and in this case [sic] I think he describes very clearly that the rage and frustration built and built and built until he snapped and couldn’t control it and I think it’s just a – a – It’s a statement about his normal controls were no longer there.  He lost control.  It’s a severe loss of control of temper or rage and that’s not something that I think needs to be couched in clinical terms or as an abnormality of mind.  It’s a – it’s a – it’s an understandable human reaction in certain circumstances.”

9. At the hearing of the appeal, the appellant’s counsel, Mr Andrew O’Brien and Mr Edridge,[3] abandoned the original grounds of appeal and relied upon the following new ground:

   “The learned trial judge erred by not warning the jury against propensity reasoning as a result of the considerable evidence of the defendant’s bad character and violent disposition”.

   [3]Appearing pro bono publico.

10. The appellant did not challenge on appeal that the Crown had established all the elements of the offence of murder and that the only real issue in the case was the appellant’s state of mind when he killed Mr Bonham, namely the state of mind contemplated by s 304A. The appellant accepted that the learned judge, Brown J, correctly directed the jury about lies that only went to credit and correctly warned against a process of reasoning that, because a person had lied, the person was guilty. The appellant also accepted that Brown J had correctly directed the jury against reasoning from an admission of guilt of manslaughter and of interference with a corpse to a conclusion of guilt of murder. The appellant expressly accepted that it was open to the jury to accept the evidence of Dr Grant that there had been no relevant impairment of a capacity of the kind required by s 304A.

11. However, the appellant submitted that “a further direction was required to warn the jury against a form of reasoning that because of his discreditable or criminal behaviour, or violent thoughts, that he has a propensity to commit crime generally or this violent crime specifically”.  No such direction was sought at the trial and it follows that the appellant must establish that, notwithstanding the omission to seek a direction, there has been a miscarriage of justice in the sense that the appellant lost a fair chance of acquittal that would have been open to him.  It is understandable why such a direction was not sought.  The appellant admitted the facts of the killing and so the jury did not have to consider whether the appellant had committed a violent crime.  He had admitted that he had.

12. As a result this was not a case in which there was a risk that the jury might wrongly rely on evidence to conclude that the appellant had a general propensity to commit crimes or to commit crimes of a particular kind and from which an illogical conclusion might be reached that he had done the acts charged.

13. In this case the evidence of the offences of the appellant’s dishonesty and other deceits was led to prove motive.  The Crown was entitled to rely upon that evidence as evidence of a motive to kill.  The existence of this motive to kill could support a finding of an intention to kill.

14. The evidence of the appellant’s capacity for deceit was also relied upon in order to undermine his credibility.  Since the truth of the appellant’s account of his internal experience during the killing lay at the foundation of the favourable opinion of Dr Aboud, the evidence was relevant for that purpose.

15. There was no risk that the jury might reason from the appellant’s admitted acts of dishonesty, and from his violent thoughts, to a conclusion of guilt by way of irrational propensity reasoning. The relevance of that evidence was explained to the jury and no challenge is made on that score. The path to conviction lay only by way of a rejection of the proferred factual premises for Dr Aboud’s diagnosis or a disinclination to accept his evidence as proving the necessary elements of s 304A or by an acceptance of Dr Grant’s evidence in preference to that of Dr Aboud or all or any of these.

16. No direction was sought at trial because it was not required.  The only real issue was the appellant’s state of mind when he killed Mr Bonham and proof of that issue, the onus of which lay on the appellant, depended upon the jury’s view of his evidence in relevant respects and the jury’s view of the evidence of the two psychiatrists.  None of those issues was subject to any risk of tainted propensity reasoning.

17. For these reasons I joined in making the order on 2 June 2021.

18. MORRISON JA:  I have read the reasons of Sofronoff P.  Those reasons reflect my own for joining in the order made on 2 June 2021.

19. FLANAGAN J:  I agree with Sofronoff P.