R v Pablo - [2021] QCA 41

SUPREME COURT OF QUEENSLAND

CITATION:

R v Pablo [2021] QCA 41

PARTIES:

R
v
PABLO, Aaron Nelson
(applicant)

FILE NO/S:

CA No 25 of 2020
SC No 42 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction)

ORIGINATING COURT:

Supreme Court at Cairns – Date of Conviction: 10 June 2010 (Douglas J)

DELIVERED ON:

12 March 2021

DELIVERED AT:

Brisbane

HEARING DATE:

16 October 2020

JUDGES:

Fraser and McMurdo and Mullins JJA

ORDER:

Application for an extension of time within which to appeal conviction is refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where the applicant was convicted of murder – where the applicant sought leave to appeal against conviction almost 10 years later – where the delay was unexplained – whether refusal to grant the application for an extension of time could result in a miscarriage of justice

CRIMINAL LAW – GENERAL MATTERS – CRIMINAL LIABILITY AND CAPACITY – DEFENCE MATTERS – PROVOCATION – OBJECTIVE TEST: ORDINARY PERSON – where the applicant killed his daughter by stabbing her over 20 times – where the applicant poured petrol over the deceased’s body – where the applicant explained his actions as a response to his daughter “talking back” and her refusal to stay home and clean the house – whether the deceased’s conduct could have caused an ordinary person to lose self-control

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the deceased suffered extensive injuries – where the applicant locked his step-daughter in the bathroom to prevent her from intervening – whether it was open to the jury to be satisfied that the applicant had the requisite intention to kill or do grievous bodily harm

Criminal Code (Qld) s 304, s 728(3)

R v GV[2006] QCA 394, cited
Stingel v The Queen (1990) 171 CLR 312; [1990] HCA 61, applied
Van Den Hoek v The Queen (1986) 161 CLR 158; [1986] HCA 76, applied

COUNSEL:

The applicant appeared on his own behalf
M A Green for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

FRASER JA: I agree with the reasons for judgment of McMurdo JA and the order proposed by his Honour.
McMURDO JA: On 10 June 2010, the applicant was convicted of the murder of his 17 year old daughter. He was sentenced to the mandatory term of life imprisonment, with eligibility for parole after 15 years. Approximately 21 months of pre-sentence custody was declared as time served.
He did not challenge his conviction within the time allowed for an appeal. It was not until 2020 that he did so, when he filed this application for an extension of time in which to appeal. His delay is unexplained. However, as the respondent accepts, an application to extend time…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Pablo

Details

AGLC: R v Pablo [2021] QCA 41
Case: [2021] QCA 41
Decision Date: 12 March 2021

CaseChat Overview and Summary

The case of R v Pablo involved an appeal against a conviction for murder, brought before the Queensland Court of Appeal. The applicant, convicted of killing his daughter by stabbing her over 20 times and subsequently setting her body alight, sought leave to appeal almost a decade after the conviction. The delay in filing the appeal was unexplained, and the primary issue before the court was whether the refusal to grant an extension of time for the appeal could lead to a miscarriage of justice. Additionally, the court had to determine if the deceased's conduct could have provoked an ordinary person to lose self-control, potentially reducing the offence from murder to manslaughter, and whether the jury could reasonably conclude that the applicant intended to kill or cause grievous bodily harm.

The court reviewed the evidence presented at the trial, which showed that the applicant killed his daughter following an argument and locked his step-daughter in the bathroom to prevent her from intervening. The applicant’s defence argued that there should have been a reasonable doubt about his intent to cause death or grievous bodily harm. The prosecution’s evidence was largely uncontested, with no suggestion of self-defence or provocation. The court examined whether the deceased’s actions could be considered provocative enough to cause an ordinary person to lose self-control. Given the severity of the injuries and the circumstances of the crime, the court concluded that it was open to the jury to be satisfied that the applicant had the requisite intention to kill or do grievous bodily harm.

The Court of Appeal held that the applicant had failed to demonstrate any arguable ground of appeal. The extensive delay in filing the appeal, coupled with the absence of a clear legal basis for it, led the court to conclude that granting an extension of time would be futile. The court found that the applicant’s actions were not provoked by the deceased to the extent that would reduce the charge from murder to manslaughter. Furthermore, the jury’s verdict was supported by the evidence, and it was reasonable for them to conclude that the applicant intended to kill or cause grievous bodily harm. Consequently, the application for an extension of time within which to appeal the conviction was refused.

