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R v Wells

 

[2020] QCA 155

SUPREME COURT OF QUEENSLAND

CITATION:

R v Wells [2020] QCA 155

PARTIES:

R

v

WELLS, Samuel Austen

(appellant)

FILE NO/S:

CA No 6 of 2019

SC No 139 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Cairns – Date of Conviction: 7 December 2018 (Henry J)

DELIVERED ON:

24 July 2020

DELIVERED AT:

Brisbane

HEARING DATE:

20 May 2020

JUDGES:

Sofronoff P and Morrison and Mullins JJA

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL DISMISSED – where the appellant was found guilty after a trial of one count of murder – where the appellant stabbed the deceased numerous times in an altercation – where the appellant accepted that he may have been responsible for the fatal wounds which had penetrated the heart – where the appellant submits that there was insufficient evidence upon which the jury could have been satisfied that the appellant intended to cause death or to do grievous bodily harm – where the appellant submits that the appellant had been acting unthinkingly without a specific intent and that this was a hypothesis consistent with innocence that could not be discounted – whether the jury’s verdict was unreasonable or insupportable having regard to the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION OR NON-DIRECTION – where the appellant was found guilty after a trial of one count of murder – where the appellant stabbed the deceased numerous times in an altercation – where the appellant accepted that he may have been responsible for the fatal wounds which had penetrated the heart – where the appellant hid the murder weapon, a knife, and his bloodied clothes in the river near the property – where the appellant initially lied to police and denied his involvement in the murder – where the learned trial judge directed the jury about the use of the post-offence conduct – where the appellant makes no complaint about the detailed way in which the learned trial judge explained how the evidence could be legitimately used – where the appellant submits that the learned trial judge failed to direct the jury that they ought not simply infer from the fact that he was implicated in the killing that he had the requisite intention or that the killing was unlawful – where the appellant submits that the learned trial judge made no clear demarcation of when that evidence could not be used – whether the learned trial judge misdirected the jury about the post-offence conduct and lies

Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25, cited

Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56, cited

COUNSEL:

P J Wilson, with C D Hughes, for the appellant (pro bono)
D Balic for the respondent

SOLICITORS:

Fisher Dore Lawyers for the appellant (pro bono)
Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    SOFRONOFF P:  Mr Robert Wells, who is the father of the appellant, and his partner, Ms Elaine Gilbo, who is the appellant’s mother, lived in a house at Cooktown.  The deceased, Mr David McClelland, lived next door.  He was a man in his early 40s and he lived alone.  A couple of times a week Mr Wells and Ms Gilbo would get together with Mr McClelland to drink beer and smoke cannabis together.  After Mr Wells and Ms Gilbo had been living in Cooktown for about two and a half years, their son, the appellant, Samuel Wells, moved in with them.  He was then 21 years old.
  2. [2]
    On 3 November 2017 Mr McClelland, the appellant and Mr Wells were spending the day drinking together, sitting at the dining table in the Wells’ home.  Mr Wells was trying to listen to a country music show on his television.  The appellant and Mr McClelland were listening to rap music and this was interfering with Mr Wells’ enjoyment.  Mr Wells said in evidence:

“… I was listening to that and then they started with the rap music and they – I said, “Well, fair enough.  I’ll let youse [sic] have a – you know – play a few songs of what youse [sic] want,” but they kept getting louder and louder.  Then I told them, “No, turn it down, turn it down,” and they – they wouldn’t listen so I told them to get out on the verandah with it.”

  1. [3]
    The two of them went outside and Mr Wells had to shout at them a few times to ask them to turn down the volume.  Then the music stopped.  Mr Wells was pleased that he did not have to keep telling them to shut up.  It was still daylight.
  2. [4]
    After darkness had fallen, the appellant came back home.  Mr Wells saw that his son’s hands were bloody.  He said that “[t]hey just looked like they’d been dipped in paint”.  His evidence went on:

“… I just said to him, “What’s going on?  What’s – what’s all that shit over your hands?”  And he didn’t answer – like his mother [Ms Gilbo] said to him what’s – at first she said, “Well, what’s – what’s all – what’s all that stuff all over your hands?”  And then, like, that’s what got my attention to his hands and then I said to him, “Well, it looks like blood, mate.  What have youse [sic] been up to?  What’s going on?”

  1. [5]
    Ms Gilbo’s evidence was that the appellant was “very intoxicated” and that he was slurring his words.
  2. [6]
    The appellant said, “I’ve just done old mate next door.”  He said, “You better go check on him.”  Mr Wells went next door and found Mr McClelland lying on the floor of his kitchen.  Police and paramedics were called and, when they arrived, they found that Mr McClelland was dead.
  3. [7]
    Detective Sergeant Watts from the Tully Criminal Investigation Branch arrived some time later.  He viewed the body and then went to the Wells’ home where he spoke to Mr Wells and Ms Gilbo.  He noticed the appellant.  He was barefoot and his feet were muddy and there were scratches and blood on his hands but he was wearing clean clothes.  He was evidently drunk.
  4. [8]
    At first, the appellant denied any involvement in the killing of Mr McClelland.  He told Sergeant Watts, “I was next door, man.  Fuck.  I actually seen a little bit.”
  5. [9]
    Then a little later he said:

“Had a couple of drinks with us and then he jumped over here again and I come [sic] over, having a cup of tea or something with him.

