R v Pickard

[1999] QCA 462

SUPREME COURT OF QUEENSLAND

CITATION:	R v Pickard [1999] QCA 462
PARTIES:	R v PICKARD, Glenda Rae (Appellant)
FILE NO/S:	CA No 243 of 1999 Indictment No 97 of 1999
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against conviction
ORIGINATING  COURT:	Supreme Court at Toowoomba
DELIVERED ON:	5 November 1999
DELIVERED AT:	Brisbane
HEARING DATE:	1 November 1999
JUDGES:	Davies and Thomas JJA and Atkinson J
ORDER:	Appeal against conviction dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – appellant convicted of attempted murder, unlawful use of a motor vehicle and arson of the motor vehicle – whether appellant intended to kill the complainant – appellant did not give evidence at the trial – whether her case was properly put at trial – whether open to jury to convict.
COUNSEL:	Appellant appeared on her own behalf Mr D Bullock for respondent
SOLICITORS:	Appellant appeared on her own behalf Director of Public Prosecutions (Queensland) for respondent

1. THE COURT: The appellant was convicted after a trial in the Supreme Court on one count of attempted murder, one of unlawful use of a motor vehicle and one of arson of the motor vehicle. No defence at the trial was presented against the charges of unlawful use or arson. The only issue at the trial appears to have been whether the appellant intended to kill the complainant. The principal witness at the trial was the complainant. The appellant did not give evidence and the complainant and the appellant were alone together when it was alleged the attempt occurred. That was on the night of 27 May 1998.

2. Prior to that time there had been bad feelings between the appellant and the complainant. The complainant and her husband lived in a house on a property at Beelbee Road, Beelbee in the Dalby area. The appellant lived alone in another house on the property. She assisted the complainant's husband in his work on the property and did some domestic work for the complainant, on one day a week until shortly before the night in question. According to the complainant, and this was not contradicted, the appellant was attracted to the complainant's husband. The extent to which that feeling was reciprocated is unclear. But it resulted in some arguments between the complainant and the appellant and in the complainant finding, in her husband's possession, a document written by the appellant making derogatory remarks about her. By the time of the events in question the relationship between them was, according to the complainant, very hostile.

3. On 26 May the complainant's husband attended Toowoomba General Hospital where he was admitted overnight. He had apparently driven the complainant's car to the hospital.

4. On that night, according to the complainant, the appellant approached the complainant and offered to drive her, the next day, in a car owned by one of the other residents on the property, to the hospital so that she could pick up her car to drive to her part-time employment that day. The complainant originally rejected the offer but when it was renewed the following morning, the morning of 27 May, she accepted. As it turned out the owner of the car, Mr King, his wife and the appellant accompanied the complainant to Toowoomba where the complainant was to work.

5. The complainant on that day worked a long period, from approximately nine in the morning to approximately nine at night. After completing work she said she telephoned her husband, who was, by now, back at their home. She then went to a hotel in Toowoomba where she bought something and then commenced her drive home which usually took about 40 minutes. This involved her driving along the Condamine Highway and turning off it into Beelbee Road which she did at about 9.43 pm. Shortly after doing so she saw a yellow car, which turned out to be Mr King's car, parked on the left hand side of the road with its lights flashing. This was about 200 metres along Beelbee Road from its intersection with the Condamine Highway. The appellant was standing in the middle of the road waving her hands indicating that the complainant should stop. The complainant did so. The appellant told her that the car which she had been driving had no gears and asked if she could have a lift home. The complainant agreed.

6. The appellant then entered the front passenger seat of the car with two bags, a small handbag and another larger bag about two feet long. The complainant then telephoned her husband, said that she had the appellant with her and that the appellant had broken down and that she would be home soon. She left this message on her husband's answering machine, her husband having earlier said that he was going to bed early.

7. They then travelled about 14 kilometres along the road to a gate which needed to be opened and closed. The appellant, who closed the gate, returned to the car. Almost immediately after she did so and they had started off, the complainant felt two hard hits on the side of her head. The appellant said "It's a crowbar you bitch". The complainant's glasses were smashed from her face, she stopped the car and attempted to get out. In fact she had driven the car off the road although she did not know this at the time. Almost immediately the appellant who had alighted from the car quickly, commenced attacking her again with the weapon, which as it later appeared was a tyre lever. The complainant thought that she was struck about seven times with it. They were hard blows. She was stunned and shocked and could taste blood running down into her mouth. One blow was on the jaw, the rest to the top of her head to the back and behind it. The complainant managed to take hold of the tyre lever but the appellant hit her hard with her hand and she fell. She went down onto her knees and elbows and the appellant then sat on her back. The tyre lever had fallen underneath the complainant and the appellant demanded it back. Naturally the complainant refused.

8. During all this time a struggle continued and the appellant told the complainant that she hated her, that she was in love with her husband and that her husband had asked the appellant to do this. She said that the complainant did not deserve to live and that it would be worth going to gaol to get rid of her. Her voice was full of malice and she said several times that she was going to kill the complainant.

9. During the course of this struggle the appellant attempted to strangle the complainant with her hands tightly around the complainant's throat. She put her fingers in the complainant's mouth and tried to gouge her eyes. She put her fingers up the complainant's nose and stuffed the sleeve of her jumper into the complainant's mouth. The complainant continued to struggle though she felt herself weakening.

10. The appellant then said that she was going to run the complainant over in the car and kill her. She then went towards the car and the complainant made her escape.

11. A tyre lever was later found at the scene and the car was later found burnt.

12. The facts as we have stated them are disputed in a number of respects by the appellant who conducted her own appeal. It should be said of the appellant that she appeared to be very intelligent and articulate and said everything that could be said in support of her appeal which was on the ground that the verdict was unsafe and unsatisfactory. It should also be said, however, that, as with many appellants in person, she sought to go outside the matters which could properly be raised in an appeal and outside her sole ground of appeal and was given considerable latitude in those respects by this Court.

13. A fundamental difficulty facing the appellant in now disputing the above facts is that, in respect of all of them, the evidence is uncontradicted. She sought to meet this difficulty by making some submissions about the circumstances in which she elected not to give or call evidence. At one stage of her argument the appellant appeared to be asserting that she was not given the opportunity to give evidence but when confronted with the affidavit of her trial counsel to the contrary she agreed that she had been advised not to give evidence but told that the decision was hers.

[14]     The appellant also made some more general submissions about her legal representation based on the facts that her original trial counsel became unavailable and that counsel who represented her had little time to take her instructions. However she was unable to point to any matters which were not put as part of her case below which would have helped it had they been put.

1. The appellant's main argument in this Court was that, although she intended to assault the complainant she did not intend to kill her. That is precisely the case which was put on her behalf at the trial both in cross-examination and, as appears from his Honour's summing up, from the submissions of her counsel. Nothing emerged from the course of argument in this Court which caused us to doubt that her case had been properly put below.

2. No doubt it would have been possible for the jury to have had a reasonable doubt as to whether the appellant had the relevant intention. The absence of very serious injury to the complainant, the fact that the extent of the violence of the assault decreased as the assault progressed and the absence of any realistic prospect of the appellant running over the complainant in the car when she threatened to do so would have lent support to the contention that she did not. On the other hand there was adequate evidence upon which the jury could have been satisfied that the appellant had the relevant intention. She said that she did and her vicious and unprovoked attack indicated that she was bent on carrying it out, at least for a time. Evidence consistent with a subsequent abandonment of that intention is not inconsistent with that earlier intention or with the assault with that intention.

3. In our view therefore the appeal must fail and we would dismiss it.