R v Pablo[2021] QCA 41

SUPREME COURT OF QUEENSLAND

1. [1]
   FRASER JA:  I agree with the reasons for judgment of McMurdo JA and the order proposed by his Honour.
2. [2]
   McMURDO JA:  On 10 June 2010, the applicant was convicted of the murder of his 17 year old daughter.  He was sentenced to the mandatory term of life imprisonment, with eligibility for parole after 15 years.  Approximately 21 months of pre-sentence custody was declared as time served.
3. [3]
   He did not challenge his conviction within the time allowed for an appeal.  It was not until 2020 that he did so, when he filed this application for an extension of time in which to appeal.  His delay is unexplained.  However, as the respondent accepts, an application to extend time to appeal may be granted if a refusal to do so could result in a miscarriage of justice.^[1]
4. [4]
   His trial, which was conducted by Douglas J with a jury in Cairns, took two days.  The evidence in the prosecution case was largely uncontested.  The applicant did not give or call evidence.  There was no question that the applicant killed his daughter in the house where they lived in Cairns.  She died with more than 20 stab wounds to her body, and with fractures to the left and right sides of her jaw.  Those injuries were inflicted by the applicant after they had argued.  There was no suggestion of self-defence, and the applicant’s counsel conceded that no case of provocation, by which the offence of murder would be reduced to manslaughter, was raised by the evidence.  The defence case was that the jury should have a reasonable doubt as to whether the applicant intended to cause death or grievous bodily harm.

The evidence at the trial

5. [5]
   The prosecution called evidence from one of the applicant’s step-daughters (whom I will call S), the deceased’s mother (and partner of the applicant), investigating police officers and a pathologist, Dr Botterill.  The applicant was interviewed by police, and a recording of that interview was played to the jury.
6. [6]
   S gave evidence that on that day, she had watched a football game in which the deceased played.  She and the deceased then went home, intending to go out on that evening to attend a “shaving party” at the football club.  After they arrived home, the deceased’s mother had left the house, at around 6.30 pm.  The only persons in the house from then on were S, the deceased and the applicant.
7. [7]
   S said that she was having a shower in the bathroom, when she heard a number of banging noises and the sound of the deceased screaming.  She heard the applicant say “Sorry Mariza [the deceased], sorry Mariza”.  S left the shower, but found that she could not open the bathroom door.  At that point, she smelt petrol.  After some time, she managed to break some of the bathroom door, sufficiently to allow her to get out of the room.  She then saw that what was holding the door was a rope, tied around the bathroom door handle and another door handle.  She did not see the applicant.
8. [8]
   At the same time she discovered the deceased, lying in the hallway.  S ran out of the house and saw her mother walking nearby.  She called out to her mother but did not return to the house.
9. [9]
   The deceased’s mother gave evidence that she knew that the deceased and S were intending to go to out that evening.  The mother returned home at around 8.30 pm, when S ran out of the house to her.  The mother went inside the house and saw the deceased lying in the hallway.  There were clothes on top of her and petrol had been spread where and near she was lying.  The mother said that she panicked, and picked up the knife which was beside her daughter’s body and took it to a rubbish bin at the front of the house.  She then called an ambulance.
10. [10]
    Dr Botterill gave evidence of the injuries to the deceased.  In addition to the knife wounds and the fractures, there was some damage to the body from petrol.  The deceased was taken by ambulance to a hospital, where she was pronounced dead upon arrival.
11. [11]
    When police arrived at the house, they found a large knife on a table in the hallway.  They noted that the bathroom door and a nearby door had been tied together with rope, preventing either door from being opened.  There was then no one in the house, as the deceased was already in the back of the ambulance.
12. [12]
    Soon after, at around 10 pm that night, the applicant voluntarily went to the Cairns police station, and said that he had just stabbed his daughter.  He had blood stains on his clothes, and said that this was his daughter’s blood.  Shortly afterwards, he was interviewed by two police officers and it was the recording of that interview, which took less than 30 minutes, which was played to the jury.
13. [13]
    The applicant was asked why he had come to the police station, and answered “because I don’t want to get chased around”.  He was asked what he had told the police officer at the front counter of the station a little earlier and answered “I just told them I just stabbed my daughter”.
14. [14]
    He was then asked what had happened on that day.  He described an argument with his daughter and “my other niece”, which was an apparent reference not to S but to another step-daughter, A.  The applicant had made clear his disapproval of his daughter going out at night, and told police that he had said to his daughter that she was to stay home and clean the house.
15. [15]
    He described what happened once S went to the bathroom for a shower.  In these passages, the applicant referred to his daughter as “he” and “him” rather than “she” and “her”, but his references to his daughter were unambiguous.  He told police:

