The Queen v Guise[1998] QCA 158

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 96 of 1998.

Brisbane

[R  v.  Guise]

T H E     Q U E E N

v.

DEBBIE MAREE GUISE

 Appellant

Pincus J.A.

Ambrose J.

Lee J.

Judgment delivered 19 June 1998

Separate reasons for judgment of each member of the Court, each agreeing as to the orders made.

APPEAL AGAINST CONVICTION ALLOWED, VERDICT OF MURDER SET ASIDE AND A NEW TRIAL FOR MURDER ORDERED.

CATCHWORDS: CRIMINAL LAW - Murder - appeal against conviction - whether the trial judge should have left to the jury a defence of accident - appellant denied the existence of the intention necessary to constitute murder - appellant claimed she only intended to frighten the victim - where Crown’s manslaughter case rested on s. 289 Criminal Code - whether the trial judge was entitled to accept the appellant’s concession that the appellant was guilty of manslaughter - whether there was a miscarriage of justice - whether a verdict of manslaughter should be substituted.

Criminal Code ss. 23, 289

Callaghan (1952) 87 C.L.R. 115

Evgeniou (1964) 37 A.L.J.R. 508

Auld (C.A. No. 80 of 1997, 11 July 1997)

O'Halloran [1967] Qd.R. 1

Pemble (1971) 124 C.L.R. 107

Williamson (1996) 67 S.A.S.R. 428

Griffiths (1994) 69 A.L.J.R. 77

Counsel:  Mr C Chowdhury for the respondent.

Mr A J Kimmins for the appellant.

Solicitors:  Director of Public Prosecutions (Queensland) for the respondent.

Stockley Furlong for the appellant.

Hearing date:  3 June 1998.

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 19 June 1998

The appellant was convicted of murder in the Supreme Court at Rockhampton and appeals on the basis that the primary judge inadequately directed the jury.  The only complaint made is that the judge should have left to the jury a defence of accident.  The Crown case was that the appellant shot her mother, towards whom she had previously displayed some animosity, killing her.  That was not disputed and the defence was that there was no adequate proof of the requisite intention to constitute murder, so that the appellant should be convicted of manslaughter only.  The judge told the jury, in effect, that if they were not satisfied of the requisite intention they should find the appellant not guilty of murder and added "you will then be asked, do you find her guilty or not guilty of manslaughter, and you will on the evidence find her guilty of manslaughter".

There are passages in the appellant’s evidence, some aspects of which evidence seem very improbable, which amount to denials of the existence of the intention necessary to constitute murder;  for example, the appellant said that she "just wanted to scare" her mother.  When asked whether she aimed the gun at her mother, she answered, "No, my arm just come out".

Counsel for the appellant pointed out that in the course of the trial judge’s directions to the jury his Honour mentioned a prosecution submission that "there cannot be any question of accident".  This might be thought to show that the prosecution regarded it as part of their task to negate accident, but is equally capable of implying merely that the jury did not have to consider that question.  It is first necessary to consider the legal framework applicable to the case.  Some difficulty is encountered in doing so for, although it is clear enough that the issue raised at the trial was whether the appellant shot her mother intentionally, it is not quite clear what alternative hypothesis - i.e. alternative to a deliberate shooting - the jury was being invited to think about.

One starts, I think, with Callaghan (1952) 87 C.L.R. 115, an appeal from Western Australia which is authority for the proposition that (using the Queensland numbering) in a case where s. 289 of the Criminal Code becomes relevant, "breach of the duty of care imposed by the section becomes one of the constituents of the crime of manslaughter.  The duty is ‘to use reasonable care and take reasonable precautions to avoid such danger’ " (119).  Then in Evgeniou (1964) 37 A.L.J.R. 508, a case from New Guinea, it was held that to obtain a conviction of manslaughter by negligent driving the Crown had to show criminal negligence arising out of a breach of the duty imposed by s. 289:  510, 512.  There both Taylor J. and Owen J. pointed out that in such a case s. 23 has no relevance (511, 513).  These and other relevant decisions were reviewed by the Court of Criminal Appeal in Hodgetts and Jackson [1990] 1 Qd.R. 456.  In Auld (C.A. No. 80 of 1997, 11 July 1997), a wounding case, the appellant’s defence was lack of intention to wound.  Although McPherson J.A. held that on the facts s. 289 could have no application, his Honour remarked of s. 289 that in circumstances in which it does apply "it has been held to have the effect of excluding the operation of s. 23(1);  see Evgeniou v. R (1964) 37 A.L.J.R. 508, 509‑510".  Here, if the jury had not been satisfied of the existence of the intention necessary to constitute murder then (apart from the concession made) it would have been necessary for them to consider whether manslaughter was proved.  There was no doubt that the appellant was a person who had in her charge and under her control a thing of such a kind as is mentioned in s. 289, and the Crown’s manslaughter case, in my opinion, rested on that section.

