R v Stephan John Doorey No. SCCRM 92/704 Judgment No. 4033 Number of Pages 7 Criminal Law and Procedure

[1993] SASC 4033

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA KING CJ

CWDS
Criminal law and procedure - particular offences offences against the person - Murder - trial by judge alone - accident negatived - finding of intentional killing by shooting - provocation - verdict of not guilty of murder but guilty of manslaughter.

HRNG ADELAIDE, 21-25 June, 1 July 1993 #DATE 1:7:1993
Counsel for Crown:         Mr D R L Whittle
Solicitors for Crown:        Director of Public
   Prosecutions (SA)
Counsel for accused:         Mr D F Stokes
Solicitors for accused:     David Stokes and Associates

ORDER
Verdict of not guilty of murder but guilty of manslaughter.

JUDGE1 KING CJ The accused is charged for that on or about 22 May 1992 at Brooklyn Park he murdered Gary Sydney Brougham. He has pleaded not guilty and elected to be tried by judge alone. This was a relatively short trial occupying only two and a half sitting days. It became so by reason of the practical and businesslike approach of counsel, Mr Whittle for the prosecution and Mr Stokes for the defence, which enabled me to make liberal use of s.59J of the EvidenceAct. 2. Pursuant to that section, and with the consent of the defence, I was able to admit into evidence the statements of 54 witnesses, the contents of which were not in dispute, and exhibits identified in those statements. Certain of those witnesses were called and were briefly examined and cross-examined on critical points. I commend the attitude of counsel which reduced greatly the duration of what would otherwise have been a lengthy and expensive trial. The course taken involved no detriment to the case for the prosecution or the case for the defence. 3. The deceased died as a result of a gunshot wound to the right temple sustained at premises at 25 Western Avenue, Brooklyn Park in the early afternoon of Friday, 22 May 1992. The deceased and the accused were the only persons present when the fatal wound was sustained. The deceased and the accused were the joint occupiers of the abovementioned premises. They were the only persons residing at the premises, although the deceased's girlfriend, Stacey Flavel, spent most nights and weekends there. 4. The relationship between the deceased and the accused was unusual. They had been friends for some years and had resided together at these premises for some months, the accused having moved in late in 1991. 5. They were contrasting personalities. The deceased's disposition was aggressive, overbearing and violent. The accused was quiet and compliant. He has no prior convictions apart from the drug convictions to which I shall refer later. The deceased clearly exercised a dominance over the accused. He would order the accused about and the accused would comply with his wishes. The deceased displayed his dominance by goading and humiliating the accused. The deceased was stronger and bigger than the accused and he bullied him physically. Sometimes the physical contact was in the nature of "play fighting" but at times the deceased struck the accused painful blows and caused him injury. 6. The accused's evidence was that on two occasions the deceased threatened the accused with a knife and on another occasion threatened to kill him, but that portion of his evidence did not carry conviction. Both men were engaged in growing and selling Indian hemp. They also sold drugs obtained from a supplier. The deceased was the dominant partner in this, as in all other things. He arranged the sales leaving the accused to deliver the drugs and doubtless incur any risk involved. 7. In January 1992 the police raided the premises and arrested the accused. On 19 May he pleaded guilty to charges of producing cannabis and possessing cannabis for supply. He did not implicate the deceased. Through his counsel he falsely asserted that there was no commercial element in his offending and that the only supply was to his friends. 8. Both the deceased and the accused were in employment. The accused did not work on 22 May. The deceased worked his normal Friday shift finishing work at 1.30 p.m. He drove home in his motor car. The accused was at home when the deceased arrived. There was a verbal and physical altercation between them in the carport area of the house. This is clear from the evidence of Mr Ferguson, a neighbour. The total incident involving loud yelling, screaming and abusive language occupied five or ten minutes. 9. During the incident there was a continuous banging noise against the roller door of the carport lasting less than a minute. The loud voices and noise ceased and Mr Ferguson went inside his house. He did not hear a shot although only some 25 metres from the carport while he was outside. 