R v Meninga

[1992] QCA 463

IN THE COURT OF APPEAL [1992] QCA 463

SUPREME COURT OF QUEENSLAND

C.A. No. 248 of 1992

T H E Q U E E N

v.

BEVAN ERROL MENINGA

(Appellant)

JUDGMENT - THE COURT

Delivered the Eighteenth day of December 1992

This is an appeal against a conviction of murder. A young woman was beaten to death on 11 May 1991 and it is common ground that it was the appellant who killed her. The issues the jury had to determine were whether the appellant was proved to have

the requisite intent to justify a conviction of murder and, secondly, whether the partial defence of diminished responsibility under s.304A of the Code had been established. In the end, the only substantial issue was the former, as the diminished responsibility defence was not pressed;

nevertheless, the judge put that defence to the jury.

The Crown undertook to prove that the appellant was guilty of murder in that he intended to cause the woman's death or to cause her grievous bodily harm: s.302(1) of the Criminal Code.

The principal circumstance appearing from the evidence which might have induced the jury to doubt the existence of the requisite intention was that the appellant was said to have been intoxicated at the time of the killing; under s.28 of the Code,

the jury were entitled to have regard to his intoxication for the purpose of ascertaining whether the requisite intention existed. The main ground of appeal was that the trial judge wrongly rejected two copies of newspaper articles which, so it was argued, were admissible on this point.

There was a considerable body of evidence relevant to the appellant's intoxication; the trial ran for some weeks. On 14 May 1991, the appellant told the police that at the time in question he was drunk, but knew what he was doing and, on the same day, he said that he had a "fairly fair" recollection of the events that took place. There was other evidence, to put the matter broadly, which if accepted by the jury indicated that the appellant recalled having killed the girl. On the other hand, the appellant's evidence was to the effect that alcoholic

drinks he had consumed and smoking of marijuana caused him to have a poor recollection of events about the time of the

killing.

The evidence about the appellant's recollection was not, of course, directly relevant to intention, but the suggestion was that if he had a poor memory of events, the appellant was unlikely to have had the intention necessary to found a conviction for murder. It was in this way that, as may be discerned from the summing up, the quality and extent of detail

of the appellant's recollection of the killing came to be the killing (which occurred on 11 May 1991), the appellant when questioned denied any knowledge of the matter, but on the night of 14 May he told his fiancee and on the next day told other people that he was the killer. Amongst those he told on 15 May were the police, who recorded his confession. It included a considerable amount of detail, not only about the killing itself, but about some events which preceded the killing. To

discussed at the trial.

come to immediately relevant matters, the appellant told the police that he hit the victim on the head, "just kept hitting her" and "stuck a stick up her vagina". He said that at the

time the victim had her dress pulled up to her stomach and had no panties on. He described to the police the stick he used to hit her and the stick he pushed into her vagina. When he gave

evidence, the appellant said he did not know from where he
recalled the stick having been put into the victim's vagina.

The medical evidence showed that the girl was very severely beaten about the head and that she had injuries which were consistent with a foreign object being inserted into her vagina;

it had caused perforations in the back wall of the vagina. The

post mortem examination was done of the morning of 14 May.

To explain his ability to give details of relevant events to the police, the appellant said at the trial that he had information from sources other than his own knowledge of the killing. He

said that one Spinks told him and others on 13 May 1991 that he had seen a photograph of the victim, that she had suffered massive head injuries and also said "something" about her clothing. Further, the appellant suggested that he heard something about the appellant's injuries at the police station on Tuesday, 14 May; he did not claim to remember what the police had told him. His counsel asked him:

"Had you seen anything in newspapers or on television or heard anything via any other arm of the media in relation to the information concerning the missing girl as she was at one stage and then the deceased as it came to be known?".

The appellant answered "Yes, yes". Again, the appellant did not claim to be able to identify whether it was the newspapers or television or another arm of the media which had provided information, nor to be able to say what information he thus

gained.

