R v Mitchell

[2013] QCA 248

SUPREME COURT OF QUEENSLAND

CITATION:

R v Mitchell [2013] QCA 248

PARTIES:

R
v
MITCHELL, Timothy Cedric
(appellant)

FILE NO/S:

CA No 2 of 2013
SC No 69 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

6 September 2013

DELIVERED AT:

Brisbane

HEARING DATE:

2 May 2013

JUDGES:

Holmes and Fraser JJA and North J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal against conviction dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted after a trial of one count of murder – where the appellant contended that the guilty verdict was unreasonable or could not be supported having regard to the evidence – where the appellant, the deceased and a number of friends had been drinking methylated spirits and smoking cannabis during the day – where the appellant argued it was therefore doubtful whether he had the capacity to form an intention to kill or do grievous bodily harm – where the appellant contended that the evidence contained discrepancies and inadequacies and lacked probative force – whether the evidence was sufficient to establish that the appellant was aware of what he was doing and could form the requisite intent – whether the verdict was unreasonable or cannot be supported having regard to the evidence

M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited

COUNSEL:

F D Richards for the appellant
M Cowen for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

1. HOLMES JA:  I agree with the reasons of Fraser JA and the order he proposes.

1. FRASER JA:  The appellant was charged with assaulting Lucas Ned on 10 May 2011 and doing him bodily harm and murdering Gary Gregory on 29 May 2011.  The appellant pleaded guilty to the count of assault.  He pleaded not guilty of murder but guilty of manslaughter.  The Crown did not accept that plea in discharge of the count of murder.  After a trial occupying two days the appellant was found guilty of murder.  The ground of the appellant’s appeal that the guilty verdict is unreasonable having regard to all of the evidence is based upon the appellant’s contention that he was so grossly affected by alcohol and cannabis that it was doubtful whether he had the capacity to form an intention to kill or do grievous bodily harm.

1. The appellant was 24 years old at the time of the offences.  An acquaintance of the appellant, Lindsay Dick, gave evidence that on 10 May 2011 he, the appellant, the deceased, Grant Daylight, and Lucas Ned shared a bottle of methylated spirits in a park at Mareeba, commencing at about 8.00 am.  They then went to a shed behind the house where the appellant lived and shared a second bottle of methylated spirits.  Dick agreed in cross-examination that the appellant and others also smoked cannabis.  He variously described the appellant’s condition during the evening as “well off his head”, not paralytic “all that much”, and “really drunk … paralytic … could hardly stand up”.  Daylight left the shed sometime during the evening, leaving Ned asleep on a mattress and the others awake.  Dick said that the appellant was sitting on a chair at a table drinking methylated spirits when he “probably started well off his head”; the appellant walked over to where the deceased was sitting on a mattress and kicked him in the jaw.  Whilst the deceased lay on the ground, the appellant repeatedly stomped on his face.  Dick gave different estimates of the number of times the appellant kicked or stomped on the deceased’s face, varying between about seven and 11 times.  Dick objected but the appellant kept going.  The appellant then walked over to Ned and kicked him four or five times in the face.  The appellant was wearing steel capped boots.  The appellant did not say anything when he was kicking the deceased.  In cross-examination Dick agreed that before the appellant started those assaults the group had got on very well and had a good day.

1. Dick gave evidence that when the police subsequently arrived at the shed and approached the appellant to arrest him, the appellant had a wheelie bin which he had brought in from the yard.  The appellant held the bin above his head and hit the deceased with it before putting the bin down and surrendering to the police.

1. The appellant lived with his brother Nigel Mitchell, his aunt Billie Mitchell, and her mother, Janet Mitchell.  Billie Mitchell gave evidence that when she was watching television that night she heard the appellant yelling and went outside her house to look at the shed.  She saw the deceased unconscious on the ground and the appellant standing nearby with his fist clenched.  He was swearing.  After asking the appellant’s brother  to ring the police she saw the appellant throw a wheelie bin inside the shed.  She told him to stop.  He continued to yell with his fists clenched.  When the police arrived the appellant complied with a police direction to put the bin down.  Nigel Mitchell gave evidence that he went to the shed and told the appellant to stop swearing.  The appellant was walking backwards and forwards in the shed.  Nigel Mitchell saw the appellant punch the deceased in the head whilst the deceased was on the floor and also kick a man Nigel Mitchell did not know.  Nigel Mitchell yelled at the appellant to stop.  The appellant responded by swearing at him and telling him to go away.  In cross-examination Nigel Mitchell agreed that when he saw the appellant walking backwards and forwards in the shed the appellant was threatening to knock someone out.  When Nigel Mitchell told the appellant to stop what he was doing the appellant turned to him, swore at him, and threatened to assault him if he did not leave.  Nigel Mitchell later heard the appellant threatening to bash and knock someone out.  The appellant was speaking quickly and loudly.

