R v Seupule

[1998] QCA 328

[1998] QCA 328

COURT OF APPEAL
McMURDO P
MACKENZIE J

HELMAN J

CA No 70 of 1998
THE QUEEN
v.

SALIELUA FETOA SEUPULE Appellant

BRISBANE
..DATE 14/08/98
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MACKENZIE J: This is an appeal against a conviction for
murder. The appellant pleaded guilty upon arraignment to
manslaughter but not guilty to murder.

Although he appears unrepresented in this Court he was represented by experienced counsel at trial. He appeals on a number of grounds, at least some of which appear to have been drawn without legal assistance.

Apart from complaining that the conviction was against the evidence and the weight of the evidence, he also raises the issue that he does not speak English very well and did not understand the proceedings as he did not have an interpreter; that he believed that he was pleading to self-defence and never intended to plead guilty to manslaughter and that the Court should have found him not guilty by reason of self- defence as he was protecting a girl who was being beaten whilst on the ground.

In the present hearing the services of an interpreter of the Samoan language were made available to the appellant. At the trial the question of having an interpreter was not raised by anyone. The appellant this morning addressed us in English and there is nothing in the proceedings before us which gives me any concern about the sufficiency of his command of English at this time.

The accused on the evening of the incident gave a lengthy record of interview to the police. While he undoubtedly speaks with an accent the degree of comprehension of the 140898 T09/JW25 COA144/98

language as demonstrated by the responsive answers to the questions of the police officer did not suggest that he was in need of an interpreter at that time. He had completed, according to what he told them, Year 12 standard in Western Samoa, had resided in New Zealand for seven years and had come to Australia in 1992 and been in the Australian workforce since then.

In his submissions before us he complained that during the course of the interview with the police, he was affected by liquor and that he was not told that the deceased man had died. It is of course important that suspects be interviewed when they are able to give a sufficient account of themselves.

It is also important that they be made aware of the nature of the investigation which they are facing. The learned trial Judge also noted that the warning was given rather late in the course of the interview.

However, having said that there was no objection taken to the admission of the evidence of the police interview in evidence and specifically no application to have it excluded on discretionary grounds. As has been previiously said the appellant was represented by experienced counsel who appears not to have felt that the appellant was at a disadvantage by not having an interpreter nor in having the record of interview admitted in evidence.

Having regard to all of those matters there is no reason to suppose that this was a case where an interpreter was 140898 T09/JW25 COA144/98

necessary or should have been provided at trial.

With respect to his ground of appeal that he was pleading guilty to self defence and never intended to plead guilty to manslaughter the form of words used in entering the plea is suggestive of an understanding that there was at least a distinction between the offences of murder and manslaughter. On being arraigned he said, and I quote: "I say not guilty to murder but I am guilty to manslaughter."

He said that he had expressed himself in this way on the advice of his counsel. He said that he had not actually seen counsel prior to the morning of his appearance in Court. However, he did tell us today that he had had some visits from a person from his solicitor's office during the course of which he had given a statement which I take it formed the basis of instructions.

For reasons which I will develop shortly it seems to me that it is not necessary to resolve any issues relating to this aspect of the matter to adequately deal with the appeal.

It is necessary to give consideration to the evidence for the purpose of resolving the other two grounds. The facts of the matter were that the victim was a security officer at City Rowers Nightclub who died as a result of a stab wound to the chest inflicted by the appellant.

The stab wound penetrated the pectoral muscles at a downward
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angle of 30 degrees and was delivered with sufficient force to
cut through rib number three, puncture the left lung and two
of the main chambers of the heart.

Some two hours before the stabbing the deceased had refused entry to the nightclub to the appellant, his brother and a female companion because in his opinion the appellant was too drunk. The appellant punched the deceased and upon the deceased calling for assistance the appellant and his companions were evicted.

The fatal incident happened when the appellant and his brother and the female entered City Rowers in company with a group of people including off duty security officers, one of whom was a Samoan they knew and had met by chance in the street nearby.

The deceased recognised the appellant as a person he had previously barred. He was escorted to the exit stairs. The deceased took the appellant to the bottom of the stairs. A number of witnesses gave accounts of what happened after that.

