R v Pearce

Case [2016] QCA 126

SUPREME COURT OF QUEENSLAND

CITATION:

R v Pearce [2016] QCA 126

PARTIES:

R
v
PEARCE, Blaze Seaton
(appellant)

FILE NO/S:

CA No 307 of 2014
SC No 9 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Mackay – Date of Conviction: 3 November 2014

DELIVERED ON:

10 May 2016

DELIVERED AT:

Brisbane

HEARING DATE:

29 February 2016

JUDGES:

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

ORDER:

The appeal is dismissed.
CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – OTHER MATTERS – where the appellant was found guilty by a jury of murder – where the appellant killed the deceased, an acquaintance of his, in an attack in the deceased’s unit, whilst the deceased’s housemate was in the shower upstairs – where the appellant inflicted numerous injuries on the deceased, both non-fatal and fatal – where the prosecution case was that the appellant launched an unprovoked attack, beating the deceased with a frying pan, then fatally stabbing him – where the defence case was that the appellant confronted the deceased about having been previously sexually assaulted, when the deceased reacted violently and attacked the appellant, who killed the deceased in self-defence – where the appellant gave evidence at trial – where the jury rejected the evidence given by the appellant as to what occurred inside the deceased’s unit, and thus rejected the argument of self-defence – whether the verdict was unreasonable or insupportable having regard to the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – where the appellant contends that the learned trial judge misdirected the jury on a number of factual matters – where the appellant contends that it was put to the jury by the prosecution that the deceased had been stabbed after he had been rendered unconscious, when there was no evidence to support that proposition – where the appellant contends that this should have been criticised by the learned trial judge – where the prosecution at trial proffered the opinion that self-defence should be rejected because the appellant suffered no injuries – where the appellant contends that the learned trial judge should have corrected that opinion and directed the jury that the absence of injury was not consistent with the deceased having attacked the appellant and being unable to injure him – where the learned trial judge referred to the evidence of an expert witness, a pharmacologist, by referencing the normal behaviours of a person who had taken methylamphetamine – where the appellant contends that this remark by the learned trial judge led the jury to believe he was thinking rationally and that this amounts to a misdirection – where the appellant contends that a direction by the learned trial judge as to the placement of…

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R v Pearce [2016] QCA 126
Case
[2016] QCA 126
Decision Date

CaseChat Overview and Summary

In the matter of R v Pearce, the appellant was found guilty by a jury of the murder of the deceased. The appellant had killed the deceased, an acquaintance, in an attack in the deceased's unit while the deceased's housemate was in the shower upstairs. The prosecution's case was that the appellant launched an unprovoked attack, beating the deceased with a frying pan and then fatally stabbing him. The defence argued that the appellant confronted the deceased about a previous sexual assault, resulting in the deceased attacking the appellant, who then killed the deceased in self-defence.

The court was required to determine whether the verdict was unreasonable or insupportable having regard to the evidence, and whether there were misdirections by the learned trial judge amounting to a miscarriage of justice. The appellant contended that the learned trial judge misdirected the jury on several factual matters, including the absence of evidence that the deceased had been rendered unconscious before being stabbed, and the suggestion that the absence of injury on the appellant was inconsistent with the deceased having attacked him. The appellant also argued that the learned trial judge misdirected the jury in relation to the normal behaviours of a person who had taken methylamphetamine and the placement of a blue garbage bin in the accused's unit.

The court found that the appellant's arguments were without merit, as the learned trial judge had accurately referred to the evidence of Professor Brown, the pharmacologist, in relation to the effects of methylamphetamine. The court also found that the direction regarding the blue garbage bin did not lead the jury to believe that the killing was premeditated. The court concluded that the appeal should be dismissed, as all grounds of the appeal had failed.