“And then the other niece went in the shower I ask my daughter like living with someone? He keep on going “no, no”, but the one who told me is the bigger one, so then one of the boys he been make black magic, like ah potions, something like that. And my daughter was staying out every time when we go to sleep he just took off, took off.

Him and [A]. That's when I told them like “don't walk around youse have to stay at home and do something”. Like don't let me do it, because their mother work, I have to look after them and they just, music, everything make noise, wouldn't listen what I tried to told them to do something they just rattle the place up and their mother told them to clean up, they wouldn't listen. No want to do nothing, they just want to walk around. Then I told my daughter again I start to stress out I throwed a punch and I told her if you would have listened in the first place none of this wouldn't happen. Because I punch him in the first place when he was thirteen or fourteen I think but he do the same thing …

I start to get stress out, every time they when I ask them to, you know you have to do things at home before your parents came, nice and clean, but when their parents come they just ask them they go out, out, out. Because of that they fall in love at school and, that's when I asked them “don't do silly things you have to finish your school and all that and you keep want to run away, run away, because one of them boys make that black magic bottle.”… .”

16. [16]
    One of the officers then asked the applicant “what happened tonight?”, to which the applicant responded:

“I locked [S] in the shower then I asked my daughter “how come you keep want to go Woree” … anyway I just ask him and he keep on, and that's the problem too, he always want to talk back”.

17. [17]
    The applicant was asked “what happened when [S] went to the shower,” and he answered:

“I just locked the door and keep asking my daughter, he keep on talk back, talk back, I start to get cranky I say "can't you listen or find something else to instead of walking around going boys and" he keep on, I just go and grab a knife and just stab him.”

18. [18]
    The applicant told police that he obtained the knife from the kitchen, and that he stabbed his daughter in the chest although he did not say how many times.  He was asked whether S did anything at this time, and said that:

“[S] keep on opening the door, but the door keep jam.”

19. [19]
    The applicant was asked whether he had locked the door, and he responded that he had.
20. [20]
    He was asked why he had locked S in the bathroom and answered:

“cause I didn't want [S] to see what I gonna do.  All day they wouldn't listen, none of this wouldn't happen.”

21. [21]
    He was asked “you didn’t want [S] to see what you were going to do?  So did you know you were going stab Mariza?”  The applicant replied:

“No, like I keep on asking like why you want to keep on walking, he keep on talk back, talk back, talk back. That's when I start to get angry.”

22. [22]
    He was asked whether he had poured petrol around the house.  He said that he had done so, and that “I start to go off and I just want to burn my daughter and myself.”  He told police that he obtained the petrol from a store room.  He was asked what he did with the petrol and answered “I just poured all over my daughter”.  He said he also poured it in areas of the house.
23. [23]
    He was asked again why he had tied the rope around the bathroom door handle, and answered that “I don’t want [S] to see what I want to do.”
24. [24]
    At one point, he said that he had tried to light a fire, but did not do so “cause I don’t want to burn that house”.  He added that he was thinking of S and that S and one of her siblings had behaved properly because “they listened, they stay at home.”
25. [25]
    He was asked what he meant to do when he stabbed his daughter, and answered “I just stabbed her, cause um no more night might be crook, you don’t want to talk to me, keep on answer back, and want run away like that”, and because she had gone out on an earlier occasion.  He was asked again “what did you mean to happen tonight?” and answered:

“Like I didn't want to stab her I just wanna ask him a couple of questions but he keep on wanna run away. I said “why you have to run away you and [A], why don't we all stay at home doing the cleaning up?” … .”

The applicant’s arguments

26. [26]
    The applicant is without legal representation.  Evidently, he has been assisted in the written presentation of his case,^[2] although, not by a lawyer.
27. [27]
    His principal submission is that a partial defence of provocation under s 304 of the Criminal Code (Qld) should have been left to the jury.  At the trial, there was a discussion between the judge and the applicant’s counsel as to whether provocation was raised on the evidence.  His counsel told the judge that he was unable to contend that provocation was raised.  He said that the closest that the evidence came to identifying any provocative conduct was the applicant’s statement to police which I have set out above at [15].
28. [28]
    This event occurred in 2008, at which time s 304 provided as follows:^[3]

“304 Killing on provocation

When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation, and before there is time for the person’s passion to cool, the person is guilty of manslaughter only.”

29. [29]
    In Pollock v The Queen,^[4] the High Court said of the expression “sudden provocation” in s 304 that it took its meaning from the common law, and that it required “that the provocation both involve[d] conduct of the deceased and [had] the capacity to provoke an ordinary person (to form the intention to kill or to do grievous bodily harm and to act in the way the accused acted), although neither requirement is stated in terms.”^[5]
30. [30]
    Under the then terms of s 304, the onus was upon the prosecution to negative the partial defence.  If the evidence raised the defence, there would have been three questions of fact for consideration by a jury.  Those questions being: was there some provocative conduct by the person who was killed, was the defendant actually provoked and was the defendant still provoked when doing that which caused the death.
31. [31]
    The question for the trial judge was whether there was some evidence which might have induced a reasonable doubt as to whether the prosecution had negatived the availability of the defence.^[6]  That question was to be determined upon the version of events most favourable to the defendant which was open on the evidence.^[7]  Even under the terms of s 304 which then applied, a provocation by mere words could not provide the defence, except “in circumstances of a most extreme and exceptional character”.^[8]
32. [32]
    The question of whether the deceased’s conduct was provocative required an objective assessment of the content and gravity of the conduct of the deceased.  While personal characteristics or attributes of the particular accused person might be taken into account for the purpose of understanding the implications and assessing the gravity of a wrongful act or insult, the ultimate question was as to the possible effect of that act or insult, so understood and assessed, upon the power of self-control of an ordinary person.^[9]
33. [33]
    The evidence raised a possibility that the applicant had lost his self-control, and at the time that he killed his daughter.  However the defence was not raised in this case, because the deceased’s conduct, as the applicant related, was not of a kind which could have caused an ordinary person to lose self-control.  On one view, the provocative conduct was constituted by words alone.  Assuming, however, that it also included the deceased’s previous conduct, in going out against her father’s will, what followed could not have come from the hypothetical ordinary person.  The trial judge was correct in deciding that the defence of provocation was not raised on the evidence.
34. [34]
    Another ground apparently raised by the applicant is that there was a miscarriage of justice, because, it is said, the trial judge did not direct the jury of the availability of an alternative count of manslaughter.  In fact, the trial judge did direct the jury that if they had a doubt about whether the applicant intended to kill or do grievous bodily harm, he would be guilty of manslaughter only.
35. [35]
    In the applicant’s written argument, it is said that the applicant should not have been found guilty of murder, rather than manslaughter, because of his background and the absence of any history of violence.  This reveals no arguable ground of appeal.
36. [36]
    At one point in the applicant’s written argument, reference is made to the need for this Court to consider “Unreasonable Verdicts and Wrong Facts”.^[10]  Again, this seems to be a reference to his argument about provocation, because of references there to s 304.  However, if it is the applicant’s intention to advance a broader argument, that it was not open to the jury to convict him of murder because the jury could not have been satisfied that he held the requisite intent, that ground could not be accepted.  In his interview with police, he did not specifically admit that he held that intent.  However, having regard to the very extensive injuries to the deceased, which he inflicted only after tying rope around door handles to keep S from intervening, it was open to the jury to be satisfied that he at least intended to do grievous bodily harm.
37. [37]
    At another point in his written submissions, he refers to the common law defence of automatism.  Treating that as a reference to s 23(1)(a) of the Criminal Code, it reveals no arguable ground of appeal.
38. [38]
    No further discussion of other parts of his submissions is necessary.  They indicate that some assistance was provided to the applicant by someone who knew about certain cases,^[11] but with no understanding of their irrelevance to the applicant’s case.

Conclusion

39. [39]
    In summary, the applicant has failed to demonstrate any arguable ground of appeal.  An extension of time within which to appeal against his conviction would be futile.  I would order that the application be refused.
40. [40]
    MULLINS JA:  I agree with McMurdo JA.