R v Maycock, Day and Wilton

[1995] QCA 227

IN THE COURT OF APPEAL	[1995] QCA 227
SUPREME COURT OF QUEENSLAND

C.A. No. 108 of 1995
C.A. No. 120 of 1995
C.A. No. 137 of 1995

Brisbane

[R. v. Maycock & Ors]

THE QUEEN

v.

GREGORY WILLIAM MAYCOCK

MARK WALTER DAY and

JASON ROBERT WILTON

Appellants

McPherson J.A.
Davies J.A.

Moynihan J.

Judgment delivered 09/06/1995

Judgment of the Court

APPEALS AGAINST CONVICTIONS DISMISSED

CATCHWORDS:CRIMINAL LAW - s.7(a)(b)(c) Criminal Code - principal offenders -

whether inferences of intention open on the evidence.

Counsel:	Mr S Herbert Q.C. for the appellant Day
Mr T Carmody for the appellant Maycock
Appellant Wilton appeared for self
Mr P Ridgway for the respondent
Solicitors:	Bowen Lagois for the appellant Day
Legal Aid Office for the appellant Maycock
Appellant Wilton appeared for self
Director of Public Prosecutions for the respondent

Hearing date: 10 May 1995

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 09/06/1995

Each of the appellants appeals against a conviction for the murder of a fellow inmate of the Lotus Glen Correctional Centre. The conviction was on the basis that each of the appellants, who were tried together, was a principal or an aider in terms of S.7(a)(b)(c) of the Code.

Maycock and Day were represented by counsel before this court. Wilton appeared in his own behalf. He stated that two of the bases of complaint about his conviction were not dealt with by his notice of appeal, although he asserted that he had instructed a solicitor who visited him at the jail in respect of them. The court permitted him to agitate his concerns in respect of the issues he said were omitted from the notice of appeal. These related to the prejudicial effect of evidence at the trial about a metal rod which had been recovered from the waste water pipe of a cell occupied by him, and a desire to call evidence from a previous occupant of the cell who he anticipated would say that he (the previous inmate) had concealed the rod there.

The appellants did not give evidence at the trial but various records of interview between each of them and investigating police officers were admitted into evidence in the form of tape recordings.

No complaint was made about the summing-up. Rather it was submitted, although formulated in various ways, that the evidence was insufficient to sustain the verdict. This of course applied to each appellant.

It was not particularly controversial at the trial, and the jury was entitled to conclude, that on the day of the murder, 12 September 1994, the three appellants had a long meeting in Maycock's cell. They then proceeded together to the cell of the murdered man, Dng Van Nguyen for the purpose of collecting a gambling debt, expressed as 80 packets of tobacco valued at $9 each, which Maycock alleged the murdered man owed him.

Wilton spoke of the purpose of the visit as being to "knock" Nguyen. The jury was entitled to conclude from the whole of his record of interview that Wilton understood that to mean kill him. They were also entitled to conclude he played the major role in subduing Nguyen and inflicting the violence to which the murdered man was subjected. Maycock and Day, in their respective records of interview, spoke of the purpose of the visit in terms of its being to give Nguyen a flogging but denied being party to any intention to kill.

It could not have been seriously in dispute at the trial that Nguyen died as a result of multiple stab wounds inflicted on him in his prison cell while each of the appellants were present. The murdered man suffered twelve stab wounds to the front of his chest, mainly over the breastplate. These wounds included one which passed through the heart and was most likely the fatal wound, although severe injuries were inflicted to other vital organs. A further six wounds were found in the area of the left side and the abdomen. There were at least three areas of trauma on the face and marks around the neck consistent with pressure applied by an arm around the neck or a grabbing from the front. The former explanation was consistent with an account Wilton gave of his role in events.

A steel tine from a garden fork and a screwdriver, both recovered from burial (as the jury were entitled to conclude) in the prison gardens as a result of the concerted activities of the accused men after the killing, were admitted into evidence. Both implements responded positively to tests indicative of the presence of blood, and the fork tine was, according to evidence which the jury was entitled to accept, capable of causing many but not all of the wounds found on the dead man. The metal rod to which earlier reference has been made was recovered from a waste water pipe in Wilton's cell. It did not respond positively to tests indicative of the presence of blood but was of a dimension capable of producing wounds found on the murdered man which could not have been produced by the other implements.

The fatal attack was prolonged. The attack may be thought of as having taken place in three distinct phases. The cell was a fairly confined space. Nguyen was sitting at a desk in the cell when the three men entered it. He was attacked there and fought his way into the shower cubicle where he endeavoured to take refuge. That attempt proving futile, he fought his way back out into the main area of the cell and was left for dead by the three men, where he was found lying on the floor in the vicinity of the bed. The evidence is not definite as to the stage at which a fatal wound was inflicted.

The case went to the jury on the basis that each of the appellants admitted an involvement in the murder which, if done with knowledge that the murdered man was to be attacked with weapons, and to assist in the attack, could found a conviction of murder.

Maycock had stated in his record of interview that the fork tine was bandaged to Wilton's hand or arm. It was said to follow that the implication that it was concealed from Maycock, until it was used without warning at the scene, could not be eliminated. That by no means follows. The evidence was that the three accused had access to a day key which permitted them to move freely from Maycock's cell to the murdered man's cell. There was no evidence directed to an inference that it was necessary to conceal the weapons from correctional officers in the passage from Maycock's to Nguyen's cell. An inference was open, having regard to the nature of the fork tine, that it might be more effectively and safely (from the point of view of the user) used if bandaging was involved. Put shortly, it was by no means the case that an implication that the weapon was concealed from Maycock until Wilton commenced to use it could not be eliminated.

The records of the interviews given by each of the accused were a mixture of inculpatory and exculpatory statements. The trial judge directed the jury that they could look at the role that each accused admitted to playing, and reject the attempts to exculpate themselves, and so "readily reach the conclusion that each of them is involved in the murder of the deceased". The trial judge also directed the jury to the effect that they were entitled to regard each accused as having lied, and to regard the lies as springing from a consciousness of guilt and hence capable of founding an inference of guilty. Neither direction given can be faulted - it was not suggested in argument it could be.

Something has already been said of what Wilton is recorded as having said about the purpose of the event. Day was recorded as having said to the effect that his role was to be look-out and that when he heard the violence commence he could not leave his post. The learned trial judge, in this context, instructed the jury they had to be satisfied the fatal blow had not been struck at that time. Day cannot complain of this direction. It was open to the jury to infer he went there to fulfil the role of look-out.

There was ample evidence upon which the jury was entitled to conclude that each of the accused murdered Nguyen. The whole of the evidence was capable of founding a conclusion that any inference consistent with the innocence of a particular accused had been eliminated. There is nothing surprising or unreasonable in the verdict against each accused and the appeals should be dismissed.