1. Occupants of a neighbouring house, Kathryn Hughes and Lyall Jerome, gave evidence.  Hughes said that around 9.30 pm she heard shouting, swearing, and the sound of someone being hit very hard coming from the neighbouring back garden.  The person was making threats about wanting and giving blood.  Hughes left the house to go into the garden, went back inside, and subsequently returned to the garden.  She heard someone say that “he had a hammer and that he was going to gaol anyway so he might as well – and the, ‘I’ll give you blood, you mother-fucker’ …”.  Hughes gave evidence of hearing the noises of a fight and hearing a second person moaning.  She heard multiple thuds which she thought were the sounds of kicks.  After the reference by someone to a hammer she heard a sound of “something very hard and metal hitting a melon”.  Jerome gave very similar evidence, including that he heard a sound like someone hitting a watermelon with a hammer.  In cross-examination Jerome agreed that in a statement to police he had said that after hearing a big thud he had rhetorically asked whether the aggressive male had just hit another man with a hammer, and Ms Hughes had responded affirmatively.

1. Police and ambulance officers attended the scene at about 9.30 pm.  Police officer Neil gave evidence that when she arrived she saw the appellant kick a man lying on the ground in the face.  She started running and shouted to the appellant to get away from him.  The appellant picked up a wheelie bin and struck the man in the face with it.  Whilst running towards the appellant with other police officers, she and another officer called out “Taser”.  The appellant immediately stopped, placed the bin down, and faced towards police.  Neil gave evidence that the appellant also immediately complied with subsequent directions to put his hands behind his head, to turn around, and to lie on the ground.  Police officer Kelly gave similar evidence.  In cross-examination he said that the appellant immediately complied with directions.  He agreed that in an earlier statement he had said that the appellant slowly began to comply with directions.  He agreed that he had repeated his directions.

1. The appellant formally admitted at the trial that the deceased died on 29 May 2011, the main cause of death being head injury, and that the deceased had “significant blunt trauma, probably repeated, to the head to cause his head injury.”  It was not suggested that the skull was fractured.  There were no obvious recent injuries apart from the head injury.  DNA samples taken from the appellant’s boots originated from the deceased and an unknown person.  It was formally admitted that there were no blood stains observed on the hammerhead.  A DNA sample taken from the top surface of the hammerhead (not the striking surface) matched the deceased’s DNA profile.  The Crown also made formal admissions about the results of alcohol testing of the appellant on 11 May 2011.  Most relevantly, at 10.05 am the appellant’s blood alcohol concentration was 0.086 per cent.

1. A government medical officer gave evidence in the Crown case to the effect that, at the time when the appellant assaulted the deceased, the appellant’s blood alcohol concentration was likely to have been between about 0.255 per cent to about 0.273 per cent.  The doctor gave evidence that a person with a blood alcohol percentage between 0.2 and 0.3 might be drowsy or lose consciousness, not understand very well what was said, have impaired sensations about what was happening, have impaired memory or gaps in memory, have slurred speech, loss of balance, clumsiness, slow response times, and behave and speak inappropriately.  The doctor found it difficult to comment about the effect of mixing alcohol and cannabis, but observed that people could perhaps behave in an irrational, aggressive, or even psychotic fashion.  He agreed that there was research to suggest that alcohol in the blood might lead to a faster absorption of the active ingredient in cannabis, resulting in a more rapid effect.  Drinking methylated spirits and smoking cannabis together could combine to produce a much greater effect than either would have individually.

1. A police record of interview with the appellant was tendered in the Crown case.  The appellant told police that he had consumed methylated spirits and cannabis on the day in question.  He repeatedly told police that he could not recall or that he had difficulty recalling what had happened.  He had been drinking a lot in the previous week.  On average he had drunk about one cask and half a bottle of methylated spirits a day.  He had also been smoking marijuana on a daily basis.  He said that on the day in question he was still drunk from the previous day, when he had finished drinking at about 6.00 pm.  He had a drink when he woke up at 4.00 am.  The appellant said that during the day he had been laughing and drinking with the deceased.  He recalled that he and the deceased had sat in the park drinking with Dick, Ned, and Daylight.  He referred to sitting in the shed and drinking some more.  He said that he could not remember anything after that until he woke up in the police wagon.  Later in the interview he referred to “flashbacks” about punching the deceased and having been kicked by Ned.  He thought that he remembered being between the deceased and Ned whilst they were moving and getting up.  He “just kicked them back down”.  Later he said that Ned hit him in the back of the head from behind, he fell down onto the deceased, and then, he thought, “he just went crazy”.  After referring to having “blanked out”, he said that he had kicked the deceased twice in the guts pretty hard and stamped on him, and that he had also kicked Ned.  The appellant said that he knew nothing about using the hammer in the shed; he asked, apparently distressed, whether he had hit the deceased with a hammer.  When asked about the wheelie bin, the appellant reacted in a similar way.  He described fighting with Ned but then explained that he might be lying because he was “blank”.