As one would expect there is a variance as to what they recounted but some aspects of the incident can be pieced together from these accounts.

The female companion of the appellant attacked the deceased, repeatedly kicking, punching and shoving him. The deceased behaved in a manner towards her that was interpreted by various witnesses as defensive rather than offensive. This incident ended when the female fell down and hit her head on 140898 T09/JW25 COA144/98

the concrete after the deceased had grabbed her leg as she
kicked at him.

There was evidence suggesting that the fall was quite heavy although there are varying accounts of whether she became unconscious and how long she stayed on the ground.

The appellant and his brother came back up the stairs. While the other security officers were grappling with the appellant's brother, the appellant took a knife from his pocket as he walked upstairs towards the deceased.

Some aspects of this phase of events are shown on the security video which was tendered in evidence although the actual stabbing is not, as far as I can see.

The appellant made some comments that other parts of the video should have also been put in evidence. But as far as I am concerned what he wished to demonstrate was that he had suffered maltreatment subsequent to the incident and I can understand why the video went in in the form in which it did having regard to questions of relevance.

The appellant attacked the deceased and once again the witnesses interpreted the deceased's responses defensive. Blows were exchanged and finally the deceased pushed the appellant away. Another security officer pushed the appellant down the stairs. The deceased fell down with blood on his shirt. He got up for a short time but after being assaulted 140898 T09/JW25 COA144/98

again by the female he collapsed and never recovered. The appellant punched the deceased in the face while the deceased lay on the floor.

When the police arrived shortly afterwards the appellant said to a police officer, "It's all my fault. The other two had nothing to do with it". During the course of questioning by the detectives, the appellant's attitude varied from acknowledging that he stabbed the deceased, acknowledging the possibility that he stabbed the deceased, and denying doing so. His reason for coming back up the stairs with the knife was also stated in more than one way.

One explanation open to the jury was that he was annoyed at being unceremoniously ejected from the nightclub and wanted to carry on the fight with the deceased.

Another was that he had seen the female up-ended by the victim and wanted to scare him with a view to preventing him from doing anything more to her.

The police video recorded his demonstration of how he claimed to slash the knife at arm's length in front of him to frighten the deceased.

He also told the Samoan friend who was instrumental in getting him into the nightclub on the second occasion in the street before they went in, words to the effect that if anybody messed with him and stopped him getting into nightclubs, he 140898 T09/JW25 COA144/98

would get them. He produced a knife at that time.

After the stabbing, this witness confronted the appellant who told him that the deceased had tried to kick him out of the nightclub. The appellant gave evidence which included an account of hearing the female companion's head crack on the ground and seeing her lying there, apparently unconscious, after being upended by the leg.

He denied stabbing the deceased intentionally. He said that he was not aware that he had stabbed him. In cross- examination as to why he had come back up the stairs with the knife he alleged that the deceased was kicking the female companion in the head while she was unconscious. This was, it should be noted, contrary to the female's evidence and no other witnesses gave support to that version of events.

From what has been said it can be seen that the Crown case was relatively strong both as to the appellant's responsibility for the stabbing and his intent in doing so. A verdict of guilty of murder was plainly open to the jury subject to what is to be said about self-defence. It cannot be said in my view that the verdict was one which is open to attack on the basis that it was against the evidence and the weight of the evidence, or that it was in any other way evidentially unsatisfactory.

The plea of guilty to manslaughter is inconsistent with a plea of self-defence. The evidence suggests that the issue of an 140898 T10/TW12 M/T COA144/98

alleged assault by the deceased by kicking the female companion of the appellant was raised belatedly. The cross- examination of eye-witnesses by his counsel does not suggest that that was part of his instructions. The evidence was also contrary to all of the other evidence of the witnesses who saw the incident.

That of course does not mean that a defence of self-defence or aiding self-defence cannot be squarely raised if there is a version in evidence that may support it. The question is whether there is evidence that fairly raises the issue, notwithstanding that the plea of guilty to manslaughter is of itself inconsistent with such pleas.

The appellant's counsel in discussion prior to the addresses said that the main thrust of his defence was that the appellant lacked either of the requisite intents for the crime of murder. There was some discussion of implications of the plea of guilty to manslaughter in relation to self-defence. Counsel for the appellant expressly disclaimed reliance on self-defence.

