SUPREME COURT OF QUEENSLAND

[1]  McMURDO P:  I would dismiss this appeal against conviction and refuse the application for leave to appeal against sentence.  These are my reasons.

[2] The appellant, John Allan Black, appeals against his conviction for unlawfully killing John Edward Bowman on 3 February 2003.  He claims that the judge erred in the directions he gave to the jury on evidence which Black's counsel now refer to as "flight evidence".[1]  In summary, this "flight evidence" was that, after Bowman was killed, Black dressed to conceal his identity, shut the blinds at his aunt's home and hid himself under the bed when the police arrived.

[3] It was common ground at trial that Black used illegal drugs and associated with other illegal drug users, some of whom dealt in those drugs and were violent.  As Black's appellate counsel now contend, there were many possible reasons for the "flight evidence" other than Black's guilty knowledge of killing Bowman.  For example, he may have been worried about rough treatment from his criminal associates or about being apprehended by police for his drug offending.  It is even possible that he behaved erratically as a result of his methylamphetamine abuse. 

[4] The "flight evidence" was admitted at trial without objection from Black.  Through his trial counsel, Black formally admitted that "On Friday the 7th day of February 2003[2] [police officer Stokes] attended 12 Elizabeth Street in Mount Isa and [Black] was arrested under a bed in a bedroom in the premises".[3]  The judge was not asked to exclude the evidence on any basis.  Even now, Black's appellate counsel do not contend that, in these circumstances, the judge should have excluded the evidence.

[5] They correctly point out that the prosecutor in his final address invited the jury to conclude from this "flight evidence" that Black did not want to be seen or recognised and that he hid under the bed because he had killed Bowman a few days earlier.  Keane JA's summary of the evidence at trial demonstrates the compelling nature of the case against Black.[4]  It is a little surprising, in light of that strong and uncontradicted prosecution evidence and the many reasons Black may have had to hide other than because he killed Bowman, that the prosecutor troubled the jury with that submission.

[6] The evidence having been formally admitted by Black at trial and addressed by the prosecutor in this way, meant that the judge was required to direct the jury on the evidence.[5]  Otherwise, there would have been a real danger that the jury might place undue and improper weight on it.  The judge was not asked to direct the jury to ignore the evidence or to place no weight on it. 

[7] In my view, the evidence, though of limited weight, was admissible circumstantial evidence capable of supporting the prosecution case.  It was properly a jury question whether they accepted the prosecution contention that the evidence unequivocally demonstrated a consciousness of guilt on Black's part as to killing Bowman a few days earlier.  It was certainly not, however, a major point in the prosecution case.  His Honour quite properly suggested to the jury that the "flight evidence" was not significant.  This is an important difference from the position pertaining in Edwards v The Queen[6] where the evidence of lies was of real significance in the prosecution case and was relied on by the prosecution as corroboration.  Further, the judge in the present case told the jury that if there was an inference to be reasonably drawn from the evidence other than that Black was hiding because he knew he had killed Bowman, then the jury should draw the inference favourable to Black. 

[8] In the unusual circumstances of this case, where the defence did not object to and formally admitted parts of the "flight evidence" and did not ask for a redirection, the judge's directions to the jury were both appropriate and fair. 

[9] If I am wrong and the judge's directions were flawed, or if the judge should have directed the jury not to draw any inference adverse to Black from the evidence, I would dismiss the appeal because no substantial miscarriage of justice has actually occurred:  s 668E(1A) Criminal Code 1899 (Qld).  The jury verdict acquitting him of Bowman's murder was compassionate in light of the strong prosecution case,[7] but this was understandable.  As the primary judge observed in sentencing Black, Bowman:

"was a man of a very violent character; that he had used violence against many people; that he was a drug addict who was very unpredictable and volatile in his behaviour; at … times he was aggressive towards [Black] and others.

This night … he acted aggressively, having threatened [Black] with a gun earlier in the night."

[10]  Black did not give or call any competing evidence.  After reviewing all the evidence to gainsay the compelling prosecution case, I am satisfied that a reasonable jury, properly instructed as to the applicable law, would inevitably have convicted Black of manslaughter:  Weiss v R.[8]  The appeal against conviction should be dismissed. 

[11]  The contentions of Black's counsel as to the sentence application are as follows.  The judge was uncertain whether the jury verdict was based either on an absence of intention to kill or do grievous bodily harm because of Black's voluntary ingestion of methylamphetamine, or on the killing being intentional but provoked.  It is a less serious offence to unlawfully kill without an intention to do so than it is to intentionally kill under provocation.  The judge should have sentenced Black on the former basis.  They submit that the level of criminality attaching to manslaughter on the former basis warrants a sentence in the range of nine to ten years imprisonment.  A sentence of 12 years imprisonment is manifestly excessive. 