1. The appellant did not give or call evidence.

Consideration

1. It was submitted for the appellant that the neighbours’ evidence about the hammer had the capacity unduly to influence the jury, particularly by the evocative description of the hammer hitting a melon, but was of marginal probative value.  There was no objection to that evidence being admitted.  The trial judge referred to it in summing up to the jury, remarking that the witnesses who spoke of hearing a sound like something hitting a watermelon might have misheard because there was no suggestion of the significant skull fracturing which would be expected and the deceased’s blood found on the hammer was not where it would be expected if the hammer had been used to hit the deceased.  The trial judge also remarked that, based on the activity described in the evidence, it was unsurprising that the deceased’s blood was on the hammer.  It seems very unlikely that the jury accepted that the appellant used the hammer and I disregard the evidence about that in my assessment of the reasonableness of the verdict.  The evidence was instead compelling that the deceased died as a result of the appellant repeatedly kicking and stomping upon his head with steel capped boots.  The jury could find as much beyond reasonable doubt in reliance upon the eye witness evidence of Dick, the formal admissions that the cause of death was head injury caused by significant blunt trauma, probably repeated, and the appellant’s plea of guilty to manslaughter.

1. The appellant submitted that the evidence relied upon by the prosecution to prove that the appellant intended to kill or do grievous bodily harm to the deceased contained discrepancies and inadequacies and lacked probative force.  The appellant summarised the contentions in support of that argument as follows:

“a)The Appellant’s apparently limited familiarity with consuming spirits, let alone methylated spirits;[1]

b)The evidence of the Appellant’s ingestion of methylated spirits and cannabis, coming after days of similar consumption;

c)Evidence that the Appellant’s blood alcohol concentration at the time of the offence was between .255% and .273%;

d)Medical opinion that the combined affect of alcohol and cannabis could lead people to behave in an irrational, aggressive, even psychotic way;

e)The conflicting and unsatisfactory eyewitness evidence going to the number, nature and force of blows delivered by the Appellant;

f)The paucity of medical evidence pointing to a prolonged assault involving multiple blows of significant force;

g)The inexplicable, spontaneous and apparently motiveless nature of the assault, coming as it did at the end of a day of ‘brotherly’ companionship; and,

h)The evidence of the Appellant’s behaviour and words during the incident, which speaks of a young man acting without restraint; but equally, without direction or thought, let alone intention to cause any specific result.”

[1]Billie Mitchell gave evidence that the appellant drank cask wine and beer “only when he got paid or if he was with a group of friends or relatives”.

1. As to the blows delivered by the appellant ((e) and (f)), whilst, as was submitted for the appellant, the formal admissions were in general terms and the admission about repetition of the significant blunt trauma was merely in terms of probability,  those admissions and Dick’s evidence made it reasonably open to the jury to find that the appellant embarked upon a prolonged episode of violently kicking the deceased in the head with steel capped boots, resulting in a serious head injury which led to the death.  The absence of proved motive ((g) and (h)), was relevant, but the evidence did not go so far as to establish the absence of any motive; and what was directly in issue was intent, rather than motive.

1. The most significant issue for the jury arose in relation to the effect of the appellant’s intoxication or stupefaction ((a) - (d)).  The jury cannot have been in any doubt that the appellant was very intoxicated, and he might also have been significantly further affected by the cannabis.  Even so, the evidence as a whole allowed the jury to conclude beyond reasonable doubt that the appellant was capable of forming and did form the intent to do grievous bodily harm to the deceased.  That the appellant was aware of what he was doing finds substantial support in the evidence, particularly the evidence that: the appellant recognised his brother and rebuffed his brother’s suggestion that he should stop assaulting the deceased, the appellant was able to pick up a very large bin and strike his intended victim with it, the appellant referred to blood and killing the deceased, the appellant said that he was destined for jail in any event, and the appellant complied promptly with police directions.  When that evidence is taken into account together with the evidence that the appellant repeatedly kicked the prone deceased in the head with steel capped boots over a prolonged period, the proper conclusion is that it was reasonably open to the jury to infer that, despite the very high degree of the appellant’s intoxication, he killed the deceased with the intention of doing him grievous bodily harm.

1. Accordingly the guilty verdict was not unreasonable.[2]  I would dismiss the appeal against conviction.

   [2]          M v The Queen (1994) 181 CLR 487 at 493; MFA v The Queen (2002) 213 CLR 606 at 615.

1. NORTH J:  I agree with the reasons of Fraser JA and the order he proposes.