10. In the course of or soon after this altercation the deceased sustained his head wound. The bullet which caused the wound was discharged from a Lithgow model one single shot bolt action .22 calibre rifle which is Exhibit P4. The rifle was cut off at the pistol grip behind the trigger and at the barrel and forestock so that its overall length was about 24 cm and its barrel length was about 7.5 cm. The rifle, on testing, would not discharge unless pressure was applied to the trigger, but the pressure required was somewhat less than the accepted safety standard, being 950 grams as against 1120 grams. Upon receiving the wound the deceased collapsed and died more or less instantly. 11. The accused dragged the deceased's body to a shed at the rear of the property and buried it in a shallow grave. To do this he removed a considerable number of paving stones, dug through the dolomite surface beneath the pavers and removed a quantity of dolomite and soil. He thereby produced a grave 1.7 m long and 63 cm deep. He tied the deceased's hands together and buried the body in the grave. He replaced soil and dolomite and replaced the pavers neatly. He must have removed the overburden of displaced dolomite and soil to another part of the premises. The disposal of the body in this way was a considerable task and it is not known over what period of time the work was done. 12. At a time which must have been only a few minutes after the death of the deceased, Stacey Flavel arrived at the house. She found the front door latched from the inside, which was unusual, and was therefore unable to gain entry with her key. She attempted to lift the roller door of the carport but was unable to do so. It turned out that the roller door had been secured with a steel rod. The accused opened it from the inside and Miss Flavel observed that he was panting and sweating. He claimed that he had been working in the garden. 13. Miss Flavel went into the house and enquired about the deceased. The accused said that he had left in a brown Torana motor car with two other persons not known to him. He said that the deceased had said that he would be back for tea. Miss Flavel left. 14. Between 4 p.m. and 4.30 p.m. friends of the deceased and the accused Geoffrey and Kathryn Roberts came to the house and knocked on the door. The accused let them in and again he was showing signs of considerable exertion. He had a fresh graze or cut on the forehead. I infer that this visit interrupted the process of burying the body. The accused told the Roberts the same story as to the deceased's departure. Miss Flavel came back that evening and the accused reassured her by suggesting that the deceased was probably drinking. 15. On the following morning in Miss Flavel's presence the accused engaged in an elaborate charade of pretended attempts to locate the deceased. He went to great lengths to create the impression that the deceased had left the house. He telephoned friends and contacts of the deceased enquiring whether they had seen him and repeating the false story of his departure. He rang the police and hospitals. He left the house and, while out, rang Miss Flavel. He pretended to be a man named Peter and told her that the deceased would ring her on the following Tuesday. 16. The accused went to a football match and told the same story to acquaintances. Later that day he rang others telling the same story and even spoke to a man who owned a gold Torana to enquire whether the deceased had gone in his car. That evening he went to play in a band of which he was a member and repeated the Torana story. On the Sunday he repeated the story to others. 17. The accused absented himself from work on the Monday, visiting a doctor for a certificate for bronchitis. On the Tuesday morning the accused rang Miss Flavel from work stating that the deceased had rung him at work saying that he, the deceased, was lying low and going interstate and that when he was settled he would send for his belongings. The accused claimed that the deceased said that someone was watching the house and that he was to tell Miss Flavel that he, the deceased, was sorry. 18. Miss Flavel rang the accused back at his place of employment and the accused came home. 19. At Miss Flavel's insistence that he should ring work to ascertain whether the deceased's call was local or STD, the accused rang his place of employment but asked only about the call which he had received. That enquiry was naturally interpreted as a reference to the only call which he had, in fact, received, being that from Miss Flavel. The accused told interested persons about this fictitious phone call from the deceased, thereby seeking to impress them that the deceased was alive and lying low. 20. The accused's web of lies deceived all the deceased's friends and acquaintances. He was interviewed by the police on 10 July in consequence of a missing person's report by the deceased's father. 