[12]  The contention made on behalf of Black at sentence was that it probably did not matter in determining the sentence whether the verdict was based on an absence of intention or on provocation.

[13]  Black was 27 at the time of the killing and 33 at sentence.  He was at liberty for about two years and four months during the more than six years between the time of the offence and his trial.  This was because the prosecution had, for a time, dropped the murder charge against him.  The judge accepted that consequently Black had suffered a good deal of uncertainty as to his situation during this period.  Black had a significant criminal history for street offences, property offences and drug offences.  In 1993 he was placed on 12 months probation for assault occasioning bodily harm.  On 13 July 2007 he was sentenced to a short term of imprisonment for a property offence, which was committed before he killed Bowman. 

[14]  Whilst Black was still a relatively young man when he killed Bowman so that rehabilitation remained a prospect, he had been an adult in the eyes of the Queensland criminal justice system for 10 years.  Nor was he a first offender.  He had been given numerous past opportunities through community based orders to reform his ways.  He did not take up those opportunities.  He did not have the mitigating benefit of remorse or a plea of guilty.  He had a history of drug abuse and was substantially affected by methylamphetamine when he killed Bowman.  On either view of the facts, in taking Bowman's life by discharging a shotgun into his chest at close range Black committed a grave offence.  The discharge of the shotgun was a deliberate act, even if done without intention to kill or do grievous bodily harm.  This was not a case of manslaughter through criminal negligence. 

[15]  Black's sentence of 12 years imprisonment imposed after a trial is supported by broadly comparable cases.  In R v Harris,[9] Harris pleaded guilty to manslaughter before his trial for murder on which he was acquitted.  He was given a cumulative sentence of 10 years imprisonment.  In R v DeSalvo,[10] McPherson JA (Williams JA agreeing) referred to the range in manslaughter cases of some similarity to this as between 10 to 12 years.  Black's sentence of 12 years imprisonment for unlawfully killing Bowman, imposed after a trial, was not manifestly excessive in view of the circumstances of the offending and his antecedents.  Nor was it determined on an erroneous basis. 

[16]  The application for leave to appeal against sentence should be refused.  I agree with the orders proposed by Keane JA.

[17]  KEANE JA:  On 2 March 2009 the appellant was convicted upon the verdict of a jury of manslaughter.  He was found not guilty of murder.

[18]  The appellant was sentenced to 12 years imprisonment and was declared to have been convicted of a serious violent offence.  A total period of 1,032 days pre-sentence custody was declared to be time served under the sentence.

[19]  The appellant appeals against the conviction.  Initially, he raised a number of grounds in his notice of appeal, but in the event only one ground was pressed on the hearing of the appeal.  The appellant also seeks leave to appeal against his sentence on the ground that it "was manifestly excessive in all the circumstances".

[20]  It is convenient to begin by summarising the evidence adduced at trial.

The case at trial

[21]  The charge against the appellant was that on 3 February 2003, at Mount Isa, he murdered John Edward Bowman ("the deceased").

[22]  The Crown's case against the appellant was that he discharged a shotgun into the chest of the deceased from close range with death being almost instantaneous as a result of major lacerations to the heart and thoracic aorta.  The defence did not admit that the appellant fired the fatal shot.  The defence also raised the contentions that the appellant was either provoked to shoot the deceased or was acting in self-defence or was so affected by the consumption of illicit drugs that he did not have the intention to kill the deceased or to cause him grievous bodily harm.

[23]  The body of the deceased was found at about 7.15 am on 3 February 2003 on a driveway at the entrance to fenced premises at No 8 Traders Way at Mount Isa.  The arms and legs of the corpse were spreadeagled.  The evidence was that the house was used as a base from which Russell Johnson engaged in the business of dealing in illicit drugs.  The police who searched the residence at No 8 Traders Way found signs of drug use and drug dealing and a number of weapons.

[24]  There was evidence from a number of the Crown witnesses that the deceased was a violent man of volatile temper.  In particular, Lee Caulton gave evidence that a few weeks prior to the death of the deceased, the deceased and Johnson had engaged in a confrontation at Johnson's house.  In that confrontation, Johnson threatened the deceased with a cross-bow, but the deceased, armed with a meat hook, charged at Johnson.  Johnson then retreated into his house.

[25]  Melinda Donovan said that some weeks before the death of the deceased, she saw the appellant produce parts of a gun from a back pack and assemble the weapon.  He told her he was going to use it "[o]n people like Bowman and Gavin Tunny if they kept causing trouble".

[26]  Gavin Tunny gave evidence that on the night on which the offence occurred, the deceased and the appellant fell into an argument in the street not far from the home of the deceased.  The deceased threatened to shoot the appellant with a gun which the deceased had in his pants.

[27]  Kevin Russell gave evidence that during the night on which the deceased was killed, the appellant called at his home and asked him to give the appellant a lift to the home of Mihay Toth where the appellant was living at the time.  The appellant there obtained something (the Crown contended it was a gun) and the appellant then had Kevin Russell drive him to Russell Johnson's house at Traders Way. 

[28]  Kevin Russell gave evidence that he saw the appellant walking towards Johnson's house before he, Russell, drove off.  Some hours later the appellant returned to Mr Russell's house, and asked Mr Russell to drive him to his, the appellant's, sister's home.  Mr Russell said that during the drive the appellant seemed out of breath and anxious and said that he had done something bad and had "shot someone".

[29]  Some days after the killing, the appellant told his aunt, Colleen Sutton, that he had been threatened by the deceased.  He also told her that he did shoot the deceased.  She said that he told her that Tunny had been present but had been in hiding. 

[30]  Mrs Sutton's husband gave evidence that when the appellant arrived at the Sutton's house, he shut the blinds or curtains of the kitchen window facing the street.  He told Mr Sutton that the police were trying to pin the shooting on him and that he was concerned about being framed by them.

[31]  The appellant also told Beau Barber, who was then in a relationship with Mrs Sutton's daughter, that he was sick of the deceased tipping people off, stealing drugs and standing over people.  The appellant told Mr Barber that he had shot the deceased who "died like a spastic".

[32]  At trial there was a formal admission by the appellant that on 7 February 2003, police attended at house at 12 Elizabeth Street, Mount Isa, where the appellant was arrested under a bed in a bedroom.

[33]  The appellant did not give or call evidence.

The appellant's arguments

[34]  On the hearing of the appeal, the only ground on which the appellant challenged his conviction was that the learned trial judge failed to direct the jury adequately on the evidence of flight.

[35]  The appellant's submission is that the evidence of the appellant closing the blinds on his arrival at the Sutton house and of his being found under the bed at the Elizabeth Street house was incapable of sustaining the inference of a consciousness of guilt which the prosecution invited the jury to draw.  It is argued that "the state of the so-called flight evidence by the close of evidence was so bereft of surrounding factual detail that no sensible conclusion could be drawn from it, let alone a conclusion that it evidenced a consciousness of guilt of the offence."  Accordingly, the learned trial judge should not have directed the jury that they might infer a consciousness of guilt from that evidence.  Alternatively, it is said that, although this evidence had no legitimate probative value, its potential to prejudice the jury against the appellant was such as to call for a clear direction from the learned trial judge that they should not draw any inference adverse to the appellant from that evidence.[11]

[36]  The direction which the learned trial judge gave on this topic was in the following terms:

"There was some evidence about the accused's actions in the days following the death and in particular it is said that when he went to Mr Sutton's place a few days later, and you'll recall found under the bed, and the evidence about him closing the blinds, this is evidence of an attempt to conceal himself and it is said that the proper inference to draw from that was that he did so because he was guilty of the offence.

That's a matter for you. I told you about the inferences you can draw from circumstantial evidence and that if there is more than one inference open and any inference is consistent with innocence you must draw that inference consistent with innocence. There may be any number of reasons. You'll recall his statement that he was frightened that the police who were after him might be trying to frame him and that in any case if he was involved in the death he might want to avoid the police finding him even if he acted lawfully, let us say in self-defence or something like that.

On its own it, of course, is no evidence of guilt and you should only draw any adverse inference against him if you were satisfied there was no other explanation for him acting as he did apart from his knowledge that he was guilty of the offence. It isn't really, you might think, particularly significant evidence when you look at the position overall here but that's a matter for you."

[37]  It is also argued on the appellant's behalf that this direction was erroneous because it did not allow the jury to consider whether they should accept that the evidence in question was truly "evidence of an attempt to conceal himself", bearing in mind the possibility that the appellant's conduct was motivated by reasons other than a desire to avoid detection by the police.  It was argued that no inference adverse to the appellant could be drawn unless the jury were first satisfied that the appellant's conduct was not motivated by some purpose other than avoiding detection by the police. 

Discussion

[38]  The verdict of the jury showed that they had reached a conclusion on the evidence which was distinctly favourable to the accused in that the jury did not conclude that the killing had been intentional or unprovoked.  These are the only rational bases on which the jury could have acquitted the appellant of murder.  Accordingly, it cannot be said that the inference of consciousness of guilt was used to support a verdict which involved an intention to kill or to cause grievous bodily harm.  It is not even arguable that the jury wrongly used the inference of consciousness of guilt as proof of an intention to kill or to cause grievous bodily harm. 

