R v Nicholls

[1997] QCA 388

IN THE COURT OF APPEAL

[1997] QCA 388

SUPREME COURT OF QUEENSLAND

C.A. No. 479 of 1995
C.A. No. 266 of 1996

Brisbane

[R. v. Nicholls]

T H E Q U E E N

v.

MELINDA ANNE NICHOLLS

(Applicant) Appellant

Davies J.A.

McPherson J.A.

Pincus J.A.

Judgment delivered 31 October 1997

Separate reasons for judgment of each member of the Court; each concurring as to the orders made.

APPEAL AGAINST CONVICTION ON THE COUNT OF MURDER ALLOWED AND A
VERDICT OF ACQUITTAL ORDERED.

CATCHWORDS: CRIMINAL LAW - CONVICTION APPEAL - MURDER - SENTENCE APPLICATION - Entering a dwelling with intent - Section 8 Criminal Code - Intention to prosecute unlawful purpose - Common intention to steal - Whether appellant’s knowledge of principal offender being armed sufficient to sustain charge of murder. Hind and Harwood (1995) 80 A.Crim.R. 105; R. v. Barlow (1997) 71 A.L.J.R. 680; R. v. Solomon [1959] Qd.R. 123; Stuart v. The Queen (1974) 134 C.L.R. 426.

Counsel:	Mr M. Griffin for the appellant Mr D. Meredith for the respondent
Solicitors:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent
Hearing Date:	15 August 1997
REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered 31 October 1997

I have had the advantage of reading the reasons for judgment of McPherson J.A. I agree with his conclusion that the appeal should be allowed and a verdict of acquittal entered. I adopt his Honour's statement of the relevant facts.

I agree with his Honour that the only common intention to which it could be inferred Nicholls was a party, within the meaning of s.8 of the Criminal Code, was one to steal with violence or threats of violence from Mr. and Mrs. Cowie. The first question which then arises under s.8 is whether the act by Gwilliams of stabbing Mr. Cowie with a knife was a probable consequence of the prosecution of that common intention. It is only if an affirmative answer is given to that question that it would be necessary to consider whether the circumstances in which the act of stabbing was done or its result or the state of mind with which it was done was a probable consequence of the prosecution of the common unlawful purpose. Here not even that act, in my view, let alone those aspects of the nature of the offence committed by Gwilliams, was a probable consequence of the prosecution of that purpose. But plainly Mr. Cowie's death, in any event, was not.

I agree with McPherson J.A. that an attempt by the respondent to establish a narrower and more heinous common purpose, arising out of the fact that the appellant was somewhere in the house when Mr. Cowie emerged from it having been stabbed by Gwilliams, fails for the reasons which he gives.

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 31 October 1997

The appellant Melinda Anne Nicholls was, with Darlene Jeanette Gwilliams, found guilty at their joint trial in the Supreme Court on charges of murdering Leslie Alexander Cowie on 10 December 1994. The appellant was born on 19 September 1980 and so was 14 years old at the time of the offence, and 15 at the time of the trial in November 1995. Her co-offender Darlene Gwilliams was born on 8 April 1978, and was aged 16, approaching 17 years, at the time of the offence.

The appellant, who was known as Dolly, was one of four teenagers including Darlene Gwilliams, Rodney Paul Munro, and Narelle Ann Bunt, who met up on the morning of 10 December 1994 and travelled to Sunnybank by train. They left the train there and, by early afternoon, were walking along a road in Coopers Plains when they came to the house where Mr Cowie and his wife Mrs Cowie lived. Mr Cowie had placed a bicycle outside the yard, which he had chained to the fence and was offering for sale. The members of the group formed the intention of stealing something from the house. Darlene Gwilliams went to the back of the house and turned the electricity off. Her fingerprint was later found on or near the meter board. Then she summoned the others.

They went to the back door and one of them asked if she could use the toilet. They were invited into the kitchen. Darlene asked for a drink and Rodney Munro said he was hungry. Mrs Cowie began to prepare some cheerios for them to eat, but found the electricity was off. She gave Rodney the packet of cheerios from the refrigerator . At some stage the suspicions of Mrs Cowie may have been aroused, and the young people were asked to go. They left by the back door, and began walking up the drive beside the house towards the footpath, with Mr Cowie behind them.

