R v Pilcher

Case [2020] QCA 8

SUPREME COURT OF QUEENSLAND

CITATION:

R v Pilcher [2020] QCA 8

PARTIES:

R
v
PILCHER, Dane Andrew
(appellant)

FILE NO/S:

CA No 179 of 2017
SC No 99 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Townsville – Date of Conviction: 4 August 2017 (North J)

DELIVERED ON:

4 February 2020

DELIVERED AT:

Brisbane

HEARING DATE:

31 May 2019

JUDGES:

Fraser and McMurdo JJA and Crow J

ORDERS:

1.   Appeal allowed.

2.   The conviction be set aside.

3.   The appellant be re-tried on the charge of murder.

CATCHWORDS:

CRIMINAL LAW – GENERAL MATTERS – CRIMINAL LIABILITY AND CAPACITY – DEFENCE MATTERS – PROVOCATION – where the appellant was convicted of the murder of a woman with whom he had been in a sexual relationship – where the deceased had taken steps to end the relationship with the appellant and begin a relationship with another person – where the appellant learned of this new relationship, became intoxicated, then broke into the deceased’s apartment seeking to find the deceased’s new partner – where the deceased confronted the appellant and asked him to leave before arming herself with a knife – where the appellant gave evidence that a struggle for the knife then ensued – where the appellant killed the deceased by stabbing her with a knife 21 times – where the appellant argued at trial that he was provoked by the deceased’s obtaining of the knife and therefore the partial defence of provocation in s 304 of the Criminal Code (Qld) applied – where the prosecutor submitted that the sudden provocation was based on the deceased’s actions to end the relationship – where the trial judge did not direct the jury to decide whether s 304(3) was fulfilled, namely whether the sudden provocation was based on anything done or believed to be done by the deceased to end or change the nature of the relationship – whether the trial judge erred by not directing the jury to make a finding of fact as to whether the appellant was provoked by something done by the deceased to end or change the relationship

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – CONDUCT OF PROSECUTOR OR PROSECUTION – where the prosecutor cross-examined the appellant and without leave asked questions to the effect that the appellant had deceived the deceased throughout their relationship – where the prosecutor inappropriately made comments to the jury in the form of questions to the appellant such as whether the deceased had “a reasonable expectation of a long and happy, healthy life” – where the prosecutor in their closing expressed some arguments in strong terms such as that “forgetfulness is the first refuge of the guilty mind” – whether the questions as to deception tended to show that the appellant was of bad character, in contravention of s 15(2) of the Evidence Act – whether the questions as to deception were relevant to an issue in the trial –…

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AGLC
R v Pilcher [2020] QCA 8
Case
[2020] QCA 8
Decision Date

CaseChat Overview and Summary

The appellant in this case was convicted of the murder of Corinne Henderson, with whom he had been in a sexual relationship. The deceased had taken steps to end the relationship and begin a new one with another person. Upon learning of this, the appellant, who was intoxicated, broke into the deceased's apartment seeking to confront her new partner. A struggle ensued, during which the appellant stabbed the deceased 21 times, resulting in her death. The appellant argued that he was provoked by the deceased obtaining a knife, invoking the partial defence of provocation under s 304 of the Criminal Code (Qld). However, the trial judge did not direct the jury to determine if the provocation was based on actions taken by the deceased to end or change the nature of the relationship, which is a necessary condition under s 304(3).

The court had to decide if the trial judge's omission to direct the jury on the specific element of the provocation defence constituted a legal error. Additionally, the court examined whether the prosecutor's conduct during the trial, including inappropriate cross-examination and inflammatory closing remarks, affected the fairness of the trial and whether it resulted in a miscarriage of justice. The prosecutor questioned the appellant about his deception in the relationship and made comments to the jury that could be perceived as leading or prejudicial. The appellant argued that these actions contravened evidentiary rules and potentially prejudiced the jury against him.

The court found that the omission to direct the jury on the specific element of the provocation defence was indeed an error, as it might have led to an acquittal if properly considered. Regarding the prosecutor's conduct, while the remarks and questions were inappropriate, the court concluded that they did not reach the threshold of causing a miscarriage of justice. The appeal was allowed on the ground that the jury was misdirected on the provocation defence, leading to the conviction being set aside and a retrial being ordered on the charge of murder.