...

Then after that, man, I jumped over the fucking thing [the dividing fence].  All I noticed all the lights turned off and I jumped back over and that’s when I took off down the road, man.  Down the mud.  Checked the crab pots and shit.”

  1. [10]
    Finally, the appellant said, “See me tomorrow, man, and I’ll tell ya everything.  I’m fucking half like pissed.”
  2. [11]
    That conversation took place at about 10 pm.  Sergeant Watts spoke to the appellant again just after midnight.  He informed the appellant that Mr McClelland was dead.  Once more the appellant denied any involvement.  There were the following exchange:

“SGT WATTS:  Okay?  Can you start from the start again, so when first saw David today and talk me through to when you started drinking?

WELLS:  Well, when I first seen him he, he jumped over the fence and he come [sic] there, like home.

SGT WATTS:  Mmhmm.

WELLS:  And he was talking, having a good old yarn and shit like that.

SGT WATTS:  Yeah.

WELLS:  Then jumped over the fence and I jumped over and then I had a coffee with him and I walked out and then I went and checked crab pots and shit like that and I come back again and then when I seen him I switched on the light and then that’s when I seen him, I jumped, that’s when I noticed like Mum and Dad, ring the police.

SGT WATTS:  Right.

WELLS:  I was the one who told them to ring youse [sic].  I went down the back and I got another crab pot and I come back up and everyone [INDISTINCT].  Shit.  I [INDISTINCT].  Did Mum and Dad tell you what happened before?  The next door neighbours.

SGT WATTS:  They’ve spoken to us.  What, what happened before?

WELLS:  Well, they, they told me just before that old mate tried to threaten him with a golf ball or some shit, golf ball.  What do they call it?  I don’t know, fucking, what do youse [sic] call it?

SGT WATTS:  [INDISTINCT].

WELLS:  The park or some shit.  The park?  [INDISTINCT].  You know?  Golf stick or something.  I don’t play golf but, yeah.  Did they tell you that?

SGT WATTS:  No, you tell me more about that.

WELLS:  They told me that the old mate threatened him.

SGT WATTS:  Whose old mate?

WELLS:  Oh, fuck, what’s his name?  Well, the next door neighbour.”

  1. [12]
    Later in the interview the appellant repeated this story.  He also explained that he had gotten rid of the clothes that he had been wearing:

“WELLS:  Yeah.  But Mum knew I went over there ‘cause I told ‘em.  Dad, yeah, ‘cause when I ran back I had blood on my hands.  I fucking, I tried to lift him up, you  know, do CPR or some shit but I couldn’t.

SGT WATTS:  Okay.  Did you do anything else inside?

WELLS:  When?

SGT WATTS:  Inside David’s house?  Did you do anything else --

WELLS:  Drink coffee, that’s about it.

SGT WATTS:  No, ah, when you found him, did you do anything else?

WELLS.  Nuh.

SGT WATTS:  You said you gave him CPR?

WELLS:  No, I tried to.

SGT WATTS:  You tried to?  Did you do anything else?

WELLS:  Nuh.

SGT WATTS:  Okay.  What were you wearing at the time you went next door?

WELLS:  Um, shorts.

SGT WATTS:  Mmhmm.

WELLS:  Shorts and a shirt.

SGT WATTS:  Okay.  You’re wearing clothes at the moment, are they the clothes you were wearing when you went over?

WELL:  No, no.  Shorts and shirt.  I was in that state of shock, man, I tried to get rid of it down the fucking um river.

SGT WATTS:  The clothes you wore before, sorry.

WELLS:  Shorts and shirt.

SGT WATTS:  Why throw your shorts and shirt out?

WELLS:  Because I thought I would get the blame for it.

SGT WATTS:  Why would you think you’d get the blame for it?

WELLS:  Because, that’s how it goes, man, these days.  And I told Mum to ring the police and that.”

  1. [13]
    The questioning continued and the appellant then gave a different version:

“SCON YOUNG:  It starts daylight, he comes over for some beers, has two beers and then it starts getting a bit dark, he goes home.  Is that correct?

WELLS:  Yeah, I, I don’t, I’ll tell you the whole, the whole story, like, you know.  Tried to, tried to cut me with a knife though.  Like a --

SCON YOUNG:  Okay.

SGT WATTS:  Tell me about that?

WELLS:  That’s what, that’s what that’s there for.

SGT WATTS:  Well, start from the start and tell me, tell me about that.

WELLS:  Well, I went over there.

SGT WATTS:  Mmhmm.

WELLS:  Fucking sorry for lying to ya.

SGT WATTS:  No, it’s all right.

WELLS:  Fuck.

SGT WATTS:  Tell us the truth.

WELLS:  Well, I went over there and he tried to fucking stab me and I just went off, man.  Fucked up.  I’m not gonna get stabbed for no one and that’s how all the blood got on my pants.

SGT WATTS:  Mmhmm.

WELLS:  ‘Cause he fell over and slipped too, ‘cause we, ‘cause we both stabbed each other with the knife.  Well, he tried to cut me on the finger first.