On the way out, Darlene, who was a little further back than the others, began having an argument with Mr Cowie. Narelle Bunt, who gave evidence for the prosecution at the trial, said she heard Darlene yelling at Mr Cowie “I’m going to kill you. I’m going to kill you, cunt”. She had a screwdriver in her hand as she said this, and she was pointing it from about shoulder height at Mr Cowie. He had a stick or something in his hand and was waving it around in front of him at about waist level. Darlene called out to Rodney Munro to come and help her, and he went back up the drive and began throwing pot plants at Mr Cowie, who ended up with dirt over his face. Narelle Bunt then pulled Rodney away and continued to the footpath leaving Darlene behind with Mr Cowie. Some time later they heard a bang and saw that he had fallen down the steps of the front entry porch of the house ending up with his head through the railings. There was blood all over his shirt. Post-mortem examination disclosed that he had died of a single stab wound from a knife which entered the left front side of his chest and pierced his heart.

Narelle Bunt said she saw this from where she was on the footpath. She then heard Darlene shout “Hurry up, Dolly”, and found Darlene was now behind her. The appellant Dolly came out of the house, put her hands on both railings, and hopped over Mr Cowie lying on the steps. She rejoined the others on the footpath.

They then began crossing the road. As they were doing so, a woman who was evidently Mrs Perry, a near neighbour who gave evidence at the trial, came up and said something to Darlene, to which she responded “If you don’t shut up, I’ll do the same to you”. They all began running down the road, until they came to a paddock with a gully, where they sat down. Narelle asked Darlene what she had done, and Darlene said “I can’t believe I did that”. She gave her shirt to the appellant Dolly to wear. She had a knife, which she also gave to the appellant, who put it down the front of her shorts. Then the police car came and they were taken away.

The account given in evidence by Narelle Bunt was somewhat disjointed, and the precise sequence of events is at times difficult to follow. It is possible that she did not tell all she knew. In the course of the trial Darlene told her to “keep your mouth shut, or you’re dead”. There was some other, but not much more, evidence. Mrs Cowie subsequently identified the knife as her husband’s fishing knife. It had been kept in a drawer in the kitchen, which was found to have been left slightly open, and a carving fork was also taken from there. Darlene later told the police she had stabbed Mr Cowie with a carving fork; but the medical evidence did not bear this out, and the knife was on examination found to have traces of Mr Cowie’s blood on it. Before her husband was killed, Mrs Cowie had heard him call out to her from the back or the side of the house to telephone 000. She ran out to the front, and heard shouting and banging coming from inside the house. From the derangement of the furniture inside, it was apparent that a struggle of some sort had taken place. Mrs Cowie saw her husband come out and fall down the steps. Narelle Bunt heard her cry out “Les” and saw her cover her mouth with her hand in distress. Mrs Cowie later found his dentures there. She succeeded in stopping a car being driven by Mrs Perry, who lived two doors down from them. When Mrs Cowie reached the footpath, she saw the tall girl (who was Darlene) and asked what she had done to her husband, at which Darlene raised her arm and said “Do you want some?”. Mrs Cowie did not wait to see whether she was carrying anything, but ran back into the yard. Mrs Perry confirmed that she too was threatened by Darlene, who was holding a screwdriver in her hand. She raised it, and then brought it down in Mrs Perry’s direction, saying “Old hag, I’ll give you a piece of it too”. Her son, who had come out of the house, pulled her away in time.

The prosecution opened the case to the jury on the footing that it was possible that either Darlene or the appellant had struck the fatal blow; but, in his closing address, counsel for the Crown encouraged the jury to prefer the view that it was Darlene who had killed Mr Cowie. The case against the appellant was put to them on the basis of ss.7, 8 and s.302(2) of the Criminal Code.

Of the various specific grounds contained in the notice of appeal, the only one to which serious attention was and need be given here was that involving s.8. It was not seriously contended on appeal that, apart from s.8, there was evidence sufficient to justify a verdict against the appellant Dolly. Such evidence as there was pointed strongly, if not conclusively, to Darlene being the killer. She was the one who had the argument with Mr Cowie and pointed the screwdriver at him, saying she would kill him. She threatened one or both of Mrs Cowie and Mrs Perry with more of the same. Afterwards she had the knife with the blood on it, which she handed to Dolly at the time when she gave her the shirt to wear. It was Darlene who, when Narelle Bunt asked her what she had done, said “I can’t believe I did that”. Darlene was the oldest of the four, and there was evidence from which the jury could conclude that she was the leader of the group.

The prosecution case against the appellant under Code s.8 presents considerable problems. Narelle Bunt knew before they set off that morning that Darlene was carrying the screwdriver. The appellant might also have been aware of it. That could have raised an inference that it might be used for the purpose of a violent attack; but its possession was susceptible of other and even innocent explanations, including possibly self-defence. The prosecution case of murder against the appellant really begins from the moment when she and the others were leaving the house after being in the kitchen, with Darlene and Mr Cowie following behind. That was when the altercation took place between them, and Darlene pulled out the screwdriver, saying, as she pointed it at Mr Cowie, “I’m going to kill you. I’m going to kill you, cunt”. According to Narelle Bunt, the appellant Dolly was still with the group when Darlene said those words, and it may fairly be inferred that she heard Darlene say them. The appellant’s movements immediately after that are not accounted for in the evidence. It is an inescapable inference that she re-entered the house because she later came out of it at the front stepping over the body of Mr Cowie as she did. However, Narelle Bunt said she did not see the appellant detach herself from the group, and it is not possible to say with confidence when or by what route she went back into the house.