The newspaper articles we have mentioned were tendered by then counsel for the appellant as being made relevant by the question and answer which we have quoted. Counsel contended that articles published in the "Sunshine Coast Daily" on 14 May and on 15 May relating to the killing could justify an inference that the appellant "may well have read these matters in the newspaper" - "these matters" apparently being details he gave to the police when he confessed to the killing. The judge ruled, in effect, that the copies of newspaper articles were

irrelevant. They disclosed that the body was "partly clad", had

"extensive head wounds caused by a blunt instrument", that the police said that the girl had been "beaten so savagely by a blunt object that she was unable to be identified visually", that a blood-stained branch was found at the scene and that the girl was said to have suffocated due to the amount of blood from her injuries. Neither article mentioned vaginal injuries and the second said that it "had not been confirmed whether [the victim] had been sexually assaulted".

If the newspapers were relevant, that was so because they provided a source of information to the appellant on which he might have based, in part, his explanation to the police of the events of the night in question. The theory which the defence apparently put forward was that although the record of the police interview gave no hint of this, the appellant knew of some of the events he described from having read them in the newspaper.

In the appellant's written submission, an assertion was made that one of the sources of knowledge of the details of the killing which the appellant nominated was newspaper reports of

the killing, but that appears to be factually incorrect. The only evidence which might be argued to support it consists in the question and answer we have quoted. Not only did the appellant not say he had obtained any relevant information from the newspaper in question, he did not say that he looked at the relevant editions or indeed any edition, later or earlier, of that paper.

The way in which the appellant knew the details of the crime was relevant, but not because there was any question about whether he was responsible for the death; if he knew those details, when interviewed, it may have seemed more likely that

he then had the necessary intention, to kill the girl or do her

grievous bodily harm. If, as appeared on the face of the record of his interview by the police, he was able to explain how he killed the girl and some of the other attendant circumstances,

it may have seemed to the jury that his mental functioning at
the time of the killing was not especially deficient.

Of course, the jury might well have been sceptical about assertions by the appellant that in giving the details to the police he was relying on what he had been told since the killing, not on his own memory of what he had done; not only

did he have a motive to lie on that point, but when he confessed

to the police he did not suggest that what he told them was based on what he had heard or read. In our opinion, to bolster

his case in this respect, the appellant was entitled to lead

evidence about communication of details on which he had relied in speaking to the police, not only by giving evidence about

them himself, but by corroborative evidence from those who communicated the information to him. For example, if he relied on something Spinks told him, he was entitled to call Spinks on the point, as well as giving evidence himself about it. Nor, in our opinion, was evidence of that kind necessarily rendered inadmissible by a lack of certainty on the appellant's part as

to which items of information came from which source. depend on matters of degree. For example, it could not have

helped the jury to have evidence before it that a particular detail of the crime was mentioned in a Perth newspaper, in the

absence of anything to suggest that its publication in that paper caused the detail to come to the appellant's knowledge. Some of the argument on behalf of the appellant before us would, if accepted, lead to the conclusion that a mass of material

which could not rationally influence the jury's deliberations was admissible, on the grounds that the appellant was unsure where he got his information from and that it could conceivably have come from any source, private or public.

Not only did the appellant not suggest that he might have got relevant information from the particular editions of the particular newspapers sought to be tendered; he did not say that he ordinarily, or indeed ever, read the "Sunshine Coast Daily". When the difficulty of connecting the content of those newspapers with any issue in the case was pointed out by the learned trial judge, the then counsel for the appellant sought and obtained an opportunity to discuss the problem with the appellant with a view to calling further evidence; none was called. It does not appear to us that the mere possibility that the appellant might have relied upon the rejected newspaper articles, in part, for the information he gave to the police made those articles admissible when he gave no evidence to make them, rather than any other possible source of information one might postulate, material.

We have also noted that what was contained in the newspaper articles could have been only of limited use to the appellant in explaining to the police what happened to the girl; in particular, it gave no indication of the vaginal injuries. We have mentioned that the articles disclosed the existence of head

injuries, but the appellant's evidence was inconsistent with his having that information from the newspapers. He denied in his

evidence that anything in the press indicated that somebody had hit the victim on the head and said he got that information from

Spinks.

