R v Zingle

Case [2017] QCA 91

SUPREME COURT OF QUEENSLAND

CITATION:

R v Zingle [2017] QCA 91

PARTIES:

R
v
ZINGLE, Harry Travis
(appellant)

FILE NO/S:

CA No 151 of 2015
SC No 4 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:


Supreme Court at Cairns – Date of Conviction: 16 June 2015

DELIVERED ON:

16 May 2017

DELIVERED AT:

Brisbane

HEARING DATE:

28 February 2017

JUDGES:

Fraser and Philippides JJA and Boddice J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The appeal be dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where on 16 June 2015 the appellant was found not guilty of one count of rape but guilty of one count of murder – where the learned trial judge admitted evidence relating to the appellant and deceased’s prior domestic relationship – where the appellant contends that admission of such evidence was in error – whether the admission of evidence relating to the prior domestic relationship caused a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was heavily intoxicated at the time of the offence – where the appellant contends that it was not open for the jury on the whole of the evidence to be satisfied beyond reasonable doubt that the requisite intention was held – where the appellant further contends that his lack of understanding of the seriousness of the injuries inflicted on the deceased at the time of and immediately after the offence was inconsistent with an intent to kill or do grievous bodily harm – whether the jury could be satisfied beyond reasonable doubt that the appellant held the requisite intent

Evidence Act 1977 (Qld), s 132B

R v Baden-Clay (2016) 90 ALJR 1013; [2016] HCA 35, cited
R v SCH[2015] QCA 38, cited
Roach v The Queen (2011) 242 CLR 610; [2011] HCA 12, cited

COUNSEL:

S R Lewis with K E McMahon for the appellant (pro bono)
G P Cash QC, with A J Robinson, for the respondent

SOLICITORS:

No appearance for the appellant
Director of Public Prosecutions (Queensland) for the respondent

  1. FRASER JA:  I agree with the reasons for judgment of Boddice J and the order proposed by his Honour.

  2. PHILIPPIDES JA:  I have had the considerable benefit of reading the reasons of Boddice J.  I agree with those reasons and the order proposed.

  3. BODDICE J:  On 16 June 2015, a jury found the appellant guilty of murdering Cheryl Esther Greenwool on 21 December 2013.  The jury found the appellant not guilty of the rape of Cheryl Esther Greenwool.  The appellant was convicted and sentenced to life imprisonment.

  4. The appellant appeals his conviction.  The appellant relies on three grounds of appeal.  First, that the verdict of the jury was unreasonable, unsafe and unsatisfactory having regard…

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Details
AGLC
R v Zingle [2017] QCA 91
Case
[2017] QCA 91
Decision Date

CaseChat Overview and Summary

The appeal by the appellant, who was convicted of murder, was heard by the court. The appellant was found not guilty of rape but guilty of the murder of the deceased, who was his de facto partner. The appellant raised three grounds of appeal, including the contention that the jury's verdict was unreasonable, the admission of evidence relating to prior domestic violence was in error, and that the appellant's counsel failed to object to the evidence of prior domestic violence. The court was required to determine whether the appellant's appeal was meritorious, focusing on whether the trial judge's admission of evidence concerning the prior domestic relationship caused a miscarriage of justice and whether the jury could be satisfied beyond reasonable doubt that the appellant held the requisite intent to kill or cause grievous bodily harm.

The court found that the jury's verdict was not unreasonable or unsafe, considering the evidence presented. The court concluded that the appellant's level of intoxication did not preclude the jury from being satisfied beyond reasonable doubt of the appellant's intent. The court held that the admission of evidence relating to the prior domestic relationship was not an error that led to a miscarriage of justice. The court further held that the failure of the appellant's counsel to object to this evidence did not constitute a miscarriage of justice, as the evidence was relevant to the appellant's state of mind and intent.

The appeal was dismissed by the court. The reasoning was that the jury's verdict was reasonable, the admission of evidence concerning the prior domestic relationship did not cause a miscarriage of justice, and the appellant's counsel's failure to object did not affect the outcome of the trial. The court upheld the conviction and the sentence imposed on the appellant.

Orders

Orders of the court

The appeal be dismissed.