In this state of things, it is difficult to be sure precisely what the appellant’s intention or expectation was when she returned to the house after Darlene had gone back there with Mr Cowie. The jury would have been justified on the evidence in concluding that all four of them had originally formed an intention to steal from the house and possibly to rob; that is, to steal with violence or threats of violence to the person. To that extent, the evidence established, in terms of s.8, an intention common to the appellant and Darlene to prosecute an unlawful purpose in conjunction. In the prosecution of that purpose, Mr Cowie was stabbed and killed; but it is only if that killing was an act of such a nature that its commission was a probable consequence of the prosecution of the purpose of stealing or robbing that the appellant is by s.8 deemed to have committed it herself.

There are only two ways in which that conclusion could be reached. One is if it can properly be said that killing is, or under the particular circumstances prevailing here, the killing of Mr Cowie was, a probable consequence of the plan to steal or rob. There may be instances where such a conclusion might fairly be reached. If the parties to a plan to rob are aware that one of their number is carrying a loaded firearm and is prepared to use it to subdue opposition to carrying out the plan or purpose, a verdict of murder or manslaughter that depended on finding that a fatal shooting was a probable consequence of the plan would or might not readily be disturbed on appeal: cf. Hind and Harwood (1995) 80 A.Crim.R. 105, 144-145. But s.8 is attracted only by proof beyond reasonable doubt of the requisite common intention, and a great deal therefore depends on the character and potential scope or limits of the enterprise or plan that the participants had in mind: Stuart v. The Queen (1974) 134 C.L.R. 426, 443. Bringing about the death of a human being does not immediately impress an objective observer as a probable consequence of a common intention, plan or enterprise to steal or rob by threatening with a screwdriver. Nor was the original common intention or plan to steal or to rob in this instance such as to make it likely that any of the participants would use a kind or degree of violence as would be likely, in terms of s.302(2), to endanger human life: see R. v. Solomon [1959] Qd.R. 123, 135-136 (Mack J.).

But that is not the end of the Crown case against the appellant. The submission is also advanced that, whatever the original plan to steal or rob, a subsequent intention to use violence was revealed by Darlene’s threat “I’m going to kill you” uttered against Mr Cowie before they went back to the rear of the house; and that the appellant had heard her say this before she herself returned, as on the evidence she must have done, to the house. Accordingly, it is said that the only reasonable inference is that the appellant and Darlene had formed a common intention to kill Mr Cowie, or at least to use life-threatening violence against him.

There are several obstacles to the drawing of such an inference in the case of the appellant. In the first place it required the jury to be satisfied beyond reasonable doubt that the appellant shared with Darlene an intention to use life-threatening violence. Section 8 would begin to operate only if it was in fact the common intention of both the appellant and Darlene that some such violence would be used. The inference might be drawn less readily in the case of a 14 year old girl than of an adult that a threat of that kind by her companion, armed only with a screwdriver, was seriously intended. It nevertheless remains true to say that a matter like that is essentially one for the jury to decide.

The real difficulty for the Crown is, however, that on the evidence at the trial it is uncertain precisely what the appellant did after she heard Darlene utter her threat. The necessary inference of a common intention to use violence of at least some degree of seriousness would plainly be stronger if it had been proved that the appellant accompanied Darlene and Mr Cowie back into the house after having heard the threat. On the evidence it is not clearly established that she did so. It is possible that the appellant realised that the opportunity for her to steal from the house would be increased if Darlene was occupied in distracting Mr Cowie. Looking for something to steal was what she was apparently engaged in doing when he was stabbed by Darlene. The bedroom was later found to be in a disarranged state and appeared to have been ransacked. There is no evidence to show that the appellant was present when Darlene armed herself with the knife from the kitchen drawer, or when she stabbed Mr Cowie. The fact that the appellant remained in the house after Darlene had returned to the footpath, and that she left through the front door, tends if anything to suggest that she was not aware, at least until she stepped over him, that Mr Cowie had been stabbed by Darlene. Only a single drop of blood was found inside the house and it was at the front door.