21. At the interview on 10 July conducted by CIB detectives the accused maintained his story as to the deceased's disappearance. 22. On 14 July 1992 police examined the premises and detected the presence of the body in the grave. The accused arrived home from work while the police were there. When told of the discovery of the body he feigned astonishment. 23. The accused gave evidence. He said that before going to work on the morning of the fatal day the deceased had accused him of stealing a quantity of marijuana from his room and had demanded money from him. He had threatened the accused that if he did not produce the money when he arrived home, he would harm him or perhaps kill him. When the deceased arrived home he was dressed in a T-shirt and tracksuit pants. He alighted from his car in the carport. He began to upbraid the accused for not cleaning up around the house as he had directed him. He then demanded the money for the marijuana. There was a loud argument which resulted in a fight in the carport. When they had been fighting for a while the accused received a punch in the stomach which doubled him over and when straightening from the crouching position he saw that the deceased had a gun which was aimed at his head. The deceased told him to get on his knees and that he was going to kill him. 24. The deceased struck the accused on the shoulder with the gun which scraped his head. The accused said:
    "He pointed the gun at me and something inside me snapped. I
    said 'Well, I have been copping flak from him for quite some time
    and if I didn't stand up for myself now I would be dead.' I leapt
    at him as well. He had hold of the rifle. I had hold of his arm
    and hand at the same time." 25. The accused described a struggle with the deceased in the course of which the gun, while still in the grasp of the deceased, discharged. The deceased collapsed. 26. The accused claimed a degree of amnesia for events both before and after the discharge of the firearm. It is clear from his evidence that he made no attempt to obtain help for the man who had been shot. He dragged the body to the shed where it was buried. The accused denied that he shot the deceased and said that the discharge of the firearm was accidental. 27. The accused's demeanour in the witness box was variable. Parts of his story, no doubt the parts for which he was recounting the truth of events, were told naturally and convincingly. When recounting the vital parts of his story however, in particular as to the cutting down and disappearance of the rifle, the production of the gun by the deceased, the struggle leading to the accidental discharge of the firearm and the partial amnesia, his demeanour caused me to distrust his evidence. Moreover, his record of lies both to the court, through his counsel, in relation to the drug charges and to so many people with respect to the deceased's disappearance, demonstrates that he is prepared to go to any lengths of deception to serve his purposes. 28. I attach no weight to his oath or word. I therefore attach no weight to his evidence except where it receives at least some degree of confirmation from other evidence or the intrinsic probabilities. 29. I am satisfied beyond doubt that the accused and not the deceased introduced the gun into the incident. The following considerations lead me to that conclusion.
    1. The firearm belonged to the accused. It was last seen in his
    possession. I accept the evidence of Samantha Flavel, the
    sister of Stacey Flavel, that she saw the gun, Exhibit P4, in its
    sawn-off condition one evening at the house. The accused
    produced it to the deceased and said "Have a look at this". The
    deceased handled it and returned it to the accused, who took the
    gun out of the room.
    I infer from that evidence and the technical evidence that the
    accused had cut down the gun, probably at the instance of the
    deceased, in the shed, where the cut off parts were,
    subsequently, found by police, using the vice located on a work
    bench in the shed.
    I reject the accused's evidence that he had never seen the rifle
    in its sawn-off condition. His evidence that the rifle, which
    was, admittedly, his property, disappeared and that he assumed
    that the deceased had sold it, that he never enquired about the
    sale or the proceeds, is simply incredible.
    2. The gun could not have been on the person of the deceased
    during the fight. The deceased was wearing only a T-shirt and
    tracksuit pants. A gun of its size could not have been on the
    person of the deceased, so clad, during a protracted argument and
    fight, without the accused's knowledge.
