R v Nicholas

[1994] QCA 461

[1994] QCA 461

COURT OF APPEAL
FITZGERALD P
PINCUS JA

McPHERSON JA

CA No 224 of 1994
THE QUEEN
v.

ELIZABETH MARGARET NICHOLAS Appellant

BRISBANE
..DATE 31/08/94
THE PRESIDENT: This is another tragic case involving violence
associated with sexual activities and alcohol. On 11 May 1994
the appellant was convicted of the murder of another woman who
immediately beforehand had sexual intercourse with the
appellant's de facto husband. At least the appellant and her
de facto husband had been drinking during the day of the
killing, 26 February 1993, and again that night.

The appellant's de facto husband and the woman whom she killed had previously had a relationship which might not have been entirely over during the two and a half years in which the appellant and her de facto husband lived together. There had been some tension between the two women but nothing suggesting any animosity on the part of the appellant towards the other woman.

On the night in question, all three were drinking at a club on Palm Island. The appellant's de facto husband and the other woman went from the club premises to a shed where they had sexual intercourse. The appellant came upon them while the other woman was putting her pants back on. An argument ensued.

The appellant had a knife in her hand which she had brought
with her because she was afraid of her de facto husband. She
stabbed the other woman in the side piercing her lung and
heart and killing her.
The appellant gave evidence that she meant to frighten, not
kill. The case was conducted for the appellant on the basis
that she should not be convicted of murder but manslaughter
either because she lacked the requisite intent or because she
had acted in response to provocation.

There is no suggestion that the trial involved any unfairness to the appellant and the trial Judge's directions to the jury included appropriate reference to the significance of the

alcohol which the appellant had consumed to the intention
which the jury had to find before it could convict her of
murder. Nor was there any complaint that His Honour's
directions with respect to provocation were other than as
required by the Criminal Code.

The first three grounds of appeal may conveniently be considered together. These asserted that the verdict was unsafe and unsatisfactory and that the jury should have had a reasonable doubt (1) that the appellant was not provoked when the fatal blow was inflicted and (2) that the appellant had an intention to cause death or grievous bodily harm.

It is unnecessary to add to the description of events given above to reject the assertion that the verdict was unsafe and unsatisfactory as absurd. As to the appellant's intention, subject to the possible effect of the alcohol which she had consumed which was considered by the jury, an intention to kill or cause grievous bodily harm would be readily inferred without intendance of the slightest doubt from stabbing another person through the heart.

There was evidence which required the jury to consider provocation including that the appellant was "very upset" and appeared "to lose complete control" and became "quite hysterical" before stabbing the deceased. The jury was not required to accept such evidence or on the basis of it have a reasonable doubt as to whether the appellant was provoked.

The fourth ground of appeal is that the trial Judge erred in law in not allowing the defence of accident to be considered by the jury. The basis for this ground was the submission

that there was evidence from the appellant that she had no recollection of whether she was holding the knife when she struck the deceased.

In the first place it is incorrect to state that the trial Judge did not allow the defence of accident to be considered by the jury. There was simply no suggestion of accident at the trial. Little wonder, since it was emphasised time and again that the appellant could not be convicted of murder unless the jury was satisfied beyond reasonable doubt that she intended to kill or cause bodily harm to the deceased.

The fifth ground of appeal was that the trial Judge erred in law in failing to redirect the jury, that remorse or the absence of remorse had no relevance to the state of mind of the appellant at the time of striking of the deceased when the Crown Prosecutor had placed considerable emphasis on this matter in his address to the jury.

When the request was made for a redirection at the trial, the trial Judge asked the Prosecutor for his comment, adding "You did say some remarks about remorse or lack of it which the jury might misunderstand." From the transcript of the ensuing debate it seems that the Prosecutor had invited the jury to conclude that the appellant had exhibited no remorse in the aftermath of the killing which he submitted was (1) consistent with an intention to kill or cause grievous bodily harm and (2) indicative that she had not merely acted in the heat of the moment because if she had she would have "immediately when her passion had cooled, regretted what she had done."

While the logical force of the Prosecutor's assertions to the jury concerning the significance of the absence of remorse which she contended the appellant had exhibited might not be strong it cannot be concluded that his remarks were so illogical, incorrect or inappropriate that they should never have been made or that when they were the trial Judge was required to direct the jury to disregard them.

The final ground of appeal was that the trial Judge erred in law in allowing the Crown Prosecutor to cross-examine the appellant about conversations said to have occurred at the club house prior to the incident causing death. It seems that as the prosecution case was drawing to a close, the Prosecutor received information that another person who had been present at the club on the night of the killing had overheard a conversation between the appellant and the deceased.

It is not clear whether the prosecution received the information from the person who had overheard the conversation or had a second-hand account of the conversation from another person.

In any event, if the prosecution was able to lead evidence of the conversation it did not do so. Shortly after the beginning of the appellant's cross-examination, she was asked whether she had told the woman whom she later killed "to stay away from" her de facto husband. She answered "No." After she had answered her counsel objected that the prosecution had not led evidence of such a conversation. After argument the trial Judge permitted the prosecution to ask whether the appellant and the deceased had had a conversation in which the appellant was told by the deceased of the man "she was living with" a person quite different from the appellant's de facto husband. The cross-examination went no further.

While the relevance of the second question is not apparent, the appellant was not disadvantaged by her answer to either question and was benefited by the prosecution's failure to lead evidence of the conversation if it was able to do. None of the grounds of appeal has any substance in my opinion and the appeal must be dismissed.

PINCUS JA: Although my knowledge of the record is not as extensive as that of the presiding Judge, I have come to a similar conclusion. In doing so I have taken into account the fact that two senior and reputable counsel experienced in criminal work each have formed the view that there was a fairly conducted trial and the evidence was adequate to support the verdict. I too would dismiss the appeal.

MCPHERSON JA: I agree with the reasons of the President and with the order that the appeal be dismissed.

THE PRESIDENT: The order of the Court is appeal dismissed.

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