R v Olney

[1996] QCA 327

IN THE COURT OF APPEAL	[1996] QCA 327
SUPREME COURT OF QUEENSLAND
Brisbane	C.A. No. 74 of 1996
[R v. H.W. Olney]

THE QUEEN

v.

HOWARD WILLIAM OLNEY

Applicant

Macrossan CJ
Fitzgerald P

Derrington J

Judgment delivered 6 September 1996

S eparate Reasons for Judgment for all members of the Court all concurring as to the order made.

APPEAL DISMISSED

CATCHWORDS:	Criminal Law - Murder - Appeal against conviction on ground verdict unsafe and unsatisfactory - Deceased killed aboard ship - Deceased and Appellant alone at time of death - Body not recovered - Whether Crown proved intention to kill or cause grievous bodily harm - Whether Crown excluded self-defence - Criminal Code, ss.302(1), 271 - Weissensteiner v. The Queen (1993) 178 CLR 217 - R v. Beck [1990] 1 Qd.R. 30.
Counsel:	Mr T. Carmody for the Appellant
Mrs L. Clare for the Respondent
Solicitors:	Legal Aid Office for the Appellant
Queensland Director of Public Prosecutions for the Respondent

Hearing Date: 7 August 1996

REASONS FOR JUDGMENT - THE CHIEF JUSTICE

I express my general agreement with what has been said by the President and Derrington J. on the significant strength of the evidence available to support the verdict at which the jury arrived in this case. That verdict cannot be regarded as unsatisfactory. The appellant did not give evidence but he had supplied statements to the police in which eventually, and only after earlier falsehoods, he admitted the assault which resulted in the death of the victim. Those lies and the steps the appellant had taken to conceal the cause of the deceased's death were important parts of the case against him. The additional evidence indicating that the deceased had been struck on the head more than once with the metal nozzle of a hose using substantial force with the admitted consequence that death followed, did not leave any room for the assertion that it was unsafe to conclude that the appellant may have lacked the intent which was a necessary ingredient in murder. Equally, the suggestion that the possibility of self defence had not been excluded involved no more than an appeal to an unjustified speculation. Any self-serving aspects found within the appellant's accounts that in other respects contained admitted falsehoods, would not have stood in the way of rejection of that defence: cf. the observations in R v. Beck [1990] 1 Qd.R. 30 at 33.	Judgment delivered 06/09/1996.` appellant unopposed by any sworn evidence from him. The appeal should be dismissed.
EASONS FOR JUDGMENT - FITZGERALD P.
R
Judgment delivered 06/09/1996 murder of Brian John Duncan on board a fishing vessel, “The Charisma”, off the coast of Queensland on 24 September 1993. It is not disputed that the appellant killed Duncan and disposed of his body at sea, and no objection was made to the trial judge’s directions to the jury. However, it is submitted that the appellant’s conviction for murder was unsafe and unsatisfactory because the prosecution did not prove beyond reasonable doubt (i) that the appellant intended to kill Duncan or cause him grievous bodily harm (Criminal Code, sub-s. 302(1)(a)), or (ii) that the appellant did not act in self defence against an unprovoked assault by Duncan (a) using only such force as was reasonably necessary to make effectual defence against the assault, which force was not intended, or such as was likely to cause death or grievous bodily harm to Duncan (sub-s. 271(1)) or (b) the nature of the assault by Duncan which the appellant asserted, pointing a gun at the appellant’s chest while standing several feet or metres away, caused the appellant reasonable apprehension of death or grievous bodily harm and he believed, on reasonable grounds, that he could not preserve himself from death or grievous bodily harm except by the force which he used (sub-s. 271(2)).
A gun was found on the vessel by police, where the appellant had hidden it. Apart from any possible relevance which that might have had to his claim of self-defence, the only evidence which might have raised the possibility of such a defence consisted of some of the statements made by the appellant to police, which the jury plainly - and with obvious justification - disbelieved. There is no doubt that at least some of the appellant’s statements to police were lies. Once this point is reached, there was no reason to further consider any issue related to self-defence.
It is difficult to find any arguable basis for the appellant’s contention that intent was not proved. He struck Duncan’s head more than once with a hard object. There was no suggestion that Duncan had a more than usually fragile skull.
The appellant then told lies about what had occurred and his role, first to the fleet master and later to police; at least some of what he said must have been false because of contradictions, and it was open to the jury to disbelieve all his versions and would have been reasonable for it to do so. As stated, he also disposed of Duncan’s body at sea.
The appellant’s principal argument seems to be that the prosecution theory concerning how Duncan was killed was not proved beyond reasonable doubt. Assuming that to be so, I cannot see why a reasonable jury was required to have a reasonable doubt that the essence of the appellant’s story might possibly have been true; that he had struck Duncan blows which were intended only to disarm him, not kill him or cause grievous bodily harm, but the blows had an unintended effect either directly or by causing Duncan to fall and strike his head, producing the injury which led to his death. It escapes me why in the circumstances referred to it was not open to the jury to conclude that the necessary intent to kill or cause grievous bodily harm was the only rational and reasonable inference.
The appeal should be dismissed.