SGT WATTS:  Yeah?  Tell me more what happened?

WELLS:  Well, I didn’t stab him, I just --

SGT WATTS:  Okay.  You said that um you both stabbed each other with a knife?

WELLS:  Yeah.

SGT WATTS:  Tell me about that?

WELLS:  Oh, he cut me.

SGT WATTS:  Yeah.

WELLS:  And I cut him.”

  1. [14]
    Sergeant Watts asked the appellant how the brawl began: 

“SGT WATTS:  No.  So you’ve gone over there and how did it get to the stage where he stuck you?  What’s happened?

WELLS:  Well, he tried to pull a knife on me.

SGT WATTS:  Mm.  And why did he do that?

WELLS:  I don’t know, ‘cause he’s got a mental ill-, illness or whatever the fuck they call it.

SGT WATTS:  Did you have any conversation leading up to him pulling a knife on you?

WELLS:  No, no, he’s quiet, man.  Quiet.

SGT WATTS:  Okay.

WELLS:  Quiet as.  Like he’s the best mate, and that’s what, that, that’s all I can say.

SGT WATTS:  Okay.  So where were you when he pulled the knife on you?

WELLS:  Well, at the kitchen bench, man.

SGT WATTS:  Yeah.  And where did he get the knife from?

WELLS:  On the bench.

SGT WATTS:  Okay.  And whose knife was that?

WELLS:  That’s his knife.”

  1. [15]
    The appellant’s reference to a “mental illness” had a basis.  Mr McClelland had been diagnosed as suffering from paranoid schizophrenia.  Expert evidence from his treating psychiatrist, Dr Bansod, was that people suffering from this condition hold false, but unshakeable, beliefs in a state of affairs, suffer hallucinations, are prone to disorganised speech and may have a diminished emotional expression.  Mr McClelland was taking medication by means of a weekly injection that was administered at a local health facility.  Dr Bansod said:

“[I]n [Mr McCelland’s] case, from what I could see in the past when he was unwell, he has had a history of having auditory hallucinations, which means hearing voices which are not true, a thought disorder which leads to disorganised speech, and also referential delusions from the feelings.  Sometimes he would feel that he was talking to him.  They were the symptoms in the past and I believe that he was receiving this – this treatment to treat these symptoms but, rather, to help recover from these symptoms.”

  1. [16]
    Dr Bansod said that at a consultation in early October Mr McClelland did not come across as paranoid nor did he exhibit suicidal or homicidal ideation.  He could find no reference in any note on Mr McClelland’s file that he had ever had such tendencies.  Nurse Durnan, who treated Mr McClelland in Cooktown, said that he was wanting to get a job.  Dr Bansod said that if a person is “future-focused” and is making positive plans, that may signify that the person is looking at the future in a good way.
  2. [17]
    The appellant told police that Mr McClelland “was trying to stab me” and then:

“WELLS:  Well, we wrestled for a bit, man.

SGT WATTS:  Sure.  Okay.  How did you grab it?

WELLS:  What do you mean?  Just grab the knife.

SGT WATTS:  Okay.  Did you grab it by the handle or --

WELLS:  [INDISTINCT].

SGT WATTS:  Or the, or the blade or how did you grab it?

WELLS:  No, I grabbed him, pushed him away and grabbed the knife.

SGT WATTS:  Yeah.

WELLS:  That’s when he tried to keep coming though.

SGT WATTS:  What did you do with the knife when he, he kept coming?  Can you explain that to me?

WELLS:  By stabbing, hey.

SGT WATTS:  How many times did you stab him?

WELLS:  Like twice.

SGT WATTS:  Twice?  And where did you stab him?

WELLS:  No, he jumped up like he was, he jumped up, man, he grabbed the knife, he said, fuck, youse [sic] are gonna die and I was like, fuck, what?”

  1. [18]
    The appellant explained that he had stabbed Mr McClelland on the left side of his chest.  He described what happened next:

“WELLS:  And he jumped up ‘cause he was, he was still thing, he was like ring the pol-, ambulance and I was like, yeah.  And he just jumped up, ran…slit his throat and I was fuck that, that’s why I jumped over the fence.  That’s the actual story.

SGT WATTS:  Okay.

WELLS:  So I jumped over the fence, man.

SGT WATTS:  You stabbed him twice?

WELLS:  He was still alive.

SGT WATTS:  Then he got up?

WELLS:  He jumped up and stabbed himself.

SGT WATTS:  How did he get hold of the knife again?

WELLS:  ‘Cause he grabbed it up, I threw it down, he grabbed it.  That’s when I ran back and grabbed it and I threw it down the creek.  That’s where it’s gone, it’s in the creek.”

  1. [19]
    A little later the appellant repeated that Mr McClelland had cut his own throat:

“SGT WATTS:  So you’ve actually just stabbed him twice, you said you then put the knife on the ground?

WELLS:  Yeah

SGT WATTS:  Okay.

WELLS:  ‘Cause I was gonna run over and call the ambulance and he said, no, fuck it…then he just slit his throat.”

  1. [20]
    A short time later the appellant provided further details as follows:

“SGT WATTS:  Okay.  And how many times did he stab himself?