It was therefore unnecessary for the judge to discuss s. 23, in directing the jury.  His Honour raised with counsel for the defence, at the trial, whether he should give directions under s. 24 and under s. 289.  The reference to s. 24 was I assume prompted by evidence given by the appellant that she did not know the gun was loaded.  The judge suggested to counsel for the defence that giving directions about s. 289 would "unduly complicate things".  Counsel, in effect, agreed.  The judge therefore made no reference to s. 289 and no redirections were sought.

The problem in the case is therefore not quite that which the appellant has identified.  There was no occasion for the judge to refer to s. 23, because the Crown’s case on manslaughter rested on s. 289 and in such a case s. 23 is irrelevant.  The judge did not give directions under s. 289 because it was common ground that the appellant was at least guilty of manslaughter.

The point taken on appeal did not focus upon the judge’s acceptance of the concession that the appellant was at least guilty of manslaughter, but a challenge to that was necessarily involved in the argument advanced.  Mr Kimmins suggested for the appellant that the case before us raises a problem like that dealt with in O'Halloran [1967] Qd. R. 1.  There, as in the present case, the appellant killed a parent by shooting, but gave evidence that the only intention was to scare the victim.  The charge was one of wilful murder, but the jury returned a verdict of murder.  Stanley J. held that the jury should have been directed on criminal negligence (5) and Mack J. took a similar view (8).  The verdict of murder was set aside (because no such direction was given) and a verdict of manslaughter substituted. 

In O'Halloran one finds neither reference to s. 289 nor to the two High Court cases I have mentioned, but the case was decided on the basis that to prove manslaughter, it was necessary for the Crown to satisfy the jury that there was criminal negligence, that being consistent with the High Court decisions.  It does not appear to me, however, that the decision is directly applicable here;  the question in O'Halloran was essentially whether on the facts any question of negligence arose;  it was that problem which divided the Court. 

The line of authority which is most pertinent to the question whether the trial judge was entitled to accept the appellant’s concession that the appellant was guilty of manslaughter is that of which Pemble (1971) 124 C.L.R. 107 is the most familiar example.   That was, again, a case of death by shooting in which the assertion was that the accused only intended to frighten and it was also, like the present, one in which the defence was conducted on the basis that the verdict should be manslaughter, not murder.  The conviction of murder was quashed and a verdict of manslaughter substituted, because the judge did not tell the jury accurately what was necessary to constitute murder and, by two of the judges, because the trial judge was wrong in telling the jury, in effect, that there was no basis on which they could acquit of manslaughter.  It is the latter point which is of present relevance.  Barwick C.J., although holding that the summing-up was not in the relevant respect deficient, said that if the jury had been told that the only verdict was one of murder or of manslaughter "the charge would have been fundamentally in error" (117). Menzies J. said:

"As I have said, counsel for the accused invited the jury more than once to convict him of manslaughter.  In these circumstances there is a natural and strong tendency not to impute error to the judge when he said the matter for the jury to decide was whether the accused was guilty of murder or something less.  Nevertheless I consider that even in the circumstances of this case this was a misdirection.  The starting point is that once there is a plea of not guilty, the Crown must prove every element of any crime covered by the indictment before the jury can convict.  Furthermore it is always in the power of a jury to acquit and that power cannot be denied:  Gammage v. The Queen.  Moreover, counsel for the defence cannot effectively disclaim a defence open to the accused upon the evidence.  The judge must submit that defence to the jury.  Even less can counsel concede a matter of law to the disadvantage of the accused.  The law is always for the judge as counsel for the defence rightly told the jury" (132, 133).

Owen J. agreed that the issue whether or not Pemble was guilty of manslaughter should have been left to the jury (141).