[39]  It is difficult to see how the jury could have been materially influenced to find the appellant guilty of manslaughter by the evidence in question.  It is difficult to imagine that the jury might have taken a materially more adverse view of the appellant, who had admitted shooting the deceased to a number of witnesses, and who told one of those witnesses that the deceased had "died like a spastic", because he had been found by police hiding under a bed.[12]  Nevertheless, the evidence in question had been admitted without objection, and was capable of suggesting that the appellant was a man who did not wish to be apprehended by the police.  A conclusion as to whether that was so and as to the reasons which might inform that attitude were matters of fact for the jury.  It was important, however, that the relevance of this evidence to the jury's deliberations not be exaggerated.  It would have been quite wrong for the learned trial judge to have given no direction as to the use which might properly be made of this evidence having regard to the fact that the furtive conduct of the appellant was capable of supporting an inference of consciousness of guilt.  In this regard, the appellant had the benefit of the learned trial judge's direction and his Honour's comment that "[i]t isn't really … particularly significant evidence when you look at the position overall here …".

[40]  As to the appellant's point that it was not open to the jury to conclude that the appellant was seeking to avoid detection by police, the evidence that the appellant was concerned to avoid detection by the police was compelling:  he said as much to Mr Sutton.  The fact that his statement was accompanied by the assertion – for which there was no evidence – that he believed the police were trying to frame him does not detract from the strength of his own statement that his furtive behaviour was explicable by his concern to avoid detection by the police.  Further, it is to be noted that, on the evidence, there was no competing inference which might explain his plainly furtive behaviour.  There was, for example, no suggestion that the appellant was seeking to avoid vengeance at the hands of the friends of the deceased.  There was no evidence that the appellant ever suggested that he was concerned by such a prospect to the Suttons or to Mr Barber or, for that matter, to anyone else.

[41]  I would reject the contention advanced in support of the appeal against conviction.

Sentence

[42]  The appellant was sentenced on the basis that he was adversely affected at the time of the killing by the consumption of methylamphetamines.

[43]  The appellant was 27 years old at the time of the offence.  He has a lengthy criminal history, which commenced when he was 17 years old.  This history consists principally of minor drug offences and street offences.  His history did not include any offences of personal violence save for one offence of assault occasioning bodily harm in 1993.

[44]  It is also to be noted that at the hearing in relation to sentence, the appellant's counsel submitted to the learned sentencing judge that a sentence in the range between 10 and 12 years imprisonment was appropriate.  It was not suggested to his Honour that there would be any material difference in the sentence to be imposed on the appellant if the conviction for manslaughter, rather than murder, was explicable on the basis that the jury entertained a doubt as to the appellant's intent to kill or to cause grievous bodily harm as opposed to provocation.  Nevertheless, it is now said that his Honour erred in failing explicitly to proceed on the basis that the appellant had not acted with the intention necessary for murder.

[45]  The learned sentencing judge recognised that the jury's verdict could have reflected the view that the appellant had indeed intended to kill the deceased but that they were unable to exclude the possibility that he had been provoked to do so.  It may be noted, however, that his Honour said:  "I [cannot] see provocation as … being the likely basis of the verdict"; and it is, I think, tolerably clear that his Honour did not proceed to sentence the appellant on the basis that the appellant had intended to kill the deceased or to cause him grievous bodily harm.  The most likely explanation of the jury's verdict is that they were prepared to entertain a doubt as to whether the appellant intended to kill the deceased or to cause him grievous bodily harm, that doubt arising because of the appellant's consumption of methylamphetamines.

[46]  The absence of an intention to kill or cause grievous bodily harm because of the consumption of methylamphetamines would mean that, although the appellant had to be acquitted of murder, the sentencing judge was entitled to take into account the origins of the crime in the lawless background inhabited by the appellant.  His Honour found that there was no "reason to doubt here there was a deliberate pulling of the trigger" even though there was no intention to kill or to cause grievous bodily harm.

[47]  Accordingly, the appellant fell to be sentenced for an unlawful killing which resulted from a deliberate act on his part.  In R v DeSalvo[13] where the offender had offered to plead guilty to manslaughter before a trial, it was said that a range of 10 to 12 years imprisonment was the appropriate range of sentences in a case where the unlawful killing results from a deliberate act on the part of the offender.

[48]  The offence of present concern had even stronger characteristics of a gangland slaying than were present in R v DeSalvo.  For this reason alone, a sentence at the higher end of the range suggested in R v DeSalvo was to be expected.

Conclusion and orders

[49]  Neither the ground of appeal against conviction which was argued, nor the basis for the application for leave to appeal against sentence, has been established.

[50]  The appeal against the conviction should be dismissed.

[51]  The application for leave to appeal against sentence should be refused.

[52]  JONES J:  I have read the reasons prepared by Keane JA.  I respectfully agree with those reasons and the orders proposed.