R v McKinnon

[2002] QCA 185

[2002] QCA 185

COURT OF APPEAL

McPHERSON JA
MACKENZIE J
ATKINSON J

CA No 305 of 2001

THE QUEEN

v.

PAUL ERIC WILLIAM McKINNON  Appellant

BRISBANE

..DATE 30/05/2002

JUDGMENT

McPHERSON JA:  I will ask Justice Atkinson to deliver the first judgment.

ATKINSON J:  This is an appeal by Paul Eric William McKinnon against a conviction on 4 July 2001 for the murder of his former de facto partner, Jane Horsbourgh.  At the trial it was not disputed that the appellant had unlawfully killed Ms Horsbourgh by strangling her in the early hours of the morning of 29 March 2000.  He admitted the killing in a "000" phone call immediately after the incident and later in a phone call in which he surrendered to the police.  The strangulation was also witnessed in part by the deceased's six year old daughter who participated in an interview with police on the morning of 29 March 2000.

This appeal is on the sole ground that the conviction was unsafe and unsatisfactory because there was insufficient evidence from which the jury could safely draw an inference of intent to kill or do grievous bodily harm.  The appellant contends that a verdict of manslaughter should be substituted for the verdict of murder.  It is therefore necessary to review the evidence in the trial to determine whether there was material from which the jury was entitled to reach the verdict of guilty of murder.

The evidence led at the trial disclosed that there had been a four year relationship between the appellant and the deceased which broke down towards the end of 1999.  The appellant moved out of the deceased's home around Christmas 1999.  He moved back in after an attempted reconciliation in February 2000 and then on 20 March 2000 he moved out of the house again.

There was evidence that the split between the two was acrimonious.  Tracey O'Loughlin, a friend of the deceased, gave evidence of a telephone conversation with her on 26 March 1999.  In that conversation, Ms Horsbourgh told Ms O'Loughlin that the appellant had come to her house, called her a slut and a whore and had threatened to kill her.  The next night, 27 March, Ms O'Loughlin had another conversation with
Ms Horsbourgh who told her she had spoken to the appellant, that he had been polite and everything was all right. The evidence of these conversations was admissible, with appropriate warnings, under section 93B of the Evidence Act.

On 28 March 2000, Ms Horsbourgh was visited at her home by a friend, Mr Stephen Auld.  The appellant also arrived at the house at about 6 p.m.   When the appellant arrived, Mr Auld left telling the deceased he did not want to aggravate the situation.  When the appellant was interviewed by the police he admitted that he was concerned about the deceased being "flirty" with Mr Auld and was jealous, hurt and angry about
Mr Auld being at the house.

Mr Auld spoke to the deceased again later that evening.  She told Mr Auld what had happened after he had left the house.  She told him that she had asked the appellant to leave and had asked him to return her house keys.  The appellant had then taken a swipe at her and told her that "if he didn't get her, somebody else would".  Gabriel Gostevsky, the deceased's neighbour, gave evidence that he heard the deceased shout, "If you come back again I will call the cops." 

The appellant was seen later that night at the Kuraby Hotel where he worked.  He spoke with a friend named Kevin Crosswell.  When they parted company Mr Crosswell said, "I will catch you later".  The appellant, "No, you probably won't.  I'll either be on the road or in gaol". 

The appellant returned to the deceased's home in the early hours of the morning of 29 March 2000.  He parked his car some distance away and out of sight instead of in the spot where he usually parked in the driveway.

The appellant told the police in his record of interview what he said happened at the house.  He told the police that he and the deceased had sex.  Afterwards, the deceased told him that she loved but that she wanted him gone.  He then put his hands around her throat and started to strangle her.  He put his knees on her arms to stop her struggling.  She continued to resist him and they fell off the bed and he lost his grip on her throat.  He then took her by the throat again and, in spite of her struggles, continued to strangle her.

A neighbour, Ms Helen Edser, was woken at about 5.30 a.m. by someone screaming "Let me go" and "Help".  Ms Horsbourgh's six-year-old daughter was woken by her mother screaming.  She ran to her mother's bedroom where she saw the appellant choking her mother who was on the floor struggling to get up.  Before he left the house the child heard the appellant say, "Sorry", to the deceased.  The appellant denied that he had intended to kill the deceased but said he was angry with her and jealous.