When all these matters are combined, it appears that an inference that the appellant formed with Darlene a common intention of carrying out a purpose in conjunction with her of stealing or robbing from Mr or Mrs Cowie using life-threatening violence is not one that could safely be drawn beyond reasonable doubt from the fact of her having re-entered the house after seeing Darlene point the screwdriver at Mr Cowie and say “I’m going to kill you”. According to what was said by Gibbs J. in Stuart v. The Queen (1974) 134 C.L.R. 426, 443, it is necessary for the jury to consider “fully and in detail” what is the unlawful purpose and what its prosecution is intended to entail before arriving at a conclusion under s.8. In the present case there was insufficient material on which a common intention to use the requisite degree of violence could satisfactorily be based.

That being so, the verdict and conviction of murder against the appellant cannot stand. The appeal or appeals (C.A. nos. 479 of 1995; and 266 of 1996) must be allowed and the convictions set aside. Having regard to the state of the evidence, the case is not one in which a new trial can properly be ordered. On the count of murder against the appellant, a verdict of acquittal should be entered.

That brings under review the sentence imposed on this appellant. On the charge of murder, she was sentenced to detention for 10 years. That order lapses with the conviction. She was also found guilty at the trial of entering a dwelling house with intent to commit an indictable offence, and with stealing a set of keys belonging to Mr Cowie. They were in fact taken by Rodney Munro. The sentences for those two offences were that she be detained for six months and one month respectively. The appellant has in fact been detained since her conviction in November 1995, and has therefore satisfied the requirements of those two orders. She is therefore now entitled to be discharged from detention.

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 31 October 1997

I have read the reasons of McPherson JA and agree with his Honour’s reasons and

conclusions.

It was argued on behalf of the respondent that on the basis of the proper interpretation of s. 8 the appellant could on the evidence have been held guilty of manslaughter. If that was so then there might be a case for ordering a new trial on a charge of manslaughter. In Barlow (1997) 71 A.L.J.R. 680, one finds the principal passages explaining the operation of s. 8, firstly at pp. 684 and 685 and, secondly, at pp. 686 and 687; it is the former explanation which is presently relevant, because the latter appears to be concerned principally with the circumstances in which the secondary party may be guilty of a more serious offence than that committed by the principal offender. The former passages, insofar as they deal with the possibility that the secondary party is made guilty, by s. 8, of a lesser offence than that of which the principal offender is guilty, contemplate a selection from the elements which constitute the principal offence of some only of those elements. The process is exemplified by the discussion of its application to the facts of Barlow:

"It was not only the striking of Vosmaer but also the result of Vosmaer’s death, the absence of any justification or excuse for the striking of the blow and the intention to cause death or grievous bodily harm that made the striker of the blow guilty of the offence of murder. But not all of those facts were needed to give to the striking of a blow the character of an act rendering the principal offender liable to punishment. Absent the intention to cause death or grievous bodily harm, the striking of the blow without justification or excuse and the resultant death rendered the striker liable to punishment for manslaughter. As the striking of that blow was an act that rendered the principal offender liable to punishment, Barlow is deemed to have done that act if the requirements of s. 8 are satisfied. Was the nature of the blow actually struck such that its infliction was a probable consequence of the prosecution of the relevant unlawful purpose?" (684, 685)

Not all of the facts which made the principal offender, Gwilliams, guilty of murder were needed to give the wounding with a knife the character of an act rendering Gwilliams liable to punishment. The wounding was itself an act which rendered Gwilliams liable to punishment and as I understand the matter the appellant is liable under s. 8 for manslaughter if "the nature of the blow actually struck [was] such that its infliction was a probable consequence of the prosecution of the relevant unlawful purpose".

Although there is reason to suspect that the plan to which the appellant was a party was one likely to result in harm to Mr Cowie (who was killed), or to his wife, it appears to me that a conclusion that the striking of such a blow as resulted in Mr Cowie’s death was a probable consequence of the plan was not open on the evidence. That is a matter which the Crown would, on a new trial, have to prove beyond reasonable doubt and the circumstances, as explained in the reasons of McPherson JA, do not necessarily point to the plan being one involving or likely to involve the use of violence, let alone fatal violence. For all one knows, the fatal stabbing of Mr Cowie might have been an impulsive act on the part of Gwilliams and an act which, considered objectively, was quite unlikely to be the result of any plan to which the appellant was a party. Counsel for the respondent argued that the appellant, by going into the back door of the house to commit a theft while she knew that Gwilliams was offering violence to Mr Cowie, made herself a party to a plan - the plan being, as I understood the argument, that any resistance would be met with a stabbing. While the inference which counsel suggested the jury might draw was perhaps open, it could not, considering the requisite standard of proof, result in a safe verdict of manslaughter.

As I have said, I agree with the reasons of McPherson JA and with the orders his Honour

proposes.