A more recent treatment of the same subject is to be found in Williamson (1996) 67 S.A.S.R. 428, a case of death by stabbing.  Again, counsel for the defence below did not argue for a not guilty verdict, but for one of guilt of manslaughter (437).  Having been convicted of murder, the appellant engaged new counsel who withdrew the concession that the appellant was guilty of manslaughter on appeal and did so successfully;  the Court held that despite the concession the judge should have directed the jury that a complete acquittal was open.  There are factual differences between Pemble and Williamson, on the one hand, and the present case on the other, but I can see none sufficient to distinguish those cases.  One might have thought that the law could have developed in a different direction, entitling the defence, if thought desirable, to have a homicide case put to the jury as a choice between a verdict of murder and one of manslaughter.  There is nothing to stop defence counsel from advancing argument to the jury along these lines, but it is my opinion that, generally if not universally, the trial judge is not entitled to accept the concession and is obliged to explain to the jury of what matters they must be satisfied in order to convict of manslaughter.

In the present case that was not done. Mr Chowdhury argued for the respondent that there was no miscarriage of justice because the verdict returned necessarily excluded the possibility that the appellant was guilty of manslaughter. only;  that is so.  The difficulty in the present case, however, is that the case was left to the jury on what, on the authorities, was a wrong basis:  as a choice between murder and manslaughter.  It was explained to them what was entailed in reaching the former verdict, but not the latter.  It seems unlikely that the verdict would have been any different if the judge had taken the course which the authorities appear to me to require.  But the result of O'Halloran the description of the relevant error, in Pemble, as "fundamental" by Barwick C.J. (124 C.L.R. at 117) and the discussion of the matter in the same case by Menzies J., quoted above, point to the regrettable conclusion that this case must be tried again.  Mr Kimmins argued that a verdict of manslaughter should be substituted, but it is not clear to me how that course could be justified;  the evidence supporting the verdict of murder was very strong.

I would allow the appeal, set aside the verdict and order a new trial for murder.

REASONS FOR JUDGMENT - AMBROSE J.

Judgment delivered 19 June 1998

I have had the advantage of reading the reasons for judgment of Pincus JA.  I would also allow the appeal and set aside the verdict and order a new trial for murder but I have come to that conclusion by adopting a slightly different approach. 

In my view in spite of the failure of counsel for the appellant to raise s. 23, nevertheless, the evidence given by the appellant was such as to make it necessary for the learned trial judge to sum up to the jury on the whole of the evidence with reference to s. 23 and s. 289 of the Criminal Code. 

At the outset, I must observe that the evidence given by the appellant impresses one as being  highly improbable and of a character which one might think would be unlikely to leave most juries  in much doubt that the appellant unlawfully killed her mother intending to do so or to cause her grievous bodily harm. 

On the other hand in my view, the appellant made it clear in her evidence that the discharge of the pistol did not result from her willed act. 

It is unnecessary to traverse the improbable and inconsistent version of events about which  the appellant gave evidence both in-chief and in cross-examination.  I will refer only to the evidence she gave to the effect that the discharge of the pistol did not result from her willed act. 

She said that just prior to the shooting she had a pistol hidden down inside her pants.  The pistol according to her at that stage was cocked.  She said that she had never fired the pistol but had been told by the person who had supplied it to her some months earlier how to fire it.  She gave the improbable explanation that she had acquired the pistol to protect herself against three people, one of whom was her mother. 

The shooting occurred when the appellant visited a house where she knew her mother was staying, with a view to obtaining information from her about what had been said in the course of custody proceedings relating to her two young brothers.  She said that she was angry and upset.

She gave this evidence which was critical to the question of accident:-

“I just became angry and I can’t remember it happening but - my arm just swung out and the gun went off and Nanna... .”

When asked what she was intending to do, she said “just to scare her”.  She denied intending to actually fire a bullet into her mother or to kill her or to seriously injure her.  She was asked this question:-

Q. Did you aim the gun at her?

A. No my arm just come out.

She said she was angry, fed up, frustrated, and upset at the time.  After she had shot her mother she ran out of the home and walked to the police station and sat down outside waiting for police to arrive.

She said she did not know that the pistol was loaded, although she admitted that she had cocked the pistol before she went around to speak to her mother.

In the course of cross-examination the following evidence was given:-

Q. You still say that the purpose of taking the gun was for protection?

A. Yes

Q. No other purpose?

A. No

Q. If that was the only reason for you having the gun then why did you need to pull it to bring it               out at all?

A. Well I didn’t consciously bring it out.

Q. Certainly your mother was no threat to you as you were leaving the door was she?

A. No.

Q. You didn’t need it to protect yourself from your mother?

A. No.

------

Q. So you really brought the gun out for no reason at all?

A. I don’t know I wasn’t in my right state of mind I just didn’t know what I was thinking.

Q. But did you intend to scare her?

A. I just wanted to scare her.

She was asked again.