After Ms Horsbourgh lost consciousness the appellant moved her to the bed and attempted to resuscitate her.  When he was unsuccessful he made an anonymous "000" phone call.  He told the operator, "I've killed my girlfriend".  He then left the house and Ms Horsbourgh's daughter saw him jumping over the back fence.  Later in the day the appellant called the police and surrendered himself.  He told him, "I killed me girlfriend this morning in Woodridge."

The police arrived at the house at 5.47 a.m. and found Ms Horsbourgh naked and unconscious on the bed.  She was taken to hospital but did not regain consciousness and died on 31 March 2000.  When the appellant was informed by a police officer that she had died, he replied, "I don't give a fuck.  I'm glad the slut is dead." 

A forensic pathologist, Dr Ansford, gave evidence concerning his findings at the post-mortem.  His opinion was that the death was caused by cerebral hypoxia.  He concluded that there must have been significant pressure applied to the neck for a few minutes.  He thought it was highly unlikely that pressure had been applied for less than a minute.

Although the neck and tissue injuries were consistent with pressure for a short duration, his opinion was that death could only have been caused if there was relatively sustained compression.  The state of the neck and tissue injuries were explained by the fact that she had remained alive for some time after she was injured and in his opinion in such a case the injuries may look less obvious than they were immediately after the incident.  The expert testimony of Dr Ansford was not contradicted.  His testimony regarding the length of time involved in the strangulation is a significant factor from which the jury could have inferred an intention to kill or do grievous bodily harm. 

There was evidence that the appellant had been drinking alcohol on the night of the incident.  When Mr Auld saw the appellant early in the evening he appeared to be drunk.  Mr Bower-Miles, a friend of the appellant, said he saw him between 5 p.m. and 7 p.m. on the evening of 28 March and he looked "pretty drunk".  However, the duty manager at the Kuraby Hotel, Mr Seeto, was the last person to see the appellant before he went to Ms Horsbourgh's house.  He gave evidence that at around 1.05 in the morning of 29 March the appellant may have been consuming alcohol but did not appear drunk.

However, the question before the jury was not limited to whether the appellant was intoxicated but whether that intoxication deprived him of the capacity to form the relevant intent.  The appellant's actions when he went to the deceased's house are evidence of purposeful and competent behaviour.  He drove his car to the deceased's house, decided to park some distance away, had sexual intercourse with the deceased, engaged in a protracted struggle with her, phoned "000", dressed himself and departed by climbing over the back fence.

The evidence led at trial was sufficient for a jury to conclude beyond reasonable doubt that the appellant had formed an intention to kill or do grievous bodily harm to the deceased.  He had threatened to kill the deceased and he admitted he was angry with her.  It appears that when he was at the Kuraby Hotel early in the night he was contemplating some action that would require him to either be on the run or in gaol.  When he went to the deceased's house he parked a street away where his car could not be seen suggesting that his purpose in going to the house was not innocent.  He admitted to engaging in a protracted struggle with her during which he lost his grip on her throat and then regained it.  When he dialled "000" he clearly believed that he had killed the deceased.

The appellant's efforts to resuscitate the deceased and his call to the emergency services indicate that he may have regretted his actions but do not bar the conclusion that he formed an intention to kill at the time that he strangled the deceased.  The jury was entitled to find that the only rational inference open was that he intended to kill the deceased or do her grievous bodily harm.  The conviction for murder is therefore not unsafe and unsatisfactory and the appeal should be dismissed.

McPHERSON JA:  I agree.  In my opinion the applications for leave to appeal against conviction and sentence should be dismissed.

MACKENZIE J:  Subject to one minor qualification I agree with the outcome.  It was said that the question before the jury was not whether the applicant was intoxicated but whether that intoxication deprived him of the capacity to form the relevant intent.  Of course, if he were deprived of the capacity to form the relevant intent he could not form it.  The real question, it seems to me, is whether he did actually form the intent to notwithstanding the consumption of alcohol.  There is ample, almost overwhelming evidence to be found in the case that he did in fact form the intent and on that basis I agree in the outcome.

McPHERSON JA:  The order is that the applications for leave to appeal against conviction and sentence are dismissed.

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