Orders

Orders of the court

Application for an extension of time within which to appeal conviction is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

His trial, which was conducted by Douglas J with a jury in Cairns, took two days. The evidence in the prosecution case was largely uncontested. The applicant did not give or call evidence. There was no question that the applicant killed his daughter in the house where they lived in Cairns. She died with more than 20 stab wounds to her body, and with fractures to the left and right sides of her jaw. Those injuries were inflicted by the applicant after they had argued. There was no suggestion of self-defence, and the applicant’s counsel conceded that no case of provocation, by which the offence of murder would be reduced to manslaughter, was raised by the evidence. The defence case was that the jury should have a reasonable doubt as to whether the applicant intended to cause death or grievous bodily harm.The evidence at the trial The prosecution called evidence from one of the applicant’s step-daughters (whom I will call S), the deceased’s mother (and partner of the applicant), investigating police officers and a pathologist, Dr Botterill. The applicant was interviewed by police, and a recording of that interview was played to the jury. S gave evidence that on that day, she had watched a football game in which the deceased played. She and the deceased then went home, intending to go out on that evening to attend a “shaving party” at the football club. After they arrived home, the deceased’s mother had left the house, at around 6.30 pm. The only persons in the house from then on were S, the deceased and the applicant. S said that she was having a shower in the bathroom, when she heard a number of banging noises and the sound of the deceased screaming. She heard the applicant say “Sorry Mariza [the deceased], sorry Mariza”. S left the shower, but found that she could not open the bathroom door. At that point, she smelt petrol. After some time, she managed to break some of the bathroom door, sufficiently to allow her to get out of the room. She then saw that what was holding the door was a rope, tied around the bathroom door handle and another door handle. She did not see the applicant. At the same time she discovered the deceased, lying in the hallway. S ran out of the house and saw her mother walking nearby. She called out to her mother but did not return to the house. The deceased’s mother gave evidence that she knew that the deceased and S were intending to go to out that evening. The mother returned home at around 8.30 pm, when S ran out of the house to her. The mother went inside the house and saw the deceased lying in the hallway. There were clothes on top of her and petrol had been spread where and near she was lying. The mother said that she panicked, and picked up the knife which was beside her daughter’s body and took it to a rubbish bin at the front of the house. She then called an ambulance. Dr Botterill gave evidence of the injuries to the deceased. In addition to the knife wounds and the fractures, there was some damage to the body from petrol. The deceased was taken by ambulance to a hospital, where she was pronounced dead upon arrival.

Decision

Reasons for decision

No further discussion of other parts of his submissions is necessary. They indicate that some assistance was provided to the applicant by someone who knew about certain cases,[11] but with no understanding of their irrelevance to the applicant’s case.[11]Eg. Dietrich v The Queen (1992) 177 CLR 292.Conclusion In summary, the applicant has failed to demonstrate any arguable ground of appeal. An extension of time within which to appeal against his conviction would be futile. I would order that the application be refused. MULLINS JA: I agree with McMurdo JA.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Pablo [2021] QCA 41
PARTIES:	R v PABLO, Aaron Nelson (applicant)
FILE NO/S:	CA No 25 of 2020 SC No 42 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Conviction)
ORIGINATING COURT:	Supreme Court at Cairns – Date of Conviction: 10 June 2010 (Douglas J)
DELIVERED ON:	12 March 2021
DELIVERED AT:	Brisbane
HEARING DATE:	16 October 2020
JUDGES:	Fraser and McMurdo and Mullins JJA
ORDER:	Application for an extension of time within which to appeal conviction is refused.
CATCHWORDS:	APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where the applicant was convicted of murder – where the applicant sought leave to appeal against conviction almost 10 years later – where the delay was unexplained – whether refusal to grant the application for an extension of time could result in a miscarriage of justice CRIMINAL LAW – GENERAL MATTERS – CRIMINAL LIABILITY AND CAPACITY – DEFENCE MATTERS – PROVOCATION – OBJECTIVE TEST: ORDINARY PERSON – where the applicant killed his daughter by stabbing her over 20 times – where the applicant poured petrol over the deceased’s body – where the applicant explained his actions as a response to his daughter “talking back” and her refusal to stay home and clean the house – whether the deceased’s conduct could have caused an ordinary person to lose self-control CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the deceased suffered extensive injuries – where the applicant locked his step-daughter in the bathroom to prevent her from intervening – whether it was open to the jury to be satisfied that the applicant had the requisite intention to kill or do grievous bodily harm Criminal Code (Qld) s 304, s 728(3) R v GV[2006] QCA 394, cited Stingel v The Queen (1990) 171 CLR 312; [1990] HCA 61, applied Van Den Hoek v The Queen (1986) 161 CLR 158; [1986] HCA 76, applied
COUNSEL:	The applicant appeared on his own behalf M A Green for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent