R v Griffin & Dunkerton[1999] QCA 71

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

CA No 309 of 1998

CA No 318 of 1998

CA No 352 of 1998

Brisbane

[R v.  Griffin and Dunkerton]

THE QUEEN

v.

BARRY MILLIAN GRIFFIN

and

MALCOLM STEPHEN DUNKERTON

(Applicants) Appellants

McMurdo P

Davies JA

Wilson J

Judgment delivered 19 March 1999

Joint reasons for judgment of McMurdo P and Wilson J; separate reasons for judgment of Davies JA concurring as to the orders made.

IN EACH CASE, THE APPEAL AGAINST CONVICTION IS DISMISSED, AND THE APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE IS REFUSED.

REASONS FOR JUDGMENT - McMURDO P AND WILSON J

Judgment delivered 19 March 1999

1. The appellants pleaded not guilty to murdering Gavin Duane Maskell on 22 August 1997.  Each was found not guilty of murder, but guilty of manslaughter.

2. Each appellant appeals against his conviction and also seeks leave to appeal against sentence on the grounds that the sentence was manifestly excessive.  The appellant Griffin, although present, requested that he be represented by his co-accused Dunkerton and the court gave the necessary leave.

The facts

3. The deceased worked out of a shed at Meakin Road, Kingston, not far from the appellants' home in Queens Road, Kingston.  On the evening of 22 August 1997, he had left his partner after an argument, screeching away in his car.  Dunkerton and Griffin shared a house with their partners and small children.  Dunkerton heard a car doing burnouts in and near their yard and woke up Griffin.  They investigated on foot and met up with Griffin's brother, Kevin, in his vehicle at the corner of Queens and Meakin Roads.  They told him about the burnouts and  Kevin joined their investigation.  Kevin drove down an alleyway leading to the deceased's shed and the appellants followed on foot.  It was about 9 p.m. and the deceased, his friend David Potter, and Potter's girlfriend Sharee Fredericks  were in the shed drinking alcohol.  Fredericks' six week old child was also present.  They heard Kevin Griffin's car "revving" in the driveway with its lights on high beam.  The car had been modified to make it noisier than a standard car.  The deceased got a gun, went outside and fired a shot into the air, pumped the gun and came inside.  He then reloaded and went outside.

4. After the first shot, the appellant Griffin told Dunkerton to get a gun.  Griffin did not go home as there were small children at home and the deceased could have followed.  Dunkerton returned in about 3 minutes with a shotgun.

5. The deceased fired two more shots into the air, although Dunkerton believed more than two further shots were fired.

6. Potter saw the deceased move down the driveway hugging close to the building line and heard him say, "Are you from across the road?" and as Potter approached the deceased he noticed a person step out from behind the bushes.  Potter stepped sideways to get a better look and he saw a man "step out of the clear view and just swung the rifle around and just shot".  The gun was discharged by Dunkerton; the deceased was killed by pellets entering his left chest, lungs and aorta.  The deceased had both cannabis and alcohol in his blood at the time of death.

7. Kevin Griffin saw the deceased lower the gun and fire, pointing the gun in the direction of Kevin and his brother.  Dunkerton was about an arm's length from Kevin when Dunkerton's gun discharged and the deceased stumbled back.

8. The appellants and Kevin Griffin decamped.  On 23 August 1997, the appellants falsely denied any knowledge of the incident to police.  On 31 October 1997, a covert listening device was installed at the appellants' home and a conversation between the appellants and Kevin Griffin was recorded, in which the appellants discussed the need to go to the police and tell them what happened.  The appellants spoke of self-defence but not accident.

9. Dunkerton was again interviewed by police in a record of interview on 3 November 1997 in which he again denied any involvement in the incident until being told he had been implicated by Kevin Griffin.  He then changed his account in a further record of interview, admitting that the appellant Griffin told him to get a gun.  He returned with a pump-action shotgun from a mower shed, not knowing whether or not it was loaded.  He could not see the deceased and the gun discharged accidentally as he tripped on the gutter.  He thought the deceased had fired more than four or five shots.  He was familiar with the operation of a pump-action shotgun.  The safety mechanism must not have been on as the gun discharged.  He had had four months military experience, but was not a good shot.  He was carrying the gun with his finger on the trigger as that was the easiest way to carry it and that was consistent with his army training.

10. The appellant Griffin was interviewed by police at 2.17 p.m. on 3 November 1997 by way of a record of interview and admitted telling Dunkerton to get a gun, without turning his mind to whether or not it would be loaded.  The deceased fired more shots.  He heard, but did not see, Dunkerton's gun discharge. 

11. The appellant Griffin gave evidence largely consistent with his record of interview to police.  He denied Kevin's car was "revving" loudly.  The shot fired by the deceased, immediately before the fatal shot fired by Dunkerton was discharged above their heads.  Griffin did not get on with the deceased, who was a neighbour with whom he had had little contact for the past five or six years.  He did not realise the identity of the deceased until the deceased approached them with the gun.  Griffin was always intoxicated at that time in his life although this did not affect his ability to think and walk on this night.

12. The appellant Dunkerton did not give evidence.

Dunkerton's appeal against conviction

13. The appellant Dunkerton originally had two grounds of appeal, but was given leave to add three further grounds.  He then abandoned his first ground which was encompassed in ground 4.

14. His second ground of appeal was that he was not adequately represented at his trial by his defence counsel who failed to argue relevant points, call relevant witnesses and properly address the jury.  He first complains that the deceased's bad mood that evening was not highlighted by defence counsel at the trial.  The deceased's partner, Ms Jakel, agreed that prior to the deceased leaving the family home at about 9 p.m. they had an argument and he screeched out of the driveway and up the road in his car.  There are obvious tactical reasons why no questions were asked of this witness by either defence counsel, especially where that point was adequately made by the prosecutor in evidence in chief.  There is nothing in this complaint.

15. The appellant argues that other witnesses, including Fredericks and Potter had, prior to trial, given evidence or statements about the deceased's aggressive mood on the night: his barrister should have cross examined Fredericks and Potter about the deceased's burnouts in the appellants' yard.  Whilst there was no cross examination of Fredericks and Potter about the deceased's mood, there was other evidence of his mood and this complaint is of little consequence. 

16. He next complains that Crown witness Jarmo Jaaskelainen was not cross examined about the inconsistency between his evidence at trial that he heard four shots and an earlier statement that he heard five shots.  The appellant claimed in this appeal that it was the fourth shot fired by the deceased that made him duck and stumble.  The "bang bang" of two shots being fired in close succession by the deceased was, he argued, significant.  The only evidence before the jury supporting the appellant's claim that he tripped and stumbled, accidentally discharging the gun is contained in his final record of interview with police.  He claimed the deceased fired more than three shots and "I saw another muzzle flash or whatever.  I was running towards him and he went - I tripped over in the gutter and the gun went off.  I didn't even know it was loaded."  The appellant's claim to police was that, as he was running, he tripped over in the gutter, causing his gun to discharge; he made no clear suggestion that it was the fourth gunshot that caused him to trip.  This complaint is not justified.

17. The appellant's next point is that his counsel did not argue the significance of the position of the pellets in the deceased's arm, which, he submits, suggests that the deceased was aiming the gun directly at the Griffins, rather than above their heads.  Although self-defence was left to the jury, this appellant's defence at the trial was accident: it is difficult to see how his counsel could have effectively cross examined in this way consistently with the appellant's case that he stumbled and fell, thereby accidentally discharging the gun, without seeing the deceased beforehand.

18. The appellant further complains that his counsel did not call witnesses Pollack and Herring.  The appellant failed to give any convincing reason as to why his counsel should have called these witnesses.  It is noteworthy that although Griffin gave evidence, the appellant Dunkerton did not, thereby allowing his counsel to address the jury after the prosecutor.  We have no reason to conclude that this decision was made otherwise than on the appellant's instructions.

19. The appellant next complains that his counsel did not cross-examine witnesses as to the deceased's attempt to fire his gun again after he had been shot.  There may have been sound reasons why a competent defence counsel might not wish to investigate that sensitive area of cross examination, particularly as the appellant claimed accident. 

20. The appellant also complains that his counsel did not discredit the Crown witness Kevin Griffin, the brother of the appellant Griffin.  Much of Kevin Griffin's evidence was favourable to the appellants, raising self-defence and aiding in self-defence.  It is obvious why counsel would not wish to discredit him, and unclear what would be gained by discrediting him.

