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R v Brown QCA 136
SUPREME COURT OF QUEENSLAND
R v Brown  QCA 136
CA No 328 of 2005
SC No 21 of 2005
Court of Appeal
Appeal against Conviction
Supreme Court at Rockhampton
28 April 2006
13 April 2006
McPherson JA and Chesterman and Mullins JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED – CONFESSIONS AND ADMISSIONS – particular cases – whether trial judge should have admitted into evidence a record of the appellant’s interview with police – where voir dire conducted concerning admissibility of confessional material contained in a taped record of interview – where appellant alleged on voir dire police threats to co-operate – where trial judge found no such threats made but that police officers had not complied with s 251 of the Police Powers and Responsibilities Act 2000 – where appellant agreed in cross-examination on the voir dire that he knew he had a right not to speak and knew when asked if he wanted one, what a solicitor was
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – other matters – whether a case of “felony murder” under s 302(1)(b) of the Criminal Code should have been left to the jury – where s 302(1)(b) invoked by prosecution as a matter of caution – where trial judge directed the jury on both s 302(1)(b) and s 302(1)(a) – whether sufficient evidence to justify the inference that the deceased’s killer acted with the intention of inflicting death or grievous bodily harm
Police Powers and Responsibilties Act 2000 s 251
Criminal Code 1899 (Qld) s 302(1)(a), s 302(1)(b) and s 349(2)(b)
Swaffield v The Queen (1998) 192 CLR 159, cited
R v D (2003) 139 A Crim R 509, cited
J R Hunter for the appellant
C W Heaton for the respondent
Legal Aid Queensland for the appellant
Director of Public Prosecutions (Qld) for the respondent
- McPHERSON JA: The appellant was tried and convicted of murdering Carmilla George on 25 April 2004. She was found at about 7.00 on the Sunday morning of 18 April lying badly injured and unconscious outside a church at the intersection of William and George Streets in Rockhampton. She died on 25 April in hospital in Brisbane to which she had been transferred for intensive care and treatment. The appellant appeals against his conviction on two grounds: (1) that the trial judge should not have admitted into evidence a record of the appellant’s interview with police that took place on 20 April 2004; and (2) that a case of “felony murder” under s 302(1)(b) of the Criminal Code should not have been left to the jury.
- The trial of the appellant initially began before Dutney J in the Supreme Court at Rockhampton in August 2005. A voir dire was conducted concerning the admissibility of the confessional material contained in the tape recorded interview transcribed in ex 47. On 30 August 2005, his Honour gave his ruling admitting the interview in evidence. Not long after that, counsel for the defence explained that he had received further instructions, with the consequence that he was unable to continue acting for the appellant at the trial. The jury was discharged and the hearing was adjourned. When the trial resumed before his Honour and another jury in November 2005, the appellant did not seek to have the earlier decision admitting the interview reconsidered, but (as he was entitled to do) left it for determination on this appeal.
- The circumstances of the offence as revealed at the trial are as follows. The victim was a 16 year old girl Carmilla George who, along with other members of the family including the appellant, had gathered at Rockhampton to attend the funeral of a relative. Carmilla was the daughter of Mrs Aileen Malcolm, who had lived with the appellant for a time when Carmilla was aged between about 10 to 12 years. On the night of Saturday 17 April she and the appellant attended a party at Grant Street at which there was a good deal of drinking. They left at about 8.30 pm, the appellant saying that his brother Kenny Tranby would come and pick them up. They were seen walking towards Stack Street where Mr Tranby lived, but his car was full at the time and he did not stop. A little while later they arrived at the house, where there was some further drinking. Carmilla said she wished to go home, but the appellant said they would stay at Stack Street for the night. When Mr Tranby woke at about 4.00 am the appellant was asleep in the house, but there was no sign of Carmilla.
- Carmilla was found injured and unconscious near the church at the location referred to. She had been stripped of her clothes which were covered with blood and had been left in a heap beside her. Post mortem examination revealed extensive skull and facial fractures caused by the application of severe force, with underlying brain injury from which her death resulted some days later in Brisbane. She was also found to have grazes or scuffing on the legs, feet and buttocks consistent with her having been dragged on a rough surface. Blood was found on a palm tree or trees in a garden bed nearby. Before she was removed to Brisbane she was observed to have a blood clot within the vagina, and superficial abrasions on the inner thigh. Post mortem, the presence of swelling and bruising was discovered in the left wall of the vagina together with a laceration of up to 1 cm in length, which Dr Olumbe, who conducted the post mortem examination, said would have taken “a lot of force” to inflict.
- On Sunday 18April 2004, the appellant provided a signed statement ex 48. In it he said that Carmilla had left the Stack Street house on her own, and he had not seen her again after he had “passed out” at Stack Street, where he woke in the morning. He did not know what had happened to Carmilla until the police told him that she had been “bashed somewhere in Rockhampton”. The appellant said he knew nothing about it. He had some signs of recent scratches on his face.
- By the time the police interviewed him on Tuesday 20 April they had inspected a series of tapes from video security cameras around the city. These showed the appellant and Carmilla together at the “Jungle Bar” between 11.10 and 11.15 pm on the night of 17 April. They were recorded there later at 12.17 am and shortly afterwards walking together through the city centre. At 12.20 am they were recorded and seen walking past Struthers Nightclub. The appellant was later recorded on security camera between 1.24 am and 1.31 am walking in the city centre. On this occasion he was alone and was wearing a red flannelette shirt which Carmilla can be seen to have had on in the earlier video recordings during that night. Previously he had been wearing a white singlet, which was located near where Carmilla was lying. There was evidence from witnesses living or staying in the vicinity of the church where Carmilla’s body was found that they had heard screaming between 12.25 and 12.30 am.
- In the light of this evidence, the police searched the Stack Street premises and took possession of property there including the appellant’s white shoes which he had been wearing on the night in question. One shoe had a spot of Carmilla’s blood on it. DNA analysis showed that the red flannelette shirt contained blood from both the appellant and Carmilla. The white singlet was also stained with Carmilla’s blood. Some hairs adhering to the white singlet were pooled for analysis producing a biological mixture more likely to have come from Carmilla and the appellant than from anyone else.
- The appellant was taken to the police station at about 1.30 pm on 20 April. He was interviewed by two police officers beginning at 7.11 pm until 7.58 pm on that day. In the course of the interview he now admitted walking with Carmilla in the city on the evening in question. He said an argument started between them about her habit of paint sniffing, which is a topic that was mentioned in his earlier statement ex 48. He said she had used an insulting epithet to him. He then struck her with his closed fist three or four times on the chin. She doubled up and fell on the bitumen road. He left her there and went back to Mr Tranby’s house at Stack Street. Each member of the Court has viewed the video recording of the interview.
- On the voir dire at the trial in August 2005, the appellant gave evidence that, while he was in the cell at the police watch house awaiting interview, a police officer appeared and threatened him if he did not co-operate in the interview. This frightened him and made him tell a lie in the interview about his having struck Carmilla on the chin with his fist. The Crown called evidence from the three police officers on duty at the watch house at the time, who testified about the security system regulating access to the cells, and that no one answering the appellant’s description of the police officer who was alleged to have threatened him there had been allowed into the cells. His Honour found on the balance of probabilities that no threat had been made to the appellant as he claimed.
- His Honour concluded, however, that the two police officers who conducted the interview between 7.11 pm and 7.58 pm had not complied with the provisions of s 251 of the Police Powers and Responsibilities Act 2000. The appellant was born at Woorabinda of mixed Sri Lankan and Aboriginal ancestry. He therefore satisfied s 251 of the Act regulating police questioning of aboriginal people. Section 251(3) provides that s 251(2) does not apply if, having regard to the person’s level of education and understanding, the police officer “reasonably suspects the person is not at a disadvantage in comparison with other members of the Australian community generally”.
- His Honour concluded that the interviewing police officer “had no understanding of what she was required to do” under s 251 of the Act. It is a fair summation of his findings that his Honour was not satisfied that the statutory provisions had been properly complied with and, to that extent, the statement in the interview and ex 48 had been unlawfully obtained. The police could readily have secured the attendance of someone to advise the appellant at the interview. He went on to say that it did not appear that there had been any deliberate unlawful conduct by the interviewing police but rather a misunderstanding of the obligations imposed by the statutory provision. This finding was challenged on appeal, but I consider it was reasonably open to his Honour to form that conclusion and to act on it.
- This led his Honour to consider whether in the exercise of his discretion the record of interview should be excluded as a matter of fairness, applying Swaffield v The Queen (1998) 192 CLR 159. He admitted it because, having seen the appellant as well as the police officers under cross-examination in the course of the voir dire, he was satisfied that the appellant was capable of acting in what appeared to be his perceptions of his best interest in answering questions by somebody apparently in authority. There was therefore “not the degree of unfairness inherent in reliance on the statement that there would have been with a person who had no such talent”. Consequently, and having regard to the high public interest in all relevant evidence being given in a matter as serious as this, the discretion should be exercised by admitting the statement. It was not contended that his Honour did not possess a discretion to admit it, but rather that he had exercised it wrongly.