In our opinion, the learned primary judge correctly rejected the two newspaper articles, but if he was, contrary to our view, wrong in doing so then that error could not have affected the result. No rational jury could have attached significance to the content of the articles and it is clear in the whole of the circumstances that their rejection did not cause a miscarriage of justice.

The only other criticism of the judge's conduct of the case advanced for the appellant was that his Honour erred in relation to a question of professional privilege. A Dr. Mulholland was called to support the defence of diminished responsibility and he referred to information he had obtained from another doctor

called Walsh. It was proved that Dr. Walsh was engaged by the appellant's legal advisers and ordinarily the material he supplied to them would be protected by legal professional privilege: Wheeler v. Le Marchant [1881] 17 Ch. 675, Nickmar Pty. Ltd. v. Preservatrice Skandia Insurance Ltd. [1985] 3 N.S.W.L.R. 44 at 56; but see the discussion in Cross on Evidence (Australian edition) para. 25235. Dr. Walsh had an electroencephalogram done in relation to the appellant, a report on which was obtained by Dr. Mulholland, who said that he looked at and thought about it and that "it inevitably, I think, entered in my thinking about the case and in my ultimate conclusions". Dr. Mulholland also had a copy of the electroencephalogram itself; the judge ruled that legal professional privilege had been lost as to those documents and also that Dr. Mulholland could be questioned about them.

It seems clear that the judge's ruling was correct. The appellant called Dr. Mulholland to give an opinion which relied upon material obtained from another doctor the defence had consulted for the purposes of the case. In adducing evidence of Dr. Mulholland's opinion, so based, the appellant impliedly waived privilege in respect of the medical opinions and tests on which Dr. Mulholland relied. It is true that, on Dr. Mulholland's evidence, the material in question was not of central importance in the formation of his opinion, but that cannot matter: the same question would arise if Dr. Mulholland's opinion were based wholly upon privileged material.

To adapt the language of Gibbs C.J. in Attorney-General (N.T.) v. Maurice (1986) 161 C.L.R. 475 at 481, it would have been unfair to allow the appellant, by the witness Dr. Mulholland, to use the material obtained from Dr. Walsh as a basis of his case, but yet assert that it was privileged from production.

In addition to the electroencephalogram report, other documents were produced, apparently because of the ruling with

respect to waiver of privilege; it is not suggested that any separate question arises with respect to the latter documents. We should add that as the defence of diminished responsibility to which Dr. Mulholland's evidence was directed was not pressed, the ruling as to waiver of privilege could hardly have made a difference to the verdict.

The appeal must be dismissed.

IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
C.A. No. 248 of 1992
Before the Court of Appeal
Mr. Justice Pincus
Mr. Justice McPherson

Mr. Justice Williams

T H E Q U E E N

v.

BEVAN ERROL MENINGA

(Appellant)

JUDGMENT - THE COURT

Delivered the Eighteenth day of December 1992

MINUTE OF ORDER:APPEAL AGAINST CONVICTION DISMISSED.

CATCHWORDS:	CRIMINAL LAW - INTENT - Appellant convicted of murder - whether appellant's inability to recall events at time of killing indicated lack of requisite intent - whether appellant could conceivably have obtained information re the killing from other sources.
Counsel:	M. Byrne for the Crown

P. Nase for the Appellant

Solicitors:  The Director of Prosecutions for the Crown

The Legal Aid Office for the Appellant

Hearing Date(s):  4 December 1992

IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND

C.A. No. 248 of 1992

T H E Q U E E N

v.

BEVAN ERROL MENINGA

(Appellant)

_______________________________________________

Mr. Justice Pincus
Mr. Justice McPherson
Mr. Justice Williams

_______________________________________________

Judgment of the Court delivered on 18th December,

1992.

_______________________________________________

APPEAL AGAINST CONVICTION DISMISSED.

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