Orders

Orders of the court

1. Appeal allowed.

2. The conviction be set aside.

3. The appellant be re-tried on the charge of murder.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The first ground of appeal is that the jury was misdirected about s 304. The second ground is that the prosecutor’s cross-examination of the applicant contravened s 15(2) of the Evidence Act 1977 (Qld), by leading evidence of bad character without seeking leave to do so, and was otherwise unfair. The third ground of appeal is that the prosecutor’s final address to the jury included inappropriate and inflammatory remarks, which may have improperly influenced the outcome.The evidence at the trial The appellant met the deceased when they worked at a mine, and they began a relationship which lasted for about two years. They each had a home in Townsville, and he sometimes stayed at her unit when neither was at the mine. In about July 2015, she took steps to end the relationship, by sending him text messages and changing the locks to her unit. The appellant found it difficult to accept that the relationship was ending. He became suspicious that she had formed a relationship with another man. The deceased had begun a new relationship, and on the day on which she was killed, she and that man, Mr Wickham, together with her parents who had come up to Townsville from Tasmania to see her, went to the races. Photographs of their group at the races went on Facebook. A man who worked at the mine with the appellant saw the photographs and decided to forward to the appellant one of the pictures, which showed the deceased and Mr Wickham. By the time that the appellant had seen this photograph, he was already in a poor emotional state. On the previous evening, according to his own testimony at the trial, he had become “very distressed and upset and emotional”, and had had something of “an emotional meltdown at home.”[2] He said that he was then “struggling with everything in my life that was going on at that point”, including the end of his marriage (resulting from his relationship with the deceased), his financial difficulties and what he called “the business with Corinne”.[3] On the following day, he began drinking at about lunchtime, first at a pub and later at the Cowboys Leagues Club. It was there that he received the text message which contained the photograph of the deceased and Mr Wickham, whom the appellant knew from the mine. The appellant testified that when he saw the photograph, he was “[a]bsolutely gutted … angry, and … completely taken aback.”[4] The appellant said that he had heard rumours of a relationship between her and Mr Wickham, but she had “continually denied it.”[5] He said that it then appeared that his “fears of their having a relationship were … well founded.”[2]AR 314.[3]Ibid.[4]AR 317.[5]Ibid. By this time of the night, he testified, he was “very drunk”, and when asked to put his drunkenness on a scale of one to 10, he answered that it was “about a seven”.[6] He decided to leave the club and called for a taxi. Video footage of the appellant in the taxi, and stopping at a service station during the trip, was played to the jury, and the appellant’s trial counsel suggested to the jury that it demonstrated the appellant’s heavy intoxication.[6]Ibid.

Decision

Reasons for decision

At least some of those arguments were centrally relevant to the jury’s deliberations. The submissions were certainly expressed in strong terms, which would not be used by every competent prosecutor. It should be said here that a dispassionate consideration of the evidence and arguments is likely to be assisted by a dispassionate address from counsel representing the Crown. But that does not mean that every departure from that practice will result in a miscarriage of justice. The question is one of degree, and will obviously depend upon the facts, circumstances and issues of the particular case. In my conclusion, the appellant’s argument here, on ground 3, has failed to demonstrate a miscarriage of justice.Conclusion and orders The appeal should be allowed, because the jury was not instructed to consider the question of whether the evidence engaged s 304(3). As that question might have been answered in the appellant’s favour, it is possible that he lost the chance of an acquittal on the charge of murder. I would order as follows:1. Appeal allowed.2. The conviction be set aside.3. The appellant be re-tried on the charge of murder. CROW J: The factual background of the killing of Corinne Henderson on 26 September 2015 are set out in the reasons of McMurdo JA. I have had the benefit of reading those reasons, and I agree with reasons and orders proposed by his Honour on grounds 2 and 3 of the appeal. I am unable to agree with his Honour’s conclusion on ground 1 of the appeal for the reasons that follow. According to the appellant, after the he had broken into the deceased’s unit by smashing his way through a kitchen window, and cutting his arm in the process, the deceased asked him on six occasions to leave her apartment. The appellant then says he pushed past the deceased, walked down the corridor, and looked for other persons in the unit, namely, Mr Wickham. The appellant’s evidence was that the deceased then obtained a kitchen knife which the appellant said was held by the deceased “in a non-threatening manner”.[50][50]T5-14/6. On the appellant’s version, he admits the deceased refused to answer his questions as to whether the deceased was having a relationship with another man and whether their relationship had ended. He says the deceased did not answer that question but rather on a further six occasions asked the appellant to leave her unit. According to the appellant, after being asked on 12 occasions to leave the unit, he went to grab the deceased by the hips which resulted in the deceased striking the appellant on his left shoulder with the kitchen knife. His version, as set out in paragraphs [23] and [24] of the reasons of McMurdo JA, was that he “just reacted to being stabbed in the arm” but “didn’t consciously try to stab her at all”. It was a matter for the jury whether they accepted the appellant’s evidence as to what occurred in the deceased’s unit on 26 September 2015. The jury had before it evidence from the appellant that he was extremely emotional and angry. He had sent a text message to his friend Ms Gillam that he would “kill them both” at 10.19 pm “[t]his is going to happen” at 10.21 pm. These texts were about half an hour before the deceased was killed. The deceased’s body was found not only with the fatal stab wounds but a further twenty stab wounds, with multiple wounds to the deceased’s fingers and hands, and also her face.

Ratio Decidendi

Legal Principle Established

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