R v George

This matter involved the murder of an elderly, Mt Isa couple (‘the Mabbs’) in August 2009. In August 2012 the appellant, was convicted of their murder pursuant to s 302(1)(b) of the Criminal Code 1899 – causing death by means of an act done in the prosecution of an unlawful purpose (felony murder) – the unlawful purpose alleged by the Crown being the burglary of the deceaseds’ home, with an intent to either steal or sexually assault.  In appealing his conviction George argued, inter alia, that the trial judge incorrectly instructed the jury on the relevance of intoxication; and that the trial judge incorrectly admitted evidence of an attempted burglary of the deceaseds’ neighbour on the night of the murder.

Jury Instructions – Relationship of s 28(3) to s 302(b)

Though the appellant did not argue at trial that he was so intoxicated as to be incapable of forming the ‘intent’ necessary to satisfy the mens rea element of either murder or burglary, it was held that the issue was open and was properly left to the jury.  On appeal the contention was that the trial judge did not correctly direct the jury on the relevance of intoxication to the extent to which it went to the intention to commit an indictable offence as one of the elements of burglary which was part of the “felony murder” charge.  The Crown argued that as s 302(1)(b) refers to an “unlawful purpose” and not to “an offence”, there was no requirement to instruct the jury about the intoxication which was only relevant to the latter.  This was rejected by the Court as, in the case before the jury, the unlawful purpose had been particularized as being the offence of burglary which has “intent” as one of its elements.  Although the directions to the jury were inadequate the Court held that, in the circumstances of the case, the proviso in s 668E(1A) applied.

Admission of Evidence

A further ground of appeal was that the admission of evidence which proved the appellant was in the vicinity of the murder, was intoxicated and had previously reacted with violence was inconsistent with an earlier ruling of the Trial Judge to refuse joinder of an attempted-burglary charge with the murder charge because there was too great a risk that the jury would be swayed by the strength of DNA evidence in the murder case and automatically convict George of both. The President (with whom the other members of the Court agreed) held that the evidence was relevant and admissible and that the decision of the Trial Judge to allow this evidence did not contradict the previous ruling refusing joinder. Though the particular evidence in question was, on its own, weak in relation to the guilt of the accused on the charge of murder, it added to the circumstantial case.