Background

Background to the litigation

The appellant appeals his conviction. The appellant relies on three grounds of appeal. First, that the verdict of the jury was unreasonable, unsafe and unsatisfactory having regard to the evidence. Second, that there was a miscarriage of justice in the appellant’s trial because the learned trial judge erred in admitting evidence of prior domestic violence. Third, there was a miscarriage of justice in the appellant’s trial because of the failure of the appellant’s counsel to object to evidence of prior domestic violence.Background The appellant was born on 30 November 1971. He is indigenous. The deceased was born on 23 March 1971. She was the de facto partner of the appellant. They lived together in a duplex at 331A Karrenganang Street, Kowanyama. The street is known locally as Jennifer Street. It contained living areas and two bedrooms. The back bedroom was used as the main bedroom. The duplex had its own separate front and back yards. Paul Wallace lived next door. Across the road lived Gerard Malachi and Sheena Parry. Adjacent to Malachi’s backyard lived Henry Gibbo and Michelle Jimmy. The deceased was found dead on the floor of her bedroom in the early hours of 21 December 2013. She had sustained significant injuries to her head. The cause of death was bleeding on the brain. The appellant admitted punching the deceased some hours prior to the deceased’s death. He also said he struck her on the leg with a piece of timber. The appellant said that when he left the deceased the previous evening she was bleeding but conscious. At issue in the appellant’s trial was whether the appellant caused the deceased’s death and, further, if he did so, whether he intended to kill or cause the deceased grievous bodily harm. An issue in relation to the existence of the relevant intent was the quantity of alcohol consumed by the appellant over an extended period prior to the deceased’s death.EvidenceEvents of 20 December 2013 Nullem Aiden commenced drinking with the appellant and others at his house from early in the morning of 20 December 2013. The appellant arrived at around six o’clock in the morning. The appellant was drinking Fourex Gold beers throughout the morning. The deceased came to the house for a time at about midday. She did not stay long. The appellant was drinking and dancing whilst the deceased was at the house. He was “almost getting drunk”.[1] Everybody left in the afternoon when there was no more beer. Aiden was too drunk himself to remember what time everyone left his house.[1]AB 313/45. Chantel Sandra Major, a friend of the deceased, saw the appellant at Fayden’s house at about 7 am on the morning of 20 December 2013. She saw him again at 1.00 pm. She could not remember if she saw the appellant drinking at either time. Major also saw the deceased at Fayden’s house that day. It was about 2 pm. The deceased was talking to the appellant out the back of Fayden’s house. The deceased asked the appellant why he did not come home. Major did not hear the appellant reply.

Evidence

Evidence Before The Court

At issue in the appellant’s trial was whether the appellant caused the deceased’s death and, further, if he did so, whether he intended to kill or cause the deceased grievous bodily harm. An issue in relation to the existence of the relevant intent was the quantity of alcohol consumed by the appellant over an extended period prior to the deceased’s death.EvidenceEvents of 20 December 2013 Nullem Aiden commenced drinking with the appellant and others at his house from early in the morning of 20 December 2013. The appellant arrived at around six o’clock in the morning. The appellant was drinking Fourex Gold beers throughout the morning. The deceased came to the house for a time at about midday. She did not stay long. The appellant was drinking and dancing whilst the deceased was at the house. He was “almost getting drunk”.[1] Everybody left in the afternoon when there was no more beer. Aiden was too drunk himself to remember what time everyone left his house.[1]AB 313/45. Chantel Sandra Major, a friend of the deceased, saw the appellant at Fayden’s house at about 7 am on the morning of 20 December 2013. She saw him again at 1.00 pm. She could not remember if she saw the appellant drinking at either time. Major also saw the deceased at Fayden’s house that day. It was about 2 pm. The deceased was talking to the appellant out the back of Fayden’s house. The deceased asked the appellant why he did not come home. Major did not hear the appellant reply. Major started drinking herself at 7.00 am that day. She drank cask wine throughout that day. By 1 or 2 pm she was drunk. She continued drinking into the evening. At some time after 10.00 or 11.00 pm on the evening of 20 December 2013, Major went to the deceased’s house. She knocked on the door but nobody answered. Major saw the appellant smoking with some others out the back of the house. The appellant told her the deceased was asleep. Major then went with the appellant and others to Malachi’s house next door. She drank beer at Malachi’s house. When Major left Malachi’s house at 1.00 or 2.00 am on 21 December 2013 the appellant was still at Malachi’s house. Ishmail Birchley attended the residence of the appellant and deceased at around 12.30 pm on 20 December 2013. The deceased was “pretty drunk” when he arrived at the house. The deceased, who had trouble walking, was wearing a long brown flowery dress. Birchley remained at the house for approximately 20 minutes. He had two to three cups of wine. He left after 20 minutes. His wife came to collect him. He did not see the appellant or deceased again that night. Delilah Paul, a friend of the deceased, went to the residence of the appellant and the deceased at about 4.00 pm on 20 December 2013. The appellant and deceased were sitting on the couch. There were other people there. She described that there was bit of a party going on. The appellant and others were drinking wine from a cask. Paul said she was drunk as was the deceased. At one point, Paul went to her sister’s house across the road looking for cigarettes. She was away for 10 to 15 minutes. When she returned everybody was leaving and going to Malachi’s house. Paul saw the appellant push one person out the front door. The door was then locked and the house was all dark.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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