WELLS:  Not sure.  I didn’t stick around.  Fuck that.

SGT WATTS:  All right.  And you said he cut his own throat as well?

WELLS:  Yeah.  That’s why I grabbed the knife and then ran.

SGT WATTS:  Okay.  That’s what I was gonna say, you said so how did he cut his throat?  Can you show me how he cut his throat?

WELLS:  I wasn’t there.  I don’t know.

SGT WATTS:  How do you know he cut his throat?

WELLS:  Well, obviously Mum told me.

SGT WATTS:  Okay.

WELLS:  ‘Cause she said she walked in and seen him.

SGT WATTS:  And how many times did he cut himself in the chest?

WELLS:  Not sure.

SGT WATTS:  Why don’t you know that?

WELLS:  Because I wasn’t there.

SGT WATTS:  Okay.  You said before he jumped up and started to cut his own throat.

WELLS:  I’ve been done like twice, man, like I, I done it twice and I just took off but I knew he kept going because I heard him, I just took off.

SGT WATTS:  What did you hear?

WELLS:  Ah, ah, ah, all that kind of shit.  I just took off.

SGT WATTS:  Okay.

WELLS:  Fuck that, I’m not sitting around for that.

SGT WATTS:  You were pretty sure before you saw him do it and you changed now, you didn’t see him do it?

WELLS:  No.

SGT WATTS:  Which is it?

WELLS:  I heard him.

SGT WATTS:  Heard him do it?

WELLS:  And I ran, yeah.”

  1. [21]
    The appellant’s story changed slightly:

“SGT WATTS:  Okay.  And you said when you left he kept stabbing himself?  Okay?

WELLS:  He’s got a mental illness.

SGT WATTS:  Okay, yeah.  You said he kept stabbing himself after you left with that same knife?  But you said you had the knife and threw it in the creek.

WELLS:  Yeah, after he threw it down that’s when I went back the second time and I turned on the light.

SGT WATTS:  Right.

WELLS:  And I picked it up.  Yeah, all that, we didn’t have coffee then.

SGT WATTS:  Yeah, so you’re saying now that after you stabbed him twice you put the knife down?  He’s then --

WELLS:  No, I didn’t put it down.

SGT WATTS:  Okay.

WELLS:  He, he grabbed it off me.”

  1. [22]
    The story changed again a little later:

“WELLS:  Then he jumped up and he’s like that’s when, that’s when he threw it on the ground or I threw it on the ground first and then he picked it up again and I’m trying to wrestle it off him again and he just started…and I was like, I seen him do it twice.  I stabbed him twice.  I seen him do it twice.

SGT WATTS:  Yeah.

WELLS:  And that’s when I just --

SGT WATTS:  How did he get the knife to his throat?

WELLS:  He’s like…well obviously ‘cause Mum told me.

SGT WATTS:  Okay.  Did you cut to the throat?

WELLS:  No.

SGT WATTS:  So you didn’t cut to the throat?

WELLS:  No.  I didn’t even know he done it [sic], man.

SGT WATTS:  Okay.

WELLS:  He’s psycho.

SGT WATTS:  So how did you get hold of the knife to take it off him and run away with it?

WELLS:  Well, when I went back the second time.

SGT WATTS:  The second time?  Okay.  Is that before or after you told Mum to call the police?

WELLS:  That’s the second time, after.

SGT WATTS:  So after you told Mum to call the police you went back to the house to get the knife?  So why did you go back to the house?

WELLS:  Because I wanted to see if he was alright.”

  1. [23]
    Sergeant Watts made an attempt to clarify what the appellant was saying:

“SGT WATTS:  Yes, I just want to get it right, that’s all, mate.  So I know you told us already but your first version jumped around and then you changed your version a few times.  Okay?  I just want to get the final true version.  Okay?  Start from when you went there and --

WELLS:  Yeah, he, he stabbed himself more times.

SGT WATTS:  Okay.  Just start from the start again for me.  I know that we’ve gone over this a few times.

WELLS:  Yeah.  But I seen him do it.

SGT WATTS:  Okay, okay.  Can you at least start from the start?  Pretend I don’t know anything at all and just tell me the true, one hundred per cent version?

WELLS:  No, you’re doing my head in, mate.  He did stab himself, like fucking five or six times.”

  1. [24]
    The appellant said, “It was basically self-defence, man.”  Sergeant Watts explained “it’s a serious offence” and that they were “talking about murder”.  The appellant said:

“WELLS:  What a stupid cunt.

SCON YOUNG:  Find out.

SGT WATTS:  Who’s stupid, Sam?

WELLS:  Oh, fucking David.  Stupid in the head.

SGT WATTS:  Why is he stupid?

WELLS:  No, he’s got a mental sort of like disorder or something.

SGT WATTS:  What’s wrong?

WELLS:  Fuck, he’s just attacked me, man, but he’s, I know him to be the fine, finest person ever.

SGT WATTS:  So what?

WELLS:  He’s a good fella, man.  A good fella.  Top bloke.

SGT WATTS:  Mmhmm.

WELLS:  For him to do that, that night, and he wasn’t even drunk.

SCON YOUNG:  He wasn’t drunk?