21. A report from the learned trial judge notes:

"I would observe that Mr Gundelach's address appeared to be competent consistently with his considerable experience.  It was necessarily burdened and limited by the strength of the Crown case and appeared to be selectively adapted to make the most of what was open to him to use.  No doubt, other approaches may have been open to him, but it appeared at the time to be a suitable address conformable with an acceptable strategy.

These observations are made in view of the absence of a record of the address."

22. In R v Paddon,^[1] this Court said:

"The court will not lightly infer that counsel's conduct of a trial, which has turned out badly for an accused was incompetent.

Unless the inference is the only one available and is compelled by the circumstances, it should not be drawn."

23. The appellant has not shown any good reason why this Court should infer that counsel's conduct of the trial below was incompetent in any single respect or through collective error.  There is nothing in this ground of appeal.

23. The appellant has not shown any good reason why this Court should infer that counsel's conduct of the trial below was incompetent in any single respect or through collective error.  There is nothing in this ground of appeal.

24. The appellant's third ground of appeal is "That prosecutor, David Bullock, was allowed to mislead the jury on relevant points in addition of the three perjured testimonies of Crown witnesses, 1. David Potter,  2.  Sharee Fredericks and 3.  Kevin Griffin, and therefore making the verdict generally unsafe and unsatisfactory."  The appellants written submissions and statements to the Court as to this ground of appeal amount to nothing more than a complaint about the inferences the Crown prosecutor suggested the jury could draw from the evidence, and the appellant's own hypotheses and inferences which he would have preferred the jury to accept.

25. The learned judge below in a report to this Court noted:

"I do not know what the ground of appeal refers to.  I listened carefully to the addresses of counsel, including Mr Bullock's address to the jury, and have no recollection of the jury being misled.  Had I noticed any attempt to mislead it, I would have intervened to prevent this from occurring."

26. The appellant has not presented any material to support this ground of appeal.

27. The appellant's fourth ground of appeal is "That evidence and statements of David Potter, Sharee Fredericks and Kevin Griffin, from the Police brief, to the committal hearing and finally to the Supreme Court trial, are so inconsistent with each other and with themselves as well, that all three witness's (sic) deemed to be unreliable, therefore making the conviction unsafe and unsatisfactory."

28. The appellant claimed that inconsistencies in the witness Potter's evidence as to his distance from the deceased when the deceased was shot were not highlighted by defence counsel.  The transcript demonstrates that this matter was cross examined upon by defence counsel, although it is not clear that an inconsistency was demonstrated.  No doubt the jury were invited to consider it in assessing Potter's credibility.

29. The appellant claimed that Sharee Fredericks' evidence was perjured because during cross examination by his defence counsel, she claimed for the first time that she saw the witness Potter next to the deceased just before he was shot.  No doubt this point was canvassed in addresses; it was a matter for the jury to decide when assessing the credibility of Fredericks.

30. The appellant's complaints about the evidence of Kevin Griffin have already been discussed.

31. The appellant has failed to demonstrate that the witness' evidence was perjured or that it was so inconsistent that the verdict is unsafe and unsatisfactory.  The learned trial judge left the defences of honest and reasonable mistake of fact, self-defence against provoked assault, self-defence against unprovoked assault, aiding in self-defence, provocation and accident to the jury.  There was ample evidence before the jury upon which they could safely find the appellant not guilty of murder but guilty of manslaughter.  This ground must also fail.

32. The appellant has failed to demonstrate that the witness' evidence was perjured or that it was so inconsistent that the verdict is unsafe and unsatisfactory.  The learned trial judge left the defences of honest and reasonable mistake of fact, self-defence against provoked assault, self-defence against unprovoked assault, aiding in self-defence, provocation and accident to the jury.  There was ample evidence before the jury upon which they could safely find the appellant not guilty of murder but guilty of manslaughter.  This ground must also fail.

33. This seems to amount to a further argument by the appellant that the verdict was unsafe and unsatisfactory.  The learned trial judge gave a detailed direction to the jury on the defence of accident and no error in those directions has been demonstrated.  We note that in the conversation recorded by way of a covert listening device in which the appellants and Kevin Griffin discussed self-defence, they made no mention of tripping or of  accidental discharge.  The appellant at best did not know if the gun was loaded; he had some past experience with firearms, having spent some months in the armed services, and he was running with his finger on the trigger, without ensuring the safety catch was engaged.  Whilst this evidence alone would have justified the verdict, Potter's evidence suggests a deliberate discharge of the gun in a criminally negligent way.  This ground and the appellant's appeal against conviction must fail.

Griffin's appeal against conviction

34. The appellant Griffin's sole ground of appeal is that he "was convicted as a section 8 party where the evidence did not establish any common unlawful purpose."

35. No sensible submission was made in respect of this ground of appeal.  The submissions consisted of Dunkerton restating the facts and inferences which he would have preferred the jury to accept.  The evidence from which the jury were entitled to infer a common unlawful purpose was the appellant Griffin's admission in evidence and to the police that he and Dunkerton set off together to investigate who had been doing "wheelies" in and near their yard and that after the deceased discharged his gun, Griffin told Dunkerton "Go and get a gun".  As a result of Griffin's request, Dunkerton returned three minutes later with the shotgun.  Pellets discharged from that gun killed the deceased.  The learned trial judge gave detailed instructions to the jury as to the common unlawful purpose in s 8 of the Criminal Code.  No error has been demonstrated in those directions.  The appellant Griffin's appeal against conviction should also be dismissed. 

The applications for leave to appeal against sentence

36. The applicant Dunkerton was sentenced to 12 years imprisonment with a declaration that 186 days pre-sentence custody be declared as time already served under the sentence.  The applicant Griffin was sentenced to nine years imprisonment. 

37. Dunkerton is 40 years old with an extensive criminal history commencing as a juvenile and continuing as an adult.  His convictions include dangerous driving causing death in 1979 for which he was sentenced to 18 months imprisonment; assault of a Correctional Services Officer in 1980; drink driving offences; assault occasioning bodily harm in 1995; drug offences  and offences of dishonesty.  His criminal history extends to seven pages and includes periods of imprisonment.

38. The applicant Griffin also has a significant criminal history extending to five pages, including offences of dishonesty; drink driving; drug offences and in April 1997 an offence of having possession of a weapon whilst not being the holder of a licence and further  drug offences.  He had not previously been sentenced to a term of imprisonment.

39. The applicant Dunkerton claims that a letter of remorse that he handed to his legal representatives in January 1998 was not handed up to the sentencing judge.  If this letter had indeed been given to his legal representatives prior to his conviction, it is, perhaps, unusual that it was not tendered by his counsel, although oversights can occur.  On the other hand, his lawyers may have decided the sentencing judge would treat the letter as insincere after a trial and conviction.  Interestingly, the applicant Griffin apologised to the Maskell family at the conclusion of submissions.  The applicant Dunkerton made no effort to join in that verbal apology, even though he had shown he was outspoken at other times during the trial.  Nor did he then request his counsel to tender his letter of apology.  In any case, it seems unlikely the letter would have had much effect on the sentence imposed.   The applicants lied to the police initially about their involvement in the matter and a number of defences were raised at the trial.  Remorse expressed after conviction would ordinarily have very limited mitigating effect.   Despite Griffin's apology, his Honour noted, "It is quite plain you have shown no remorse in respect of the matter right through."  The learned sentencing judge noted in respect of Dunkerton, "You have shown no remorse at all.  At all stages you have tried to whitewash your own involvement in the matter as far as you could."

40. The learned sentencing judge distinguished between the sentence imposed on each applicant, firstly because Griffin had spent 302 days in custody, which were not solely in respect of this matter and therefore could not be the subject of a declaration of pre-sentence custody.  In effect, this added two years to the nine year sentence imposed on Griffin.  The second reason for distinguishing between the two offenders was that Dunkerton was the principal offender.  It could also have been noted that Dunkerton's criminal history was worse than that of Griffin. 

41. The effect of Part 9A of the Penalties & Sentences Act 1992 is that Dunkerton is a serious violent offender and is therefore not eligible for any remissions whatsoever and is ineligible for release on parole until he has served 80 per cent of his sentence: see s.  166 Corrective Services Act 1988.  That Dunkerton must serve 80 per cent of his sentence before becoming eligible for parole  is not a proper reason to impose a lesser sentence than would otherwise be appropriate. After taking into account Griffin's prior history and his role in the offence, his Honour exercised his discretion not to declare Griffin a serious violent offender under Part 9A of the Penalties & Sentences Act 1992.

