R v Whannell

[1992] QCA 299

COURT OF APPEAL  [1992] QCA 299

MACROSSAN CJ
McPHERSON JA
AMBROSE J

CA No 193 of 1992

THE QUEEN

v.

JOHN CLEGG WHANNELL  Appellant

BRISBANE

..DATE 20/08/92

JUDGMENT

200892
THE CHIEF JUSTICE: This is an application for leave to appeal against conviction and sentence.  The appellant was charged with murder committed on 30 May 1991.  He pleaded not guilty and at the conclusion of his trial he was found guilty of manslaughter and sentenced to ten years’ imprisonment.  He had been two months in custody prior to being sentenced, that custody apparently being attributable to the offence in question.

Only one ground of appeal against conviction is specified and counsel appearing for the appellant clearly found some difficulty in supporting it.  That ground alleged that the learned trial Judge erred in allowing the prosecutor to adduce evidence of, and cross‑examine on, a statement made out of Court by a witness there named, one Payne.

When Payne gave evidence he was disposed to give a different account from that which he had previously given to investigating police.  He had both made a statement to the police initially and later had taken part in a video interview. The witness Payne was present, when the appellant and the deceased were engaged in a struggle, in the appellant's flat.  Payne's evidence in which he spoke of the details of the last few moments of the struggle varied from the account he had given previously in the two interviews to the police.  The trial Judge noted the inconsistencies.   These were proved in the course of the trial on a voir dire and the trial Judge also had the benefit of observing the demeanour of Payne on the voir dire.

Counsel appearing for the defence did not, in fact, ask any questions of the witness on the voir dire.  The trial Judge then ruled that the witness Payne should be declared hostile and he gave permission to defence counsel to cross‑examine.  In the circumstances, it seems to me, he was quite entitled to come to that conclusion and I see no reason for interfering, so that the ground taken on the appeal against conviction is not made out.  I would then, for myself, dismiss the appeal so far as it relates to conviction.

Dealing then with the appeal against sentence, as I have already said, a struggle between the deceased and the appellant occurred in the appellant's own quarters.  There were apparently a number of adjoining flats and the deceased occupied one, the appellant another.  There had been some dispute over items of furniture, or furnishings, and the deceased and the appellant had been engaged in some struggle at a slightly earlier time, that is, before the fatal events.  The witness Payne had been there and had separated the two men as they fought on that earlier occasion.  The appellant and Payne then retired into the appellant’s flat but after an interval the deceased came back and forced violent entry.  He rocked and forced the front door of the flat out of its tracks and then entered the appellant’s flat.

The learned trial and sentencing Judge has made the necessary findings of fact for our purposes.  He says that the deceased forced open the door and entered the unit of the appellant. The appellant's trade was that of butchery and he had tools nearby.  There was a knife and there was a steel included amongst the items in the flat.  The appellant picked them up when the deceased made his entry.  The Judge said that the appellant knew the knife was very sharp and addressing the appellant in the course of sentencing him, he added, “You made no attempt to get out of the unit but on your own account you held up the steel and knife to induce the deceased not to attack you.  When he came closer you struck him a blow to the head with the steel.  You gave evidence that this did not stop him and that he held you on the floor and punched you on the face and head.  You then used the knife, as a result of which he received two large wounds, one to the chest area and the other to the thigh.  It is clear from the evidence that significant force would have been used in inflicting those wounds.”  We were told that the wound to the side of the chest which did not penetrate into and damage any vital organs was about a foot long.  It apparently caused an opening in the side of the chest along such a length.  The fatal wound was where the knife was inserted into the inside of the thigh.  The deceased who was engaged in the struggle when the wounds were inflicted did not survive them very long.  One observation which the Judge made in sentencing was that the use of a large and very sharp butcher's knife in these circumstances was an intolerable act of violence.  The jury had found that the defence of self‑defence which had been advanced in the trial was not made out.  It was then a matter for the Judge to sentence the appellant for what he nevertheless regarded, and in my opinion was entitled to continue to regard, as a serious case of manslaughter.

There are some matters which need emphasis.  The appellant's record of interview disclosed that he meant to use the knife to defend himself, that is to stab the deceased but this occurred in the situation, where as the Judge has found he was being held to the floor and punched about the face and head.  Again, it has to be remembered that it was the appellant's own flat which the deceased had forcibly entered, removing the front door by violent means.  When the deceased first entered the appellant held up the steel and knife which he had to induce, as the Judge has found, the appellant not to attack him.  In short, the situation is to be distinguished from one where the appellant over readily took advantage of an opportunity to stage a murderous attack upon the deceased.  His first attempt, the Judge has found, was to induce the appellant not to attack.  When the deceased continued to advance upon the appellant notwithstanding the appellant's attempt to prevent it, the appellant first struck with a steel.  That was not sufficient to deter the deceased who then, as I've already said, forced the appellant to the floor, held him there and punched him.

Well, there was a forcible invasion of the appellant's premises.  The invader was not deterred by an attempt made to that end.  The invader attacked notwithstanding the fact that the appellant was endeavouring to ward off the attack by producing the knife.  It is abundantly clear to me that such a weapon as this should not have been used in the circumstances in which it was eventually used, that is in the course of a struggle to inflict fatal wounds but it has to be said, I think, that in a large measure the deceased brought this result upon himself by persisting with his attack.  I think then, that although the case can justly be called a serious one, the sentence imposed in the particular circumstances which prevailed should be regarded as excessive.  The appellant had previous convictions including three for assault, as the Judge noted but none of them had resulted in custodial sentences being imposed.  Having in mind the matters I have outlined and allowing also for the fact that the appellant had spent two months in custody I would favour allowing the appeal and setting aside the sentence imposed and substituting in lieu a sentence to a term of imprisonment of eight years, and I would add a recommendation that the appellant be paroled after serving three years of that sentence.  The appeal against conviction should be dismissed.

McPHERSON JA: I agree.  The case is one that has troubled me, I suspect because it is not all together easy to see why self‑defence did not succeed.  It can, I think, be explained only on the basis that the force used by the appellant to defend himself was regarded by the jury as excessive, even if that might in the circumstances be thought rather to underrate the violence that continued to be done to the applicant at the time of the blow, as well as perhaps as to discount the injuries he had already received in an earlier encounter with the deceased.

However that may be, it is necessary to accept the verdict of the jury on this point with all its implications.  Despite it, I consider that the head sentence is excessive and such as justifies us in intervening.  In consequence, I agree that leave to appeal should be granted with the result or outcome that has been proposed by the Chief Justice.

AMBROSE J: Yes, I agree with the proposed order.  I agree that the appeal ought to be allowed.  I agree with the order proposed by the learned Chief Justice and there's nothing to add.

THE CHIEF JUSTICE: All right, the order then will be as I have indicated.

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