Q. So what do you remember about the shooting?

A.I just remember going to the door. Nanna had it open. I turned around and asked what happened again and she said it was a closed court, nothing was said about me, and she got custody and then all I remember was my arm coming out and then the bang and Nanna walking over to mum, mums hands slowly dropping from her - from her head.

Q.So you don’t remember how your arm and the gun came out of your jacket out of your jeans? You don’t remember what you were thinking?

A. No.

Q. You don’t remember pulling the trigger?

A. No.

-----

Q.When things weren’t going your way about the custody when things weren’t going your way because you weren’t getting the answers you wanted when you were told it was time to leave that’s when you took the gun out and you deliberately fired it at your mother?

A. I didn’t deliberately do it.

The killing occurred on 16 June 1997.  At that time s. 23 of the Criminal Code provided as follows:-

“23 Intention: Motive.  Subject to the express provisions of this code relating to negligent acts and omissions a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will or for an event which occurs by accident.

Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted in whole or part by an act or omission the result intended to be caused by an act  or omission is immaterial.” 

At the material time s. 289 of the Criminal Code provided as follows:-

“S. 289 Duty of persons in charge of dangerous things.  It is the duty of every person who has in his charge or under his control anything whether living or inanimate and whether moving or stationary of such a nature that in the absence of care or precaution in its use or management the life safety or health of any person may be endangered, to use reasonable care and take reasonable precautions to avoid such danger: and he is held to have caused any consequences which result to the life or health of any person by reason of any omission to perform that duty.”

The substantive provisions of s. 289 as it operated at the time of the shooting have remained unchanged. 

However unpersuasive her evidence might be thought to be by a jury there is no doubt in my view that the appellant gave evidence that she did not consciously discharge the pistol causing her mother’s death.

While it is true that she did not in so many words say that the discharge of the pistol was “accidental” it is clear in my view from the very short extracts of her evidence to which I have referred  that this was in essence what she swore to be the fact before the jury. 

Perhaps the latest consideration of the effect upon a trial where directions required under ss. 23 and 289 are not given is to be found in Griffiths v R (1994) 69 ALJR 77. 

In Griffiths the Crown brought a charge of manslaughter.  The evidence before the jury was that the accused in that case had admitted shooting or killing a friend and had indeed concealed this fact.  Apart from those admissions there was no evidence to connect the accused with the death of his friend.  The evidence was that the remains of his friend had been found in a deserted area in the mountains with a bullet hole in the back of the skull and with a misshapen bullet within the skull. 

In the course of his summing up the trial judge in that case directed the jury that the evidence raised no issue of authorisation, justification or excuse and that if satisfied that the accused did kill the deceased it would conclude that the killing was unlawful and would therefore find him guilty of the charge of manslaughter.

In Griffiths, Brennan, Dawson and Gaudron JJ observed at 78:-

“His Honour thus effectively withdrew from the jury any issue arising under the provisions of s. 23 and 289 of the Criminal Code (Qld).”

Their Honours pointed out that the onus of negating the application of s. 23 rested on the Crown.  They pointed out that in order to establish criminal responsibility for causing a death under s. 289 the Crown was obliged to prove criminal negligence.  Their Honours proceeded at 79:-

“If the appellant in fact fired the bullet which entered the body of John Apps and thereby caused his death the appellants criminal responsibility for manslaughter depended on proof that -

(i) the act of firing the bullet was willed or voluntary, that is, the act was not done independently of the exercise of the appellant’s will (s. 23, first limb)  and the death of the deceased did not occur by accident, that is, it was a foreseen or foreseeable result of that act (s. 23 second limb) or alternatively

(ii) that the death of John Apps was caused by criminal negligence (s. 289).

These were elements of the offence charged.  The crime of manslaughter can be committed either by a voluntary act which causes death in circumstances which do not amount to murder, or by criminal negligence.  Although the trial judge thought that careless handling of the rifle was the most likely explanation of the appellant’s killing of John Apps, the alternative basis for conviction of manslaughter were issues for the jury.  No particulars were asked for or given which confined the issues for the jury’s determination to one basis or the other.

A plea of not guilty puts all elements in the offence charged in issue and a trial judge is wrong to withdraw any element in issue from the jury, no matter how cogent a Crown case may be.  That is not to say that a particular direction must be given as to each element of an offence in a case where no contest as to a particular element is raised in the conduct of the trial and where the evidence does not itself raise an issue as to the existence of that element.   ..... In this case the trial judge erroneously withdrew from the jury critical issues the burden of proof of which lay on the Crown.”

