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[2009] QCA 198
respondent. Appeal against conviction dismissed. Application for leave to appeal against sentence refused.
The Court of Appeal rejected Black's challenge to the jury directions about his conduct after Bowman's killing. The evidence had been admitted and relied on by the prosecution, so the jury needed guidance about how it could be used. The trial judge gave that guidance and warned that the evidence was not particularly significant. The court also concluded that any possible error would not have changed the manslaughter result. It found that the 12-year sentence was not excessive, given the deliberate killing, the circumstances of the offence, Black's history and the comparable sentencing range discussed in DeSalvo.
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2,627 words · generated 02/10/2026
John Allan Black was charged with murdering John Edward Bowman, who was killed at Mount Isa on 3 February 2003. The Crown case was that Black fired a shotgun into Bowman's chest from close range, causing injuries to the heart and thoracic aorta and almost instantaneous death ([21]-[23]). The defence disputed that Black fired the fatal shot and raised self-defence, provocation and the effect of illicit drugs on whether he had the intention required for murder ([22]).
No linked legislation citations have been extracted yet.
The evidence described a violent and drug-involved setting. Bowman was described by witnesses as violent and volatile. Evidence also placed him in an argument with Black on the night of the killing, during which Bowman threatened to shoot Black with a gun ([24], [26]). A witness said that, before the killing, Black had assembled a gun and said he would use it against Bowman and another person if they continued causing trouble ([25]).
Other witnesses described Black's movements and statements. Kevin Russell said Black asked for a lift, obtained something the Crown said was a gun, and went to Russell Johnson's house. Later, Black asked for another lift and said he had done something bad and had “shot someone” ([27]-[28]). Black later told his aunt and another witness that he had shot Bowman ([29], [31]).
The appeal's focus was what the judgment called “flight evidence”: Black closed blinds at his aunt's home and was later found by police under a bed. The arrest-under-bed fact was formally admitted at trial ([30], [32]). The prosecution invited the jury to treat this conduct as evidence that Black knew he was guilty. Black argued on appeal that the conduct could have had other explanations and that the judge should not have permitted an adverse inference, or should have directed the jury not to draw one ([35]).
The jury acquitted Black of murder but convicted him of manslaughter on 2 March 2009. He was sentenced to 12 years imprisonment and declared to have committed a serious violent offence ([17]-[18]). The Court of Appeal dismissed the conviction appeal and refused leave to appeal against sentence. All three judges concurred in the orders. Keane JA gave the principal reasons on the contested issues, and Jones J agreed with them ([49]-[52]).
The court's reasoning on the flight evidence was shaped by how the evidence had been dealt with at trial. Black had not objected to its admission, had formally admitted that he was arrested under a bed, and had not asked the trial judge to exclude the evidence or to direct the jury to ignore it ([4], [32]). Once the prosecution relied on the evidence in its address, the judge needed to explain the use the jury could properly make of it. McMurdo P considered that otherwise there was a real danger the jury might give it undue weight ([6]).
The court did not treat the evidence as proof of guilt in itself. The trial judge told the jury that they could draw an adverse inference only if there was no other explanation for the conduct apart from knowledge of guilt. He also referred to other possible explanations and told the jury to draw an inference consistent with innocence if one was reasonably available. He added that the evidence was not particularly significant in the overall case ([36]). McMurdo P considered those directions appropriate and fair in the circumstances, particularly because the defence had not sought a different direction ([7]-[8]).
Keane JA addressed the argument that the conduct was incapable of supporting an inference of consciousness of guilt. He noted evidence that Black had told Mr Sutton he was concerned about police detection. The assertion that he thought police were trying to frame him did not remove the significance of his stated concern about being detected ([40]). Keane JA also observed that there was no evidence that Black had said he was hiding to avoid retaliation by Bowman's associates, or that any other competing explanation had been advanced to the Suttons, Mr Barber or anyone else ([40]). In Keane JA's view, deciding whether the conduct showed an attempt to avoid police detection, and why, was for the jury ([39]-[41]).
The judges emphasised that the evidence's significance had to remain limited. McMurdo P contrasted the case with Edwards v The Queen, where evidence of lies had been of real significance in the prosecution case and was relied on as corroboration ([7]). Keane JA similarly said the judge should not have left the jury without a direction, because the evidence was capable of supporting an inference, but also noted the trial judge's warning that it was not particularly significant ([39]). Thus, the court's reasoning was not that concealment automatically proves guilt. It was that this evidence could be considered, but required careful directions about its limits.
McMurdo P gave an alternative reason for dismissing the conviction appeal. Even if the directions were flawed, he considered that no substantial miscarriage of justice had occurred under s 668E(1A) of the Criminal Code 1899 (Qld). He relied on the evidence as a whole and concluded that a reasonable jury, properly instructed, would inevitably have convicted Black of manslaughter ([9]-[10]). Keane JA also considered it difficult to see how the flight evidence could materially have affected the manslaughter verdict, given the evidence of Black's admissions ([38]-[39]).
On sentence, the court considered whether the sentencing judge had wrongly assumed Black intended to kill or cause grievous bodily harm. Keane JA concluded that the judge had not proceeded on that basis. The judge had said provocation was not the likely basis of the verdict, and the Court of Appeal considered that the more likely explanation was that the jury had a doubt about the required intent, arising from Black's methylamphetamine use ([45]). The killing was nevertheless the result of a deliberate act: Black deliberately pulled the trigger and discharged a shotgun into Bowman's chest at close range ([14], [46]-[47]).
The sentence was assessed against the seriousness of the act, Black's background and comparable cases. The judgment referred to his criminal history, past community-based opportunities, drug abuse, absence of remorse or a guilty plea, and the fact that he was not a first offender ([13]-[15]). Keane JA noted that Black's counsel at sentencing had submitted that 10 to 12 years was an appropriate range ([44]). DeSalvo was cited for a 10-to-12-year range in cases where an unlawful killing resulted from a deliberate act, and Keane JA considered the present offence had even stronger characteristics of a gangland slaying ([47]-[48]). The court therefore refused leave to appeal against sentence.
This judgment does not announce a new general rule about flight evidence or purport to change the law. It applies existing principles to a particular trial record: the conduct was admitted, the prosecution relied on it, and the jury received directions about the limited inference that might be drawn. The decision is therefore best read as an application of principles concerning circumstantial evidence and jury directions, not as a broad rule that post-offence concealment proves guilt.
The reasons refer to Zoneff v The Queen in connection with directions about evidence capable of supporting an inference of consciousness of guilt ([6]; footnotes to [35]-[36]). The judgment does not set out a comprehensive account of Zoneff. Its treatment here is narrower: because the evidence was before the jury and the prosecution relied on it, the jury needed appropriate guidance about its use.
The comparison with Edwards v The Queen helps explain the court's assessment of significance. McMurdo P said that Edwards involved evidence of lies that was important to the prosecution case and used as corroboration, whereas Black's flight evidence was not a major point and was described by the trial judge as not significant ([7]). The court thus distinguished the factual role played by the evidence, rather than disapproving Edwards or changing its rule.
For the appeal's miscarriage-of-justice issue, McMurdo P relied on Weiss v The Queen and asked whether a properly instructed reasonable jury would inevitably have convicted of manslaughter ([10]). The judgment does not provide a wider account of how Weiss operates beyond applying that approach to the evidence in this case.
For sentencing, the court relied on R v DeSalvo as identifying a 10-to-12-year range for an unlawful killing resulting from a deliberate act ([47]). It also mentioned R v Harris as a comparable case in which an offender who pleaded guilty to manslaughter received a cumulative 10-year sentence ([15]). The judgment's treatment of those authorities is tied to the circumstances before it. It does not establish that every deliberate unlawful killing attracts a sentence within that range, or that 12 years is a standard sentence for manslaughter.
The supplied judgment contains no information about later judicial treatment of R v Black. Accordingly, no conclusion about whether later courts followed, limited or distinguished it can be drawn from this source alone.
At [36], the trial judge told the jury: “On its own it, of course, is no evidence of guilt” and said an adverse inference should be drawn only if there was no other explanation for the conduct apart from knowledge of guilt. In plain English, hiding or closing blinds did not itself establish guilt. The jury had to consider whether another reasonably available explanation existed.
At [39], Keane JA said it would have been “quite wrong” for the judge to give no direction about the evidence, because the conduct could support an inference of consciousness of guilt. In plain English, once the evidence was admitted and used by the prosecution, leaving the jury without instructions could create a risk that they would misuse or overvalue it.
At [7], McMurdo P said the evidence was “of limited weight” and contrasted it with Edwards, where the relevant evidence had real significance in the prosecution case. In plain English, the court did not regard the concealment evidence as central or as a substitute for the other evidence.
At [10], McMurdo P said a properly instructed reasonable jury “would inevitably have convicted Black of manslaughter”. In plain English, his Honour considered that even if there had been a problem with the jury direction, the rest of the evidence meant the conviction would still stand under the statutory miscarriage-of-justice approach.
At [14], McMurdo P said the shotgun discharge was a deliberate act even if Black lacked an intention to kill or cause grievous bodily harm. In plain English, the absence of the mental element for murder did not make the act accidental or equivalent to criminal negligence; the deliberate shooting remained central to sentencing.
At [48], Keane JA said the offence had “even stronger characteristics of a gangland slaying” than the offence in DeSalvo. In plain English, the court viewed the circumstances as supporting a sentence at the upper end of the range discussed in that earlier case.
The decision is relevant where a prosecution relies on an accused's post-offence behaviour, such as concealment or evasion, as circumstantial evidence of consciousness of guilt. Its reasoning is most closely connected to a trial where the evidence has been admitted, the prosecution has expressly relied on it, and the defence has not asked for exclusion or a direction that the jury disregard it ([4]-[8], [35]-[39]).
The case also illustrates the importance of identifying the evidentiary basis for alternative explanations. In Black's appeal, his counsel suggested possibilities including fear of police, fear of criminal associates and erratic behaviour connected with methylamphetamine use ([3]). Keane JA considered that the evidence did not support a competing inference that Black was hiding to avoid vengeance from Bowman's associates, and he relied on evidence that Black had himself referred to concern about police detection ([40]). The factual basis available for an alternative inference therefore mattered to the court's assessment.
The decision may also be relevant when assessing the risk of prejudice from evidence of concealment. The court did not say that such evidence is always harmless or always admissible. Rather, it considered the evidence's limited weight, the direction given, the defence position at trial and the strength of the wider prosecution case ([6]-[10], [39]).
For sentencing, the judgment concerns manslaughter where the jury's verdict could reflect an absence of the intention required for murder, but the fatal act was a deliberate, close-range shotgun discharge. The court considered the offender's history, drug use, circumstances of the killing and comparable decisions ([14]-[15], [45]-[48]). It should not be detached from those circumstances and treated as fixing a universal sentencing range.
The judgment supplied is dated 17 July 2009 and does not discuss later cases applying or distinguishing R v Black. It therefore does not establish how later courts have treated the decision. No later-treatment history can be stated on the basis of the supplied text.
Within this judgment, the authorities cited serve different purposes. Zoneff is referred to in connection with directions on consciousness-of-guilt reasoning. Edwards is distinguished by McMurdo P because the evidence there played a more significant role in the prosecution case ([7]). Weiss is applied to the question whether any error caused a substantial miscarriage of justice ([10]). DeSalvo is used as a sentencing comparator for deliberate unlawful killings ([47]-[48]). Harris is mentioned as another manslaughter sentence comparison ([15]). The judgment cites Ali in connection with the difficulty of supposing that the bed evidence materially worsened the jury's assessment of Black in light of his admissions ([39]).
These relationships explain how the Court of Appeal reasoned in 2009. They do not, without later authorities, show whether subsequent courts adopted the same analysis or have qualified it.
The judgment leaves the precise boundaries of a proper direction on consciousness-of-guilt evidence to be assessed in context. The court approved the direction given here, which referred to the inference suggested by the prosecution, alternative explanations, the inference consistent with innocence and the evidence's limited significance ([36]). It does not set out a standard form of direction for all cases.
The role of the defence's trial position is also fact-specific. The judges noted that Black's counsel did not object to the evidence or ask the judge to direct the jury to ignore it ([4], [8]). The judgment does not decide what the appropriate direction would have been if the defence had objected, or how a different evidentiary record might affect admissibility or the assessment of prejudice.
There is some difference in emphasis between the reasons. McMurdo P noted several possible explanations raised on appeal, including fear of criminal associates and the effects of drug use ([3]). Keane JA focused on the trial evidence and concluded there was no evidentially supported competing inference explaining the furtive behaviour ([40]). Both judges agreed on the orders and concluded that the conviction appeal should be dismissed, but their reasoning shows why the trial record and the specific evidence supporting alternative explanations matter.
The alternative miscarriage-of-justice conclusion was stated by McMurdo P. The judgment does not develop a general test beyond its reference to s 668E(1A) and Weiss, or discuss how that approach would apply where the flight evidence was central to the prosecution case rather than peripheral ([9]-[10]).