    3. It would not have been possible for the gun to have been
    obtained by the deceased from his car, or any other place of
    concealment, without the accused being aware of it. 30. They were engaged in a physical confrontation. Even if crouching as a result of a punch, the accused would have to be aware of the sort of movements necessary to remove the gun from the car or other place of concealment. Moreover, I do not believe that the deceased could have kept the gun in his car, or anywhere on the premises, without the accused being aware of it. 31. From a conviction beyond doubt that the accused produced the gun, it is a short step to conviction beyond doubt that he deliberately shot the deceased in the temple. The most likely purpose for the production of a loaded gun as the sequel to an altercation is to use it on the other party. If intended to frighten, it need not be loaded. 32. The alternative theory of accidental discharge is inherently unlikely. The deceased was far stronger than the accused, and had a physical dominance over him. In any struggle, he is unlikely to have allowed the gun to get into a position of being pointed at him. The angle at which the bullet entered the skull establishes that the gun was pointed more or less directly at the temple, and that tends to support deliberate aim. 33. Mr Ferguson's evidence tends to indicate that the firearm did not discharge during the altercation. He heard no shot. It is likely that the shot occurred after Ferguson had re-entered his house - that is to say, after the noise of the altercation had died down. 34. Finally, the accused's actions after the shooting are those of a man who is conscious of criminal wrongdoing, rather than those of a man who has been involved in a tragic and fatal accident resulting from the actions of the deceased. The accused made no attempt to seek help for the wounded man. He buried the body in a concealed grave. He embarked upon persistently weaving an elaborate web of deception designed to convince people that the deceased was still alive. 35. I have reached the conclusion to the exclusion of reasonable doubt that the accused caused the death of the deceased by shooting him, and did so with the intention of killing him. 36. The accused's evidence was that he struggled with the deceased in order to defend himself. I have rejected the occasion for self-defence put forward by the accused, namely, that he was threatened with a gun. I accept that the accused was engaged in a fight with the deceased, who was a stronger man. 37. That, however, could not have led him to believe that he was in danger of death, or serious bodily harm. There were no reasonable grounds for a belief that it was necessary, in self-defence, to shoot dead the deceased, who was an unarmed man. I am satisfied that the accused had no such belief. Self-defence has been negatived beyond reasonable doubt. 38. It remains to consider whether the crime committed by the intentional killing of the deceased is reduced from murder to manslaughter by reason of provocation by the deceased. 39. The test as to whether the conduct of the deceased amounts, in law, to provocation is whether it might cause an ordinary person to lose his self-control, to the extent of causing him to kill the deceased by shooting him. 40. The conduct of the deceased on the occasion in question must be viewed against the background of the relationship. The accused had been subjected to a long course of abuse, including physical violence, goading, mental and physical domination, and humiliation. He was subjected, on the instant occasion, not only to verbal abuse, but to a physical beating. I have no doubt that the altercation ended, once again, in the accused's humiliation. 41. I reject the evidence that the deceased produced the gun, but I think that it is entirely possible that he demanded that the accused get on his knees. I think that the deceased's conduct, against the background of the previous course of conduct, might have caused an ordinary person to loose his self-control to the extent of killing his tormentor. I consider, therefore, that the deceased's conduct amounted, in law, to provocation. 42. It remains to consider whether the provocation caused the accused to loose his self-control. He gave evidence that he snapped. It is true that he attributed that to the production of the gun. I think that, although there was no gun in the hands of the deceased, it is a reasonable possibility that the accused did snap - that is to say, loose his self-control - as a result of the treatment he received. 43. There is a difficulty about the location of the gun before the accused fetched it. If he had to go to his bedroom, there was an interval of time in which he might have regained his self-control. There is, however, no evidence as to the whereabouts of the gun at the time of the incident. It is a reasonable possibility that the accused was able to lay his hands on it and use it before regaining his self-control. He is entitled, by law, to the benefit of the doubt on this point, as on all other points. 44. I do not think that the prosecution has excluded provocation beyond reasonable doubt. 45. They are my reasons for the finding that the accused is not guilty of murder, but guilty of manslaughter.