At p. 80 after reference to Woolmington v. Director of Public Prosecutions [1935] AC 462  their Honours referred to and adopted the observation of Barwick CJ in Ryan v. The Queen (1967) 121 CLR 205 at 213:-

“By whatever adjective or adjectival phrase it is described, the deed which was not the result of the accused’s will to act cannot in my opinion be made the source of criminal responsibility in him.”

At p. 80 their Honours continued:-

“However some acts by a sane person while conscious may be involuntary as Woolmington itself illustrates.

In Ryan, Barwick CJ dealt with this situation in canvassing what he called “the fourth view” of the evidence in that case.  The “fourth view” was that the firing of the fatal shot by the accused was “a reflex or convulsive unwilled movement on a part of the body or its muscles.”

They then refer to what Barwick CJ said in Ryan at 216:-

“... it is consonant with principle, that an accused is not guilty of a crime if the deed which would constitute it was not done in exercise of his will to act.  The lack of that exercise  which precludes culpability is not, in my opinion,  limited to occasions when the will is overborne by that of another, or by physical force, or the capacity to exercise it is withdrawn by some condition of the body or of the mind of the accused.  An occasion such as the fourth view of the evidence in the instant case (ante) would, in my opinion, be an instance of a deed not the result of a culpable exercise of the will to act ... If voluntariness is not conceded and the material to be submitted to the jury wheresoever derived provides a substantial basis for doubting whether the deed in question was a voluntary or willed act of the accused, the jury's attention must be specifically drawn to the necessity of deciding beyond reasonable doubt that the deed charged as a crime was the voluntary or willed act of the accused.  If it was not then for that reason, there being no defence of insanity, the accused must be acquitted.”

In Griffiths the only reference to accident was in an admission made by the accused when recounting  the fact that he had shot his friend.  He said that the shooting was an accident.  Their Honours observed:-

“The burden of disproof that rested on the Crown was substantial not merely formal.”

Their Honours then dealt with the failure to direct the jury on the question of criminal negligence to attract the operation of s. 289 of the code.

On my understanding of Griffiths there was no evidence in that case as to precisely how the rifle was discharged.  On the facts of the present case there is an abundance of evidence from which the jury could be satisfied that the appellant was pointing the gun towards her mother’s chest while she stood within a room in the house more than one metre from her when it discharged and the expert evidence showed that to discharge the pistol it must have been cocked and a significant pressure applied to the trigger whilst simultaneously a safety device on the back of the handle of the pistol was deactivated. 

One might think that the strength of the evidence that the accused shot her mother and that it  was her willed and voluntary act was almost overwhelming.  The plain fact of the matter, however, is that the appellant gave evidence that she did not voluntarily discharge the pistol. 

One of the critical issues in the trial was whether the accused had unlawfully killed her mother.  The obligation was on the Crown to prove beyond reasonable doubt that neither limb of s. 23 of the Criminal Code applied.

Had a traditional direction on s. 23 been given to the jury in this case, it goes without saying that there would also have been a direction on s. 289 because, of course, s. 23 is subject to the express provisions of s. 289. 

Counsel for the appellant sought that the conviction for murder be set aside and a conviction for manslaughter be substituted for it. 

In my view the Crown had a very strong case of murder against the appellant and it would be  undesirable to take the course sought by the appellant.  This is an unfortunate case and I share the regrets expressed by Pincus JA that the appellant must be tried again.  The authorities to which Pincus JA has referred make it clear that generally speaking whatever the concessions made by counsel for an accused, the trial judge must look at the evidence actually placed before the jury and sum up with respect to all issues which the Crown is obliged to prove or disprove.

In my view Griffiths requires that the verdict be set aside and a new trial ordered and I would so order.

IN THE  COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Brisbane C.A. No.96 of 1998

Before Pincus JA.

Ambrose J.

Lee J.

[R v. Guise]

THE QUEEN

v.

DEBBIE MAREE GUISE

 Appellant

REASONS FOR JUDGMENT - LEE J.

Judgment delivered 19 June 1998

I have read the reasons of Pincus JA and Ambrose J in this matter. I agree with the reasons of Ambrose J for allowing the appeal and ordering a new trial. The orders on the appeal should be in the form foreshadowed by his Honour.