WELLS:  No.  He only had like two cans, three cans.”

  1. [25]
    That interview stopped at about 12.50 am and resumed twenty-five minutes later.  The appellant stuck to his latest version.  He gave this description of Mr McClelland stabbing himself:

“SGT WATTS:  So after you’ve put him back down and splashed the blood, you said before you took off, okay, and then you said you --

WELLS:  No, I didn’t take off.  I stood there for a bit.

SGT WATTS:  Yeah.

WELLS:  And I watched him stab himself more.

SGT WATTS:  Yeah.  Was he standing or lying down when he stabbed himself?

WELLS:  No.  He was standing.

SGT WELLS:  Standing?

WELLS:  He stood up and the, the blood was dripping down his leg and shit.

SGT WATTS:  All right.  And what did he say to you when you said he stabbed himself?

WELLS:  Just said fuck youse [sic] all but I think that was for the next door neighbour ‘cause they don’t get on proper.”

  1. [26]
    The appellant described how Mr McClelland had cut his own throat:

“SGT WATTS:  The one across the throat, can you tell me where that one came from?

WELLS:  He done it [sic] himself.

SGT WATTS:  Okay.  Did you see him do it?

WELLS:  Yeah, I did actually.

SGT WATTS:  And how did he do that?

WELLS:  Well, how else would you do it?

SGT WATTS:  Can you show me how he did it?

WELLS:  Well, he, after you stab yourself, mate…straight across the throat.

SGT WATTS:  With which hand did he do it with?

WELLS:  His left, I think.  Yeah, his left.

SGT WATTS:  Okay.  And how many times did he do it?

WELLS:  Once, I think.  I don’t know, man.  I can’t really.”

SCON YOUNG:  I’ve just got one thing.  Um, an injury that’s happened to his neck or his throat I just want you to explain that to me again, please.

WELLS:  He sliced his own throat.

SCON YOUNG:  Okay?  Using which hand, I think you mentioned before.

WELLS:  His left.”

  1. [27]
    The appellant had previously said that he had not seen this happen:

“SCON YOUNG:  … Earlier on you told us something different to that.

WELLS:  What did I say?

SCON YOUNG:  I believe you talked about you were told that that happened, you didn’t see it.

WELLS:  Yeah.  Actually Mum said that, I’m just going off Mum, yeah.  Obviously would have went like that, wouldn’t it?

SCON YOUNG:  So were you present when he did that?

WELLS:  No.

SCON YOUNG:  So what --

WELLS:  No, I was just going off what Mum said so --

SCON YOUNG:  What conversation have you had with your mum about that?

WELLS:  ‘Cause she walked in, she said she seen him [sic].

SCON YOUNG:  Seen him --

WELLS:  When everyone’s doing all the --

SCON YOUNG:  Okay, so when you leave what has he, what has he done or what is he doing when you leave?

WELLS:  He was stabbing himself in the chest.”

  1. [28]
    The appellant explained why he had stabbed Mr McClelland:

“SGT WATTS:  Okay.  Um, just got a few basic questions for ya.  Um, what made you feel the need to push the knife back to him?

WELLS:  Self-defence.

SGT WATTS:  Okay.  If you didn’t push the knife back to him what would have occurred?

WELLS:  He would have stabbed me.

SGT WATTS:  Okay.  We’re going to finish up very soon.  Okay?  You’ve changed your version quite a few times since the first time I spoke to you right through to now?

WELLS:  Yeah, but in the end, man, it’s self-defence, that’s all it is.”

  1. [29]
    The appellant said that when he went home he did not tell his mother what had just happened:

“SGT WATTS:  What did you say to her exactly?

WELLS:  Well, I just said, he needs help.

SGT WATTS:  Did you say anything else to her?

WELLS:  No, I just said, he needs help.

SGT WATTS:  Okay.

WELLS:  ‘Cause if I’d have told them they would have killed me too.

SGT WATTS:  Who would have killed you?

WELLS:  No, not killed but you know what mothers are like?”

  1. [30]
    The appellant gave evidence.  He described what happened in his evidence-in-chief.  This version was significantly different from the version that he had given to police.

“I went over there to see what was – David McClelland was doing, and when I got there I seen him.  He was having a cone, which is out of the bucket set, which is a utensil to smoke cannabis in.  And I offered him to come back over to have a beer and in – he’s like, “Yep.”  But at that same time, he was making coffee on the stove and he offered me a coffee and I said, “Yep”.  So – and we’re standing up and I was talking to him and I couldn’t see – I was looking at his back the whole time and he was responding to me, to my questions and that.  And all of a sudden, he just, like, went quiet.  And I was trying to talk to him and he didn’t – didn’t respond.  And he was mumbling.  I couldn’t understand what he was saying, but he was mumbling.  And by the time he turned around, he’d grabbed a knife off the bench – because I was standing closest to the bench on the side – and in – in my defence, I was trying to, like, because he ran at me with the knife and he nicked my finger.  And the result I was angry, and I thought my – because my – he has tried to attack me.  So I took my anger out on him.  And we struggled, I grabbed the knife and I stabbed [McClelland] in the side of the ribs, causing him to fall over.  And I dropped the knife, he picked the knife up and he inflicted some wounds on himself that I’ve seen.  He threw the – threw the knife back down.  I picked it up and I ran back over to many [sic] parents house and I told them to call the police and I had the knife in my back pocket and my hands was full of blood and ---

I just want to interrupt you for a moment.  How many times did you stab David?---About six times.  Six times.