42. The effect of Part 9A of the Penalties & Sentences ActHis Honour, in comments to the prosecutor during sentencing submissions, seems to have accepted that the jury verdict was based on Dunkerton's deliberate pointing and discharging of the gun in the general direction of the deceased without an intention to harm or kill but in a criminally negligent way.  His Honour thought that deterrence of those who would act in such a dangerous way was an important sentencing factor.

43. The circumstances constituting offences of manslaughter vary greatly from case to case and for that reason sentences imposed can vary from non-custodial sentences in truly exceptional cases up to life imprisonment for the most serious examples.  Some assistance as to the appropriate sentencing range in this case can be gained from the following cases.

44. In R v Whelan,^[2] Whelan shot and killed a pizza delivery man, mistakenly believing that he was someone who was planning to harm him.  He was charged with murder but convicted of manslaughter.  The sentencing judge concluded the deceased had been killed through Whelan's criminal negligence in handling the rifle as he opened the door.  Whelan had been in custody awaiting trial for a little over 10 months.  Prior to the Penalties & Sentences Act 1992, this was considered by the courts to be equivalent to a 20 month sentence already served.  Whelan was sentenced to 10 years imprisonment but taking into account the time already served this was in fact a sentence of 11 years and 8 months.  Although the Court of Criminal Appeal felt that the sentence was quite substantial, it was held to be within the appropriate range.

45. In R v Couch,^[3] Couch had been convicted of manslaughter after being found not guilty of murder.  He was 45 years old with some prior convictions but none for violence.  He intentionally discharged a loaded shotgun when the deceased was four or five feet away from him, knowing the gun was loaded.  He claimed he intended to fire over the head of the deceased.  He had served 13 months in pre-sentence custody.  Again, prior to the Penalties & Sentences Act 1992, the courts considered this equivalent to a 26 month sentence.  The court noted that the deceased had not made any threatening movements towards the applicant during the 10 minute dispute that preceded the shooting.  The court held that the sentence of 10 years imprisonment, which was effectively a sentence of 12 years and 2 months imprisonment, was not manifestly excessive.

46. In Dunkerton's case, the deceased had been acting aggressively and was the first to discharge a firearm, albeit into the air.  It is of concern that the applicant, encouraged by Griffin, responded to this aggressive act, not by retreating and calling police, but by leaving to obtain a loaded weapon and returning to the confrontation.  The learned primary judge was understandably concerned at such behaviour.  In our view, such behaviour, if permitted to occur undeterred, would lead to the breakdown of law, order and civilised society.  For that reason, a deterrent sentence was required in this case in respect of both applicants.  Dunkerton was the principal offender and also had an extensive criminal record, including offences of violence.  He had already caused the death of another person through his dangerous driving whilst intoxicated in 1979.  In these circumstances, although the sentence imposed of 12 years imprisonment was at the top end of the range, it cannot be said to be outside a sound sentencing discretion.

47. We have already adverted to the reasons why a proper distinction was made between the sentences imposed on Dunkerton and Griffin.  Although Griffin had not been sentenced to a term of imprisonment before and his record was not as bad as that of Dunkerton, it was Griffin who told Dunkerton to get the gun.  In all the circumstances, although he was not responsible directly for the death in that he did not pull the trigger, a salutary deterrent sentence is nonetheless called for.  See, for example, R v Barlow,^[4] where Barlow had been involved in a plan to entice another prisoner to the gymnasium to have him assaulted.  Barlow was not physically involved in the assault but was sentenced to a 10 year cumulative sentence on the 13 year sentence he was currently serving.  That 10 year cumulative sentence was found to be within a sound sentencing discretion.  In Griffin's case, because of the factors in his favour, the learned sentencing judge decided not to declare him a serious violent offender under Part 9A of the Penalties & Sentences Act 1992.  The sentence imposed, an effective sentence of 11 years and 8 months with eligibility for parole in September 2002, whilst not lenient, is also within the exercise of a sound sentencing discretion.

48. We would refuse the applications for leave to appeal against sentence in each case. 

49. The orders are that in each case the appeal against conviction is dismissed and the application for leave to appeal against sentence is refused.

REASONS FOR JUDGMENT - DAVIES JA

Judgment delivered 19 March 1999

1. I agree that each of the appellants' appeals against conviction should be dismissed and that each of their applications for leave to appeal against sentence should be refused.  I agree generally with the joint reasons for those orders given by the President and Wilson J.