Finally, the sentencing discussion depends on the deliberate nature and circumstances of this killing. The judgment does not determine how the range discussed in DeSalvo applies to other kinds of manslaughter, such as killings involving materially different conduct or circumstances. Nor does it provide later sentencing decisions that might show how courts subsequently applied the range.
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: R v Black [2009] QCA 198
PARTIES: R v BLACK, John Allan (appellant/applicant)
FILE NO/S: CA No 61 of 2009 / SC No 13 of 2007
DIVISION: Court of Appeal
PROCEEDING: Appeal against Conviction & Sentence
ORIGINATING COURT: Supreme Court at Mt Isa
DELIVERED ON: 17 July 2009
DELIVERED AT: Brisbane
HEARING DATE: 5 June 2009
JUDGES: McMurdo P, Keane JA and Jones J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS: Appeal against conviction dismissed****Application for leave to appeal against sentence refused
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – REVIEW OF EVIDENCE – where evidence to the effect that appellant closed blinds upon arrival of police and arrested under bed – where trial judge directed jury that inference of consciousness of guilt available on that evidence – where appellant alleges that trial judge erred by failing to direct jury that they should not draw such adverse inference because of its prejudicial effect – whether trial judge erred in giving directions / CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where appellant convicted by jury of manslaughter which was declared a serious violent offence and sentenced to 12 years imprisonment – where counsel for appellant at trial submitted appropriate range was 10 to 12 years – where appellant sentenced for unlawful killing resulting from a deliberate act – whether sentence at higher end of the range appropriate / Ali v The Queen (2005) 214 ALR 1; [2005] HCA 8, cited / Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63, cited / R v DeSalvo (2002) 127 A Crim R 229; [2002] QCA 63, cited / R v Harris [2000] QCA 217, cited / Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, cited / Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28, cited
COUNSEL: J D Henry SC, with J Trevino, for the appellant/applicant / M Cowen for the respondent
SOLICITORS: Legal Aid Queensland for the appellant/applicant / Director of Public Prosecutions (Queensland) for the respondent
McMURDO P: I would dismiss this appeal against conviction and refuse the application for leave to appeal against sentence. These are my reasons.
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.
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.
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 20032 [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.
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.
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. 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.
"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."
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.
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.
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.
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.
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.
The case at trial
The charge against the appellant was that on 3 February 2003, at Mount Isa, he murdered John Edward Bowman ("the deceased").
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.
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.
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.
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".
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.
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.
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".
The appellant's arguments
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.
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
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."
Discussion
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.
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 …".
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.
Sentence
The appellant was sentenced on the basis that he was adversely affected at the time of the killing by the consumption of methylamphetamines.
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.
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.
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.
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.
Accordingly, the appellant fell to be sentenced for an unlawful killing which resulted from a deliberate act on his part. In R v DeSalvo13 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.
Conclusion and orders
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.
The appeal against the conviction should be dismissed.
The application for leave to appeal against sentence should be refused.
JONES J: I have read the reasons prepared by Keane JA. I respectfully agree with those reasons and the orders proposed.
The relevant judge's directions are set out in Keane JA's reasons at [36]. ↩
Four days after Bowman's death. ↩
ARB 308-309, transcript 4-24-4-25. ↩
Set out in Keane JA's reasons at [24]-[31]. ↩
Cf Zoneff v R (2000) 200 CLR 234, Gleeson CJ, Gaudron, Gummow and Callinan JJ, at [16]-[24]. ↩
(1993) 178 CLR 193. ↩
Set out in Keane JA's reasons at [24]-[31]. ↩
(2005) 224 CLR 300 at [41], [44], [45]. ↩
[2000] QCA 217. ↩
[2002] QCA 63 at [11]. ↩
Cf Zoneff v The Queen (2000) 200 CLR 234 at [16]-[24]. ↩
Ali v The Queen (2005) 214 ALR 1 at 5 [10]. ↩
(2002) 127 A Crim R 229 at [12]. ↩
R
Black [2009] QCA 198
(2005) 214 ALR 1
(1993) 178 CLR 193
(2005) 224 CLR 300
(2000) 200 CLR 234
Appeal against conviction dismissed. Application for leave to appeal against sentence refused.
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 Queen6 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.
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.
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:
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.
The application for leave to appeal against sentence should be refused. I agree with the orders proposed by Keane JA.
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.
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.
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".
It is convenient to begin by summarising the evidence adduced at trial.
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.
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.
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".
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.
The appellant did not give or call evidence.
I would reject the contention advanced in support of the appeal against conviction.
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.