When you went to your parents’ house, what did you do then?---I asked them to call the police and the ambulance and they – they must’ve – yep – went up the road or something and that’s when I freaked out.  I ran down the – I grabbed a set of clothes.  I’ve ran down the back and I threw my clothes in the tree and changed down there and I walked back.”

  1. [31]
    In cross-examination there was the following evidence:

“You weren’t bending down over him at some stage when you were stabbing him, were you?---I’m not sure.

Isn’t that why you have blood up the leg of your shorts on the right side?  Because he’s on the floor when you were stabbing into his chest?---I’m not sure.”

  1. [32]
    There were multiple stab wounds on Mr McClelland’s body.  The evidence of Dr Botterill, a forensic pathologist, established the following:
    1. (a)
      There were five stab wounds just below the right nipple.  They were oriented in an up and down direction, that is, as if the blade had been vertical when it entered the body.  Four of these wounds, which were the deepest, penetrated “the front part of the right side of the heart” as well as the front part of the right lung.  The direction of these wounds, from the perspective of Mr McClelland, was from the right to the left and downwards.  These wounds would cause “a great deal of bleeding” and the wounds would permit air to enter the arterial system.  Death could be caused by the resulting bleeding or by air embolism.
    2. (b)
      There were three stab wounds in the centre of the chest in the region below the breast bone.  The direction of these wounds was from the right to the left and in an upwards direction.
    3. (c)
      There were two stab wounds just below the first set of five wounds.  It was not possible to determine their direction.
    4. (d)
      There was an obliquely oriented stab wound, with a left to right direction, on the left side of the chest below the nipple.
    5. (e)
      There was a stab wound above the left nipple, towards the centre of the chest, with a downward direction.  It was not possible to determine whether it was left or right oriented.
    6. (f)
      There was an oblique stab wound above and slightly to the left of the right nipple.  Its direction could not be determined.
    7. (g)
      There were two shallow cuts across the neck.  The largest was about 16 and a half centimetres long.  The wound penetrated the skin but did not damage the underlying tissues.  It was not possible to determine the direction of the cuts.
    8. (h)
      There was a two centimetre graze on the right side of the lower chest, evidently caused by a blunt force, such as the handle of a knife.
    9. (i)
      There was a laceration in the area between the interior of the upper lip and the upper gum consistent with blunt trauma.
    10. (j)
      There was an abrasion over the shiny surface of the lower lip consistent with blunt force trauma, consistent with a punch.
    11. (k)
      There was an abrasion on the left side of the face, between the side of the nose and the left cheek, consistent with a punch.
    12. (l)
      There was a graze across the side of the left eye socket, consistent with a punch.
    13. (m)
      There were areas of skin loss on the forearms, the arms and the left hip region.
  2. [33]
    Any of these wounds could have been self-inflicted.  Dr Botterill also said:

“As a general principle, wounds across the front of the neck, if they’re relatively shallow, are less likely to be inflicted by another person, but, again, it’s not possible for me to say whether they were self-inflicted or otherwise.  But, in truth, all of these injuries could conceivably – certainly could have been self-inflicted.”

  1. [34]
    In cross-examination the appellant, who gave evidence at the trial, admitted that he might have caused the stab wounds referred to in sub-paragraphs (a), (c) and (f) above.
  2. [35]
    Mr McClelland’s blood contained traces of an antipsychotic drug, which was consistent with medical treatment that he was receiving, some metabolites of cannabis, which indicated that he had consumed the drug, and a blood alcohol level of 0.01 per cent, a very low level.
  3. [36]
    A forensic scientist, Sergeant Vanessa Lobegeier, gave evidence about blood stains found at the scene and on the appellant’s shorts.  The stains on the shorts implied that the “blood source” of the “spatter” was below the wearer of the shorts.  She also gave evidence about blood spatter on shelving and on a door.  The pattern implied that the source of the blood was below the spatter and, having regard to the location of the spatter, that suggested that the source was on the floor.  Also, there were no blood spatters on the singlet that the appellant had worn.  There were blood stains on the singlet, but these were “transfer stains” made by touching another bloodstained object.
  4. [37]
    The Crown case was that an intention to kill could be inferred from the nature of the wounds.  The first set of wounds was caused by repeated stabbing with a knife that penetrated into the right lung and the heart.  To these wounds could be added all of the other wounds.  The jury could infer an intention to kill or to cause grievous bodily harm from the frenzy of the attack.  The Crown submitted that self-harm was implausible because Mr McClelland had no history of that kind of behaviour.  Moreover, his illness was in remission.  The Crown submitted to the jury that the appellant’s intoxication was not so great that there could be a doubt about his capacity to form an intention to kill.  His self-awareness could be inferred from his ability to formulate a plan to get rid of the evidence, namely his clothing and the knife.  It was also evident in his ability to make up a series of coherent (although inconsistent) lies which he told to police.  One of these lies involved an attempt to misdirect the attention of police towards a neighbour who, the appellant suggested, had threatened to hit Mr McClelland with a golf club.  The Crown submitted that the many inconsistencies in the appellant’s statements meant that his accounts were all entirely unreliable.  Further, the appellant’s account of struggling on the floor could not be true because that would have resulted in blood stains on the appellant’s singlet but there were none that could be consistent with that having happened.
  5. [38]
    As to self-defence, the Crown submitted that a comparison between the injuries suffered by Mr McClelland and the injury suffered by the appellant demonstrated which of them had been the real victim of a deadly assault.  In any event, even on the appellant’s own evidence, he had disarmed Mr McClelland before suffering any injury of consequence.  After that, there was no longer any need to stab Mr McClelland.
  6. [39]
    Further, the appellant’s own account eliminated any reliance upon provocation as a defence because, as the prosecutor, Mr Fuller QC, put it:

“So let’s look at that.  Even on the high point of Samuel Wells’ evidence, David McClelland, the quiet guy from next door, the nice bloke, standing by the stove, offers him some coffee.  For whatever reason, he turns and picks up a knife and comes towards him, there is a struggle, and he is able to disarm him.  What’s the act that follows in the heat of passion?  All of those stab wounds.

Would an ordinary person, with David McClelland coming at them, the 40 year old quiet neighbour, would that cause you, as an ordinary person, to lose control, to react and do what happened, to reduce this offence from murder to manslaughter?  In my submission, again, that you have little difficulty dismissing that in this case.  We don’t know what started it, we don’t know what motivated it, but we know what happened, we know who was responsible for those injuries, and we know where they occurred, and the injuries speak for themselves.”

  1. [40]
    The Crown also relied upon the appellant’s actions after the killing as proof of guilt.  It was submitted that, when confronted by police, he had to tell “a different story to distance himself”.  So he changed clothes and got rid of the evidence.  Then, in his first account about getting rid of the bloodstained clothes, the appellant claimed that he had run to the creek in a panic and had thrown his shorts and singlet into the mangroves but in his sworn evidence he said that he had first gone home to collect clean clothing and had only then gone to the creek to get rid of the evidence, including the knife.  He had falsely denied any involvement on the killing and tried to inculpate a neighbour.  He falsely claimed to have attempted to administer CPR, but the body was face down when police found it so that could not be true.
  2. [41]
    The appellant amended his notice of appeal to raise two grounds:

“(a) The verdict of the jury was unreasonable or cannot be supported having regard to the evidence.

  1. (b)
    The trial judge erred in directing the jury about the appellant’s post-offence conduct and the telling of lies by:

i.  Failing to properly identify the element of the offence to which this conduct was said to be an admission.

ii. Failing to direct, that in the circumstances, the standard of proof as to these matters was beyond reasonable doubt.” (footnote omitted)