In conclusion, the appeal was dismissed by the court, as the arguments raised by the appellant were found to be without merit. The court found that the learned trial judge had not misdirected the jury, and that the verdict was not unreasonable or insupportable having regard to the evidence. The court found that the appellant's arguments regarding the normal behaviours of a person who had taken methylamphetamine and the placement of the blue garbage bin were also without merit. The court found that the evidence of demeanour on the part of the appellant was not relevant to Professor Brown's evidence, and that the jury were not left to assume that the witnesses were describing the rational thinking to which Professor Brown was referring.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Ms Steedman had been in the unit with Gelens and Drabsch during the day, before the altercation occurred. She was visiting a friend at the time. She met Pearce for the first time that day. Her evidence as to the events was:(a)she and Pearce went to get some wine;[28] when they got back to the unit there was just herself, Drabsch and Pearce;[29] Pearce had some wine, “he wasn’t having much”;[30] Pearce was “very nice and very calm”;[31](b)Ms Steedman went back and forth to her friend’s unit,[32] but was at her friend’s unit after 5 pm, when she was watching the news;[33] she saw Pearce going into Gelens’ unit; at one point she went to Gelens’ unit where he tried to cook some food for her, but she returned to the friend’s unit; at that time there were just Pearce and Gelens there, sitting next to each other on the couch;[34](c)she only saw Pearce act aggressively on one occasion when he kicked a table into Drabsch’s knees, which smashed a cup;[35](d)after a while she heard “loud thumping noises”;[36] the noise was a “kind of hollow hitting noise”, a “hollow big bang”;[37](e)she was standing outside and could see into Gelens’ unit;[38] she could see Pearce moving his arm, with a saucepan;[39] he moved his arm in a hitting motion; she could not see Gelens;[40](f)she told the boys at her unit that something was happening and they should go with her to check it out, but no-one wanted to come;[41] she went over partly because her phone charger was there;[42](g)she went to Gelens’ unit and looked inside; there was blood everywhere all over the couch and on the floor; Gelens was on the floor near the couch;[43](h)Pearce was standing over Gelens, spitting on him;[44] Pearce walked toward her with a knife in his hand;[45] in cross-examination she maintained it was a knife;[46] at this time Pearce was “very calm”;[47] Ms Steedman asked if Gelens was all right and Pearce responded, “can’t you fucking see he’s not all right?”; then Pearce said “he fucking deserved – I knew he was at it again, Mick”;[48](i)Ms Steedman said that Pearce called out to Drabsch, and when Drabsch came down and saw the blood and the body he asked “Is he all right?”, to which Pearce responded: “does he fucking look all right? Do you want to be next? … do you want to be like that?”;[49](j)then Drabsch tried to see if Gelens was okay, but Pearce wouldn’t let him; Drabsch tried to call the police or the ambulance, and Pearce tried to take the phone; she asked Pearce to give her a “phone charger or the scissors or something” and Pearce went to get it.[50][28]AB 61.[29]AB 62.[30]AB 79.[31]AB 63.[32]AB 80.[33]AB 63.[34]AB 70, 82.[35]AB 81, 82.[36]AB 70.[37]AB 71.[38]AB 71.[39]AB 72.[40]AB 73.[41]AB 84, 88.[42]AB 88.[43]AB 73, 88.[44]AB 74, 76, 88.[45]AB 75, 76, 77.[46]AB 84-87, 88.[47]AB 77.[48]AB 77. The reference to “Mick” is to Gelens.[49]AB 77, 88.[50]AB 77.Evidence of others Ms Lawton was staying in a neighbouring unit. She returned home from shopping at about 5.30 pm, when she saw Pearce out the front of one of the units. About 6.30 pm she heard “thumping noises”, but no voices, coming through the wall. It went on for five minutes and then music was heard. About 20 minutes to half an hour later Pearce walked up to her gate. He was wet on his hair and face.[51] In cross-examination she said the noises sounded like fighting.[52][51]AB 94.[52]AB 95.

Decision

Reasons for decision

Therefore, this ground does not succeed.Conclusion For the reasons above, all grounds of the appeal have failed. I would order that the appeal be dismissed. MARTIN J: I agree with Morrison JA.

Ratio Decidendi

Legal Principle Established

I do not accept the submission that the learned trial judge should have said more about this issue. To do what is submitted would have run the risk of countermanding the effect of an early direction to the jury, namely that what counsel puts to a witness is not evidence.[128][128]AB 232 lines 29-43.Unsupported opinion on rational thinking This ground focussed on the evidence of Professor Brown, the pharmacologist. In summing up his evidence, the learned trial judge ended with this remark:[129]“He agreed that if a person was seen to be speaking with a voice that was at a normal pace, it will be inconsistent with a severe effect from methylamphetamine; also, if the person was showing perfectly normal, rational thinking, then it would suggest the methylamphetamine had not been taken at a high dose.”[129]AB 243. That was an accurate reference to the evidence of Professor Brown in cross-examination, when he was being asked to consider the apparent indicia of the effects of methylamphetamine. Having referred to the levels in the blood, and the rate at which it was removed by the body, this exchange occurred:[130]“Now, if somebody was suffering from severe effects at the time of an event, they’re unlikely to be seen by others to be calm; is that right?---Again, there’s – yeah, there’s a gradation in effects, here. A very tolerant patient seen by an observer who was excited at the time because of what was happening, for example, may not recognise it. Certainly, a naïve patient with a high dose: it’s very obvious to everyone.So if the voice was at a normal pace, that would be inconsistent with a severe effect?---Yes. I mean, the severe effects are – yeah – as you’ve seen in the report: the talking a lot, excitability, hyperactivity.What about rational thought? If somebody’s capable of demonstrating rational thought, is that inconsistent with having a severe effect?---Rational thought is, yeah, a difficult concept to measure. But, yeah, if someone is showing perfectly rational thinking, yes, it does decrease the – yeah, there can’t have been a high dose, there.What about if they are fully coordinated, so physically coordinated?---Amphetamines don’t have a major effect on coordination, unlike ethanol. So amphetamines don’t have those effects. So the person is excited, but they’re not uncoordinated.All right. But you would expect to see some intoxic effect – some volubility or hyperactive reflexes?---Yes, I would, if there was sufficient drug in the system.”[130]AB 211. The complaint was that the direction encouraged the jury to compare Professor Brown’s evidence on that point to the evidence of demeanour on Pearce’s part, when Professor Brown was not asked to comment on the evidence of Pearce’s demeanour at any point. Therefore, it was said, the jury were left to assume that when witnesses referred to Pearce’s demeanour in terms such as calm, fine, nice, compliant or nonchalant, they were describing the rational thinking to which Professor Brown was referring.[131][131]Appellant’s outline paragraph 54.