- It is not in my opinion possible to fault his Honour’s exercise of discretion. Having viewed the tape recorded interview and compared it with the appellant’s performance in giving evidence under cross-examination, I agree with his Honour’s assessment of the appellant’s ability to look after himself under questioning. He was aged 47 years at the time and was educated to grade 8 at a State school. He can read and write, and has had experience of police questioning in the past. He agreed in cross-examination on the voir dire that he knew he had the right not to speak and that he knew, when asked if he wanted one, what a solicitor was. His principal complaint was that it was useless talking to the police because a woman “just got to squeal or tell the police … and we get automatically charged with assault”. There is no indication in what the appellant said in court of the tendency to gratuitous concurrence of which Atkinson J spoke in R v D (2003) 139 A Crim R 509-512.
- There is reason for concluding that the appellant’s admission of having struck Carmilla with his fist was reliable. Dr Olumbe found many signs of injury to her face. Contrary to the appellant’s statement ex 48 given on Sunday 18 April, it is quite clear from the security videos that he was in the company of Carmilla before she was injured early in the morning of that day. His claim in the course of his evidence on the voir dire that in his interview on Tuesday 20 April he had told a lie about hitting her has all the appearance of a later invention contrived to avoid the incriminating implications of his admission to that effect. Above all, his action in having worn her red flannelette shirt that night is consistent only with his having stripped her and taken her shirt. It was stained with her and his blood, and her blood was also found on his white shoe seized by police in the course of the search at Stack Street. It is inconceivable in all the circumstances that someone else had carried out the fatal assault. I would not disturb his Honour’s decision to admit the taped interview transcribed in ex 48, the more so as the principal beneficiary of the admission it contained was, in the end, the appellant himself. The prosecution case that the appellant caused Carmilla’s injuries would have remained as strong, if not stronger, without it.
- Turning to the issue under s 302(1)(b) of the Code, that provision constitutes the offence of murder if the death is caused “by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life”. Naturally, his Honour also directed the jury on the more orthodox provision in s 302(1)(a), which makes it murder to kill with the intention of causing death or grievous bodily harm to the victim. Section 302(1)(b) seems to have been invoked in this case by the prosecution as a matter of excessive caution because of a concern that the appellant might have been too drunk to have had the necessary intention. His Honour directed the jury on that issue, which was an element of the offence under s 302(1)(a) but not (b). From the force used to inflict the head injuries, there was ample evidence to justify the inference that Carmilla’s killer acted with the intention of inflicting death or grievous bodily harm on Carmilla. Dr Olumbe favoured the view that the fatal head injuries were probably inflicted by forcibly banging her head on a hard surface perhaps while holding her head by the hair.
- There is, however, no way of knowing on which of the two bases in para (a) or (b) of s 302(1) the jury acted in reaching their verdict of guilty of murder. Relying on the evidence that she had been left naked, with her clothes placed nearby and covered in blood, the Crown suggested that Carmilla’s head had been struck before her clothes were removed in order to facilitate a rape committed on her. Even if the injuries to her vagina and thighs were caused by the insertion of something other than a penis, it would still have constituted rape as now defined in s 349(2)(b) of the Code. It was plainly non-consensual. Whether it was done before or after she was struck on the head and face, she was still alive when she was raped in either way, because she died only some days later on 25 April. She might have been injured first preparatory to the act of denigrating her by stripping her clothes and inserting an object forcefully into her vagina. There was evidence fit for the jury to consider in reaching a conclusion either way about the sequence of events.
- His Honour directed the jury that, before they could find a verdict under s 302(1)(b), they would have to be satisfied that the only reasonable inference open on the evidence was that the fatal beating preceded the sexual assault. Otherwise the prosecution would have “failed to satisfy you beyond a reasonable doubt that the act which caused [Carmilla’s] death (the savage beating) was an act done in the prosecution or in furtherance of the unlawful purpose of having non-consensual sex with her”. In that event, the jury would, he said, be obliged to find the appellant not guilty of murder on the second basis; that is, the basis of felony murder.
- There is no reason to suppose that the jury ignored this direction from his Honour. If they were left in doubt about the possible sequence of events, it must follow from their verdict of guilty that they were satisfied beyond doubt not only that the appellant inflicted the fatal injuries on Carmilla, but that he did so with the intention of killing or doing grievous bodily harm as required for murder under s 302(1)(a) of the Code. It warranted the verdict returned against him.
- I would dismiss the appeal against conviction.
- CHESTERMAN J: I agree with McPherson JA.
- MULLINS J: I agree with the reasons of his Honour Mr Justice McPherson and that the appeal should be dismissed.
- Published Case Name:
R v Brown
- Shortened Case Name:
R v Brown
 QCA 136
McPherson JA, Chesterman J, Mullins J
28 Apr 2006