  1. [42]
    In their outline, Mr PJ Wilson and Mr CD Hughes, who appeared for the appellant, submitted that there was insufficient evidence upon which the jury could have been satisfied that the appellant intended to cause death or to do grievous bodily harm.  They accepted that it could be assumed that the jury had rejected the appellant’s own evidence about his state of mind.
  2. [43]
    In his evidence at trial, the appellant accepted that he may have been responsible for the wounds referred to in sub-paragraphs 32(a), (c) and (f) above.  These were critical because the wounds described in paragraph 32(a) penetrated the heart and were fatal.  He accepted that Mr McClelland might have been lying on the floor when he inflicted those wounds.  The problem is that the appellant gave no evidence about his state of mind except to say that he was “angry” and in a “rage”.
  3. [44]
    It was submitted on appeal that it remained open on the evidence that the appellant killed Mr McClelland without having formed any specific intent.  It was possible, it was submitted, that the appellant was “acting unthinkingly without any real thought as to what the consequences of his actions might be”.  This was, it was submitted, a “hypothesis consistent with innocence [which] could not be discounted”.
  4. [45]
    This submission should be rejected.  It was not a hypothesis advanced by the appellant in his evidence.  He never said that he neither intended to kill Mr McClelland nor cause him grievous bodily harm.
  5. [46]
    It was open to the jury to reject this hypothesis as contrary to the evidence of the sheer violence of the repeated stabbings, including into the vulnerable chest area.  That evidence, on its own, is capable of supporting the required inference.  Furthermore, the inference from the nature of the attack was supported by other circumstantial evidence.  The blood spatter evidence (the implication of which the appellant was expressly not prepared to deny when giving evidence) implied that he had inflicted these stabs wounds while his victim was lying on the floor.  Nor was the jury unable to reject intoxication as a factor in its consideration of the appellant’s intent.  There was the evidence, discussed above, that the appellant was in a sufficiently controlled frame of mind, despite his intoxication, to do many deliberate things in order to exculpate himself.
  6. [47]
    There was ample evidence upon which the jury could have concluded that the appellant’s attack upon Mr McClelland was an attack intended to kill Mr McClelland or, at least, intended to inflict serious injury upon him.
  7. [48]
    This ground should be rejected.
  8. [49]
    The appellant submits that the learned trial judge should have “identified that the post-offence conduct and the relevant lies were limited to establishing the relevant element of the offence” and that the jury “should have been warned that they ought not simply infer from the fact that he was implicated in the killing that he had the requisite intention or that the killing was unlawful”.  It was submitted that, although the appellant makes no complaint “about the detailed way in which the learned trial judge explained how the evidence could be legitimately used”, his Honour made “no clear demarcation of when that evidence could not be used” (emphasis in the original).
  9. [50]
    By the time of the summing up, there was no real issue whether the appellant had stabbed Mr McClelland and he had even acknowledged that he might have inflicted the fatal wounds.  The only remaining real issues were intention, self-defence and provocation.
  10. [51]
    The only lie that could be considered as circumstantial evidence of guilt was the appellant’s initial lie to police in which he denied that he had been involved in the killing at all.  The remaining lies were only relevant to the appellant’s credit and the learned judge directed the jury accordingly.  Henry J directed the jury in orthodox terms that, before that single lie could be used as circumstantial evidence of guilt, the jury had to be satisfied that the appellant had told a deliberate untruth, that the lie was concerned with a circumstance or event connected with the offence and that the appellant told the lie because he knew that the truth would implicate him in murder.  Henry J emphasised that last proposition by repetition.  By these means his Honour directed the jury appropriately in order to prevent the use of this evidence in a way that the law prohibits.
  11. [52]
    His Honour gave similar directions concerning the appellant’s other post-offence conduct.  Henry J directed the jury that before that conduct could be used as evidence of guilt the jury had to be satisfied that the appellant had done the acts because he was guilty of murder and not for any other reason.
  12. [53]
    The lie and the post-offence conduct were capable of proving consciousness of guilt of murder if the jury accepted that the appellant told the lie, or did the acts, to hide that:
    1. (a)
      he stabbed Mr McClelland intending to kill him (or cause him grievous bodily harm); or that,
    2. (b)
      when he stabbed him he was not acting in self-defence; or that,
    3. (c)
      he had not been provoked, or all or any of these.
  13. [54]
    If the jury excluded the other posited explanation for the lie and for the acts, namely panic, and were satisfied that the lie was told, or the acts were done, for one of those purposes, then the lie, or the conduct, would be relevant to guilt.  In giving his directions, Henry J was rightly concerned to direct the jury how they may not use the evidence to reason to a conclusion.  It was not his Honour’s function to direct the jury how to reason to a conclusion[1] and, contrary to the appellant’s submission, his Honour did not do so.
  14. [55]
    Yet the appellant submits that there “remains the possibility, in the absence of a specific warning, that the jury could have given these bodies of evidence broader importance”.  The appellant submits that this evidence was “of central importance” and that, as a consequence, “the jury should have been directed that they needed to be satisfied beyond a reasonable doubt as to this evidence before being able to use it further.”
  15. [56]
    This submission should be rejected.  A jury does not have to be satisfied beyond a reasonable doubt “as to … evidence before being able to use it further”.  A jury has to be satisfied beyond a reasonable doubt that the Crown has proved each of the elements that make up the offence.  When intent is an element, as in this case, then the jury may find intent by drawing an inference from the whole of the evidence, whether or not each individual piece of evidence relied upon is proved beyond a reasonable doubt, provided they reach their ultimate conclusion beyond a reasonable doubt.[2]  A particular fact must be proved beyond a reasonable doubt if its proof as an intermediate fact is an indispensable link in the chain of reasoning towards an inference of guilt.[3]
  16. [57]
    In this case, in order to prove the appellant’s guilt, the Crown did not have to prove that the appellant had lied in order to hide his guilt.  There was other evidence to prove his intention, to prove the lack of any need for self-defence and to prove the absence of any provocation.  The jury could take into account all or some of the evidence, including the lie and the post-offence conduct, in order to reach its conclusion about intent, self-defence and provocation.  Proof of the nature of the lies and conduct was not an indispensable step in the reasoning process to a guilty verdict.
  17. [58]
    Indeed, the appellant does not submit that the lie and other acts were indispensable intermediate facts of that kind.  Rather, he submits that these facts were “of central importance” and, because of that, they had to be proved beyond a reasonable doubt.  There is no principle of law that intermediate facts of central importance have to be proved to the criminal standard.
  18. [59]
    The ground should be rejected.
  19. [60]
    The appeal should be dismissed.
  20. [61]
    MORRISON JA:  I have read the reasons of Sofronoff P and agree with those reasons and the order his Honour proposes.
  21. [62]
    MULLINS JA:  I agree with the President.

Footnotes

[1] Azzopardi v The Queen (2001) 205 CLR 50 at [50] per Gaudron, Gummow, Kirby and Hayne JJ.

[2] Shepherd v The Queen (1990) 170 CLR 573 at 580 per Dawson J.

[3] Ibid, at 579.

Close

Editorial Notes

  • Published Case Name:

    R v Wells

  • Shortened Case Name:

    R v Wells

  • MNC:

    [2020] QCA 155

  • Court:

    QCA

  • Judge(s):

    Sofronoff P, Morrison JA, Mullins JA

  • Date:

    24 Jul 2020

Litigation History

No Litigation History

Appeal Status

No Status