R v McKechnie

[1997] QCA 230

IN THE COURT OF APPEAL

[1997] QCA 230

SUPREME COURT OF QUEENSLAND

C.A. No. 272 of 1996.

Brisbane

[R v. McKechnie]

T H E Q U E E N

v.

ANDRE McKECHNIE

Appellant

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Macrossan C.J.
Pincus J.A.

Davies J.A.

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Judgment of the Court

Judgment delivered 1 August 1997

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APPEAL AGAINST CONVICTION DISMISSED
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CATCHWORDS: CRIMINAL LAW - appeal against conviction - murder - whether appellant’s legal representatives at trial did not satisfactorily defend appellant and failed to follow appellant’s instructions - whether Court of Appeal should hear new evidence regarding appellant’s diminished responsibility.

Counsel:	Mrs L Clare for the respondent. The appellant appeared on his own behalf.
Solicitors:	Queensland Director of Public Prosecutions for the respondent. The appellant appeared on his own behalf.
Hearing dates	23 & 24 July 1997
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 1 August 1997

This is an appeal against conviction. The appellant was charged with having murdered one Otto Ernest August Kuhne on 28 December 1994. He pleaded not guilty and, after a trial which lasted three weeks, was convicted of murder. The notice of appeal puts forward eight grounds which may be summarised by saying that the appellant complains that the verdict was unsafe, that his legal representatives made mistakes, that the judge’s summing-up was defective and that new evidence is available "in relation to diminished responsibility and other matters". As the argument developed, it appeared that the appellant’s principal ground for attack on the conviction was that his legal representatives had not satisfactorily performed their task of defending him, and more particularly had failed to follow his instructions. Little was said about the other bases of appeal set out in the notice of appeal, although the appellant did appear to press the notion that this Court should hear fresh evidence with respect to the question of diminished responsibility.

The legal representatives whose conduct is in question are Messrs Boe & Callaghan, solicitors, and Mr Cuthbert of counsel; the solicitors are a firm who are very experienced in criminal defence work and Mr Cuthbert has appeared in many criminal trials during his long career.

Forty-seven witnesses were called at the trial, the principal factual issue litigated there being whether or not it was the appellant who killed Kuhne. No witness claimed to have seen the killing, which was due to stab wounds, and the Crown relied upon the proposition that an inference of guilt should be drawn from a considerable collection of evidence of motive, opportunity and other matters. Although contested by cross- examination, the Crown case was not contradicted by any evidence called on behalf of the appellant. After the Crown case was closed there occurred the following discussion:

"HIS HONOUR: I’ll call on your client Mr Cuthbert. Andre McKechnie, do you intend to adduce evidence in your defence, that is give or to call any evidence in your defence. Before you answer, your counsel can respond before you do.

ACCUSED: No I don’t sir.

MR CUTHBERT: The defence doesn’t intend to go into evidence in this case Your Honour.

HIS HONOUR: Yes.

MR CUTHBERT: Thank you Your Honour.

HIS HONOUR: Members of the jury, that means that all of the evidence
in the trial has now been concluded and the next stage is final addresses.
. ."
Although it seems plain that the appellant and his counsel both indicated that

there was no intention to call evidence, the appellant informed us that he understood that evidence relevant to the question of diminished responsibility was to be led, either at or after the trial. In what appeared to be a slight variation of this claim the appellant informed us that he had instructed his counsel to call evidence; as to the passage from the transcript which has been quoted, the appellant explained that "it wasn’t of my own free will that I decided not to give evidence, it was because there was no evidence to support my own testimony". As to what might be called a further alternative plea, the appellant told us that he was not in a fit state to give instructions.

It seems plain from the record that no defence raising a question as to the mental state of the appellant was put forward. The subject was mentioned during discussion between counsel and the trial judge, before any evidence was called. Mr Meredith, who appeared for the Crown at the trial, told the judge that Mr Cuthbert had asked that the Crown not lead evidence "relevant to insanity or diminished responsibility defence as to medication" being a subject apparently referred to in a witness statement which was then being discussed. According to the record, the following discussion ensued.

"HIS HONOUR: Oh yes, ‘He further stated he was on medication to control his fits of anger.’ Mr Cuthbert’s asked for that to go out and you’ve agreed to it?

MR CUTHBERT: I was asked of my raising of insanity and diminished.

MR MEREDITH: Well I won’t be leading it, but I don’t want to be accused later of not leading evidence that might be admissible."

It is unlikely that Mr Cuthbert made the precise remark attributed to him; but it seems clear that, at that stage at least, it was agreed that the Crown should not lead evidence in anticipation of a defence based on the appellant’s mental state. When the Crown closed its case, the position remained that it had not called evidence on that topic; as has been pointed out, the defence called no evidence.

We were urged by the appellant, who appeared before this Court on his own behalf, to consider material which he wished to place before us designed to prove that at the time of the killing he was in an abnormal mental state or perhaps even suffering from a mental illness. No such suggestion was made at the trial. When, after the verdict, the appellant was given an opportunity to make a statement he remarked:

"PRISONER: I didn’t do it, Your Honour. I swear to God and to the people in the gallery that I’m innocent. He was my father. He was my father and I’ve been convicted for it. I have nothing else to say, sir."