However, if there was evidence upon which the evidential onus applying to the raising of defences was discharged, the learned trial Judge would have had to decide how to deal with the defence quite apart from the implications of a plea of guilty to manslaughter. There was, in my view, no basis upon which the evidence could be said to discharge the evidential onus in respect of self-defence or aiding in self-defence.

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The appellant did not give any evidence suggesting that in
attacking the deceased with the knife he was acting in his own
self-defence, nor was there any such version open on other
evidence. Aiding in self-defence would have only been open on
two bases. The first is if there had been a possible view of
the evidence upon which the jury might think that there had
been an unlawful assault, not provoked by her, upon the
appellant's female companion.

It is doubtful whether this was open on the evidence, but if there were some evidence of that, force which may cause death or grievous bodily harm could only be used if the nature of the assault was such as to cause reasonable apprehension of death or grievous bodily harm to her and that the person using the force believed on reasonable grounds that he could not otherwise preserve the woman from death or grievous bodily harm.

In terms of onus there would have to be some evidence which might induce the jury not to exclude those elements of self-defence beyond reasonable doubt, even assuming, in the unlikely event that the jury may have thought that something done by the deceased constituted an unlawful unprovoked assault upon the woman. There is, in my view, no basis upon which it could be said that the accused might have believed on reasonable grounds that he could not otherwise preserve the woman from death or grievous bodily harm.

By the time he confronted the deceased the entanglement with
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the woman had ceased. There was nothing to suggest that the
deceased intended to do anything else to her. The evidence
supporting the notion that the nature of any assault was such
as to cause reasonable apprehension of death or grievous
bodily harm to her is also extremely slight at best.

The second basis is concerned with the scenario of the jury considering that there had been an unlawful assault by the girl on the deceased or that she had provoked an assault by him on her.

The jury's finding that there was an intent to kill or do grievous bodily harm at the time the fatal blow was struck adds a complication which does not, however, need full analysis. Assuming it allows scope for aiding in self-defence to apply, the requirements then are that there was an assault upon the girl with such violence as to cause reasonable apprehension of death or grievous bodily harm and that it was such as to induce the appellant to believe, on reasonable grounds, that it was reasonably necessary to use force of the kind used to preserve her from death or grievous bodily harm.

In my opinion there was no basis in the evidence upon which a reasonable jury properly instructed may have failed to exclude beyond reasonable doubt the hypothesis that the accused may have believed, on reasonable grounds, that it was reasonably necessary to stab the deceased in the region of vital organs to preserve the girl from death or grievous bodily harm.

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Having regard to all of the circumstances of the case I am
satisfied that counsel was correct in disavowing self-defence
and that the learned trial Judge was not obliged to leave it
to the jury on the state of the evidence.

I am clearly not persuaded that the learned trial Judge was wrong. However, if I were to be mistaken in that, I would also conclude that there was no miscarriage of justice in the circumstances of the case.

Since I am satisfied that none of the grounds of appeal can be made out the appeal against conviction must be dismissed. There is also a ground of appeal that the sentence imposed is manifestly excessive. Since the only sentence which was open to be imposed was life imprisonment, there is nothing in this ground and the application for leave to appeal against sentence is refused.

The orders of the Court should be that the appeal against conviction is dismissed and that leave to appeal against sentence is refused.

THE PRESIDENT: I agree. I would like to reinforce the view of Mr Justice Mackenzie that the appellant, in the circumstances of this case, should have been warned at the commencement of the record of interview. The appellant was not warned until well into the interview. The appellant should have been told of the death of the person he was alleged to have assaulted prior to the interview so that he 140898 T10/TW12 M/T COA144/98

understood the nature of the case that was being investigated.

As Mr Justice Mackenzie has said there was no objection taken to the admission of the interview in evidence at the trial on any basis. Indeed, portions of the interview were favourable to the accused and played a significant role in the way the defence was conducted.

I agree with the orders proposed by Mr Justice Mackenzie.

HELMAN J: I agree with the orders proposed by Mr Justice
Mackenzie and with his reasons.

THE PRESIDENT: The order of the Court is that the appeal is dismissed and that the application for leave to appeal against sentence is refused.

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