REASONS FOR JUDGMENT - DERRINGTON J

Judgment delivered 6 September 1996

The appellant was convicted of the murder of a man named Duncan on board a fishing vessel off the coast of Queensland. The ground of appeal is that the conviction was unsatisfactory because the evidence was insufficient to exclude a defence of self-defence or, alternatively, to establish an intention to kill or cause grievous bodily harm. It will be convenient to refer hereafter only to the intention to kill, but the alternative intention should be understood to be included.

The prosecution case was circumstantial because the appellant and Duncan were the only two persons present at the time and although the appellant admitted that he killed Duncan, he claimed self-defence and the absence of any intention to kill. The prosecution case was made more difficult by the absence of the body, which the accused admitted disposing of at sea.

When first questioned by the fleet master and subsequently the police, he denied all knowledge of Duncan's disappearance but subsequently, on being confronted with seriously incriminating evidence, particularly the presence of some of Duncan's blood on his belongings, he changed his story dramatically. His new version took this form: Duncan had threatened him with a gun because of some rivalry over a woman and in self-defence he struck Duncan twice on the head with an object that formed part of some lifting gear, causing him to fall through a hatch into the tiller compartment below. He closed the hatch at that time but later lifted it to see the body lying apparently lifeless on the floor. After confirming the death, he threw the body overboard and attempted to clean up the blood that had been splashed and spilled. However, as it turned out the compartment was dark and he was not entirely successful.

There was ample evidence for the jury to reject the self-serving features of this account and the claim of self-defence, and to have come to the conclusion that Duncan was killed by the appellant by more than one blow to the head with the metal nozzle end of a hose to which blood, tissue and hair were found adhering; and that this took place in the tiller compartment itself. As no other foundation for self-defence was raised, the justified rejection of the claim that was made disposes of that issue, leaving only the question of the adequacy of the proof of his intention when he struck the blows.

Of course, the rejection of his story did not provide positive proof of his guilt and he did not give evidence. No adverse inference against him can be drawn from this. However his failure to take the opportunity to give evidence of matters peculiarly within his knowledge that would contradict or provide an innocent explanation for the evidence led tending to prove his guilt permits the jury more easily and safely to discount doubts as to the inferences to be drawn from that evidence. In particular, "hypotheses consistent with innocence may cease to be rational or reasonable": Weissensteiner v. The Queen (1993) 178 CLR 217, 227-228, applying a principle of long standing.

In this light the evidence was perfectly adequate to establish the element of intention. An expert who examined the metal hose with its adhesions concluded that it had impacted more than once with the same area of the victim's head with medium-velocity force. This was consistent with the appellant's own statement that the two blows to the head which he had struck were "fairly hard", even though his account otherwise was obviously found to be untruthful. The location and extent of bloodstains, either as found by expert investigation or by inference from the normal position of objects that the appellant had thrown overboard because they were bloodstained, were also consistent with a very violent attack, and on the appellant's own admission, the blows had been sufficient to kill Duncan. Together, these facts are sufficient to prove inferentially to the required standard the appellant's intention to kill him.

They are fortified by the appellant's disposal of the body and attempts to conceal the event by various means. He also subsequently lied about it in his statements to the fleet master and the police. Allowance must be made for the possibility of panic as the motivation for the disposal of the body, and the usual profound caution must be adopted in respect of out-of-court lies. However in this instance these facts can contribute some circumstantial support for the inference of an intention to kill to be drawn from the other evidence.

However it is not necessary for the respondent to have recourse to these peripheral supports. The degree of force with which the metal hose was used to administer at least two blows to Duncan's head and the fact that the attack was sufficient to kill him together establish a very strong inference of that intent. The absence of any credible alternative explanation from the appellant permits such a conclusion to be more safely drawn.

The appeal should be dismissed.