This appears to be perfectly consistent with the line of defence run. The appellant told us in effect that what he meant was merely that he was not guilty of murder because he had not the requisite intention; but the statement "I didn’t do it" seems hardly capable of that construction.

The solicitor having the conduct of the matter in the office of Messrs Boe & Callaghan, subject to the supervision of Mr Callaghan was a Ms Moynihan. In circumstances which it is not necessary to recount a statement of Ms Moynihan summarising her knowledge of the conduct of the appellant’s defence was tendered and supplemented by oral evidence from her. The appellant cross-examined Ms Moynihan and a number of documents relevant to the matter of the communications which passed between the appellant and his solicitors were tendered. Of these, the most useful is Exhibit A2, a collection of notes and copies of notes either made by Ms Moynihan to record instructions given from time to time during the trial, or made by the appellant himself for the assistance of his solicitors and counsel. These documents show that the appellant took a close interest in the details of the evidence being given and was able to make suggestions as to what questions should be asked of witnesses. These suggestions appear to have been carefully thought out and well expressed.

Ms Moynihan’s evidence was to the effect that she had a number of discussions with the appellant in the weeks leading up to the trial. It is necessary to set out part of this evidence:

"I attended Mr McKechnie next on . . . 29 March 1996. I took Mr McKechnie through his draft statement to finalise his instructions. After completing that process Mr McKechnie indicated some concerns he had and he seemed to be wanting advice on how to approach the case. He talked of a possible defence of accident if, for instance, he was there at the time of the killing. I expressed that I could not determine the success of anything he presented as I was not the jury. I mentioned to him the possibility of the defences of insanity and diminished responsibility being raised and I also discussed with him the fact that if they were raised the matter may be referred to the Mental Health Tribunal. He said that he had enough to prove that he was insane but he wanted to be advised on whether or not he should promote those defences. He said that he did not think he was insane. He asked if it was better for him if he was sane or insane".

A discussion took place four days later at which the appellant, Mr Callaghan and Ms Moynihan were present. According to Ms Moynihan’s evidence, part of the discussion on that occasion was as follows:

"Mr McKechnie asked Mr Callaghan what instructions he should give to get the best defence. Mr Callaghan then went through the defences firstly advising him as to the defence of accident. He said that he thought this was a speculative defence and that he did not think it arose on the facts. He then went on to discuss the defence of insanity. He explained that it was a whole defence . . . Mr Callaghan then explained the defence of diminished responsibility . . . Mr McKechnie said that he did not wish to pursue diminished responsibility."

A typed statement taken by the solicitors from the appellant, which was in existence at the time of these discussions, is in evidence (Exhibit A5) and it includes some hand- written additions made by the appellant. The offence of murder was alleged to have been committed on 28 December 1994. The statement contains a considerable amount of discussion about the events of that day, but includes no suggestion that the appellant had been present at the place and time where and when the offence had, according to the Crown case, been committed. The submissions which have been made to this Court by the appellant include assertions that he was indeed present at the relevant place and time and that he then had a knife; the solicitors were never told of these matters.

One may safely conclude from the circumstance just mentioned and the evidence of Ms Moynihan that the appellant was guarded in his instructions to the solicitors. He was apparently uncertain whether it was better to attempt to mount a defence based on the proposition that he was in such a mental state at the time of the killing as not to be guilty of murder, or simply on the proposition that, as he told the Court at the end of the trial, "I didn’t do it". In the end, although apparently with some misgivings, the appellant must have decided to adopt the latter course. It is impossible to accept that he instructed the solicitors to run a defence of diminished responsibility or that he instructed them to have witnesses called to support such a defence. The evidence before us includes, as mentioned above, written records of instructions given during the trial. Some of these exhibited fairly sophisticated reasoning about the conduct of the case; none includes any reference to the possibility of calling evidence with respect to the appellant’s mental state. There is no reason to think that when the appellant himself told the judge, at the conclusion of the Crown case, that no evidence was to be given or called in his defence, he was acting under any misapprehension.

The case was, as appears from the material we have seen, one in which the defence of diminished responsibility might well have been considered; the evidence shows that it was the subject of some substantial discussion between the appellant and his solicitors. It cannot be accepted that the appellant, who appears to be an intelligent, not to say cunning, person was unable to comprehend the implications of the various possible lines of defence open, or that he did not fully understand that what was happening was that the trial was being fought simply on the basis that the Crown could not prove that Kuhne’s killer was the appellant. That tactic having failed, the appellant wishes now to pursue the possibility of escaping responsibility for the death of Kuhne, or reducing the offence of which he has been convicted to manslaughter, by having this Court of Appeal form its own conclusions about what he says is evidence relating to his contacts with psychiatrists in the past. This would not be an appropriate course. This Court went at the hearing as far as it reasonably could - perhaps further - in the direction of permitting an investigation of circumstances extrinsic to the record; the only reasonable conclusion open is that the appellant, in the end, eschewed reliance upon any psychological or psychiatric difficulties and chose to have the matter placed before the court of trial, at considerable length, as raising only the single issue of whether or not the appellant killed Kuhne.

The appeal must be dismissed.