R v Gwilliams [1997] QCA 389

They went to the back door of the house and asked if they could use the toilet. They were invited in by Mr and Mrs Cowie, and sat in the kitchen. One of them asked for and was given a drink. Rodney Munro said he was hungry. At Mr Cowie's suggestion, Mrs Cowie began to prepare some cheerios for them to eat, when she found the power was off. The group then left after being given the package of cheerios to take with them.

On the way out they were walking along the driveway beside the house, with the appellant bringing up the rear, and Mr Cowie behind her. Narelle Bunt, who was one of the teenagers and who gave evidence for the prosecution at the trial, said she heard an argument between the appellant and Mr Cowie. She looked and saw he was waving a stick around in front of him, while the appellant had her hand raised to shoulder level. She was pointing a screwdriver at Mr Cowie, and saying "I'm going to kill you. I'm going to kill you, cunt". The screwdriver was one that Narelle had seen the appellant secrete in her clothing before they went out together that morning. The appellant called for help from Rodney Munro, and he began throwing some pot plants at Mr Cowie one or more of which hit him or scattered dirt over him. Narelle then pulled Munro away, and they returned to the footpath at the front of the house.

While they were standing there, they heard sounds of a struggle coming from the house, and then saw Mr Cowie come out of the front door, and collapse on the front porch. His head went through the railings and there was blood down the front of his shirt. He later proved to have been stabbed through the front left side of his chest, the wound penetrating his heart. He died very quickly.

Narelle Bunt's evidence at the trial did not account precisely for what had happened. After she heard the appellant utter her threat against Mr Cowie, he and the appellant went back and around the rear of the house. They must have gone inside the house again. It is evident that he was stabbed inside the house, although only a single drop of blood was found at or near the front door. The only evidence tending at all to divert suspicion away from the appellant was that another of the group of four also returned to the house after the appellant and Mr Cowie went back inside. She was Melinda Nicholls, known as Dolly, whose appeal is the subject of the contemporaneous decision on appeal from the same trial. Narelle Bunt did not see her go back to the house, but she later saw her come out of the front door and step over Mr Cowie lying on the front steps before rejoining the others on the footpath. That was after the appellant, who by then was back on the footpath, had called out "Hurry up Dolly".

The prosecution case was opened to the jury as one in which it was possible for them to decide that either of the appellant or Dolly Nicholls had delivered the fatal wound; but, in his closing address, counsel for the Crown invited the jury to prefer the view that the appellant was the killer, and to find that Nicholls was criminally responsible under s.8. In the result the jury found verdicts of guilty of murder against both girls.

The circumstantial evidence against the appellant as the one who killed Mr Cowie was strong. She was the oldest and plainly the leader of the group. Having uttered the threat to kill him and pointed the screwdriver at him, she pursued him into the house. After she came out and was still on the footpath, Mrs Cowie approached her and asked her what she had done to her husband. At this, the appellant raised her arm, and said "Do you want some?" Mrs Cowie ran back into the yard without waiting to see what the appellant had in her hand. A near neighbour, Mrs Perry, who approached the appellant, was also threatened. She saw the appellant had a screwdriver in her hand, which she raised and brought down in her direction, saying "Old hag, I'll give you a piece of it, too". Mrs Perry's son pulled her away in time.

Then the party ran off across the road. They did not stop until they reached a gully in a paddock some distance away. Narelle asked the appellant what she had done. Her response was "I can't believe I did that". She took her shirt off and gave it to Dolly Nicholls to wear. She had a knife, which she also gave to Nicholls, who put it down the front of her shorts. The appellant subsequently told police that she had stabbed Mr Cowie with a carving fork. Such a fork was later found to have been taken out of a drawer in the kitchen; but the medical evidence was that Mr Cowie had been stabbed with a knife, and the knife given to Nicholls, which also came from that drawer in the kitchen, was later identified as Mr Cowie's fishing knife. Forensic examination detected traces of blood on it, which corresponded to the blood of Mr Cowie.

Except for the fact that Dolly Nicholls must have been in the house at the time Mr Cowie was killed, and that afterwards she had a fresh cut on her knee, there was nothing to connect her with the murder. The evidence that the appellant was the killer was circumstantial but compelling, and it was entirely uncontradicted. The appellant did not give evidence at the trial. Indeed, at one stage during the trial, the appellant threatened Narelle Bunt, saying "Keep your mouth shut, or you're dead". The jury were plainly entitled on the evidence to arrive at a verdict of guilty of murder against the appellant.

A number of specific grounds of appeal appear in the notice of appeal. The trial judge provided the jury with a flow chart to illustrate the various verdicts that were available in respect of the three accused, who included Munro. The use of charts in complex trials has been encouraged by the court and has been described as "a desirable procedure". See Smith v. The Queen [1970] HCA 48; (1970) 121 C.L.R. 572, 577. The chart itself is not criticised as being inaccurate and, if it has an appearance of complexity, that is a consequence of the relevant provisions of the Code rather than of the chart itself.

The second ground was that the trial judge did not allow in his directions for the possibility that the jury might, while returning a verdict of murder against the person who did the stabbing, have decided that the other girl in the house at the time was guilty only of manslaughter. Under the law as it had been decided to be at the time of the trial, it was held that what might be called a s.8 (or s.7) participant could be found guilty only of murder if that was the offence committed by the primary actor. A different view of the law now prevails: R. v. Barlow [1997] HCA 19; (1997) 144 A.L.R. 317. However, it cannot affect the verdict against the appellant in this instance. On all the evidence before the jury she was the one that stabbed Mr Cowie. There can be no doubt at all that she meant to kill, or at least to do him grievous bodily harm. At some time after they had been charged Narelle asked the appellant if Mr Cowie had been pushed out, presumably referring to the front door. The appellant replied that "it was the force of the blow". It must have been a forceful blow to produce that effect. For the jury to have found the appellant guilty only of manslaughter would have been perverse.

The third specific ground in the notice of appeal was that the learned trial judge had wrongly allowed counsel for Nicholls to cross-examine Narelle Bunt, knowing that prejudicial evidence against the appellant would be elicited. The question arose because counsel for the appellant at the trial had cross-examined that witness to show that she had at one time told the police that she did not know who had the knife, which was inconsistent with her evidence at the trial. Counsel for Nicholls proposed to cross-examine Bunt with a view to re-establishing her credit as a witness by eliciting evidence that she had been threatened by the appellant and was afraid of her. It was clearly necessary for the proper defence of Nicholls that this course be taken. Otherwise she might have been found to be the one who stabbed Mr Cowie. The statement, which was "Keep your mouth shut or you're dead", would in any event have been admissible in chief as capable of being considered an admission of guilt. It was admittedly within the discretion of the trial judge to allow such cross-examination, and on appeal the point was not pressed on behalf of the appellant.

In the result, the appeal by the appellant against her conviction for murder cannot succeed and must be dismissed. As regards sentence, the appellant was ordered to be detained for 14 years, which is the maximum under s.121 of the Juvenile Justice Act 1992 in the case of a juvenile offender, as the appellant then was. A sentence of more than 10 years may under s.121(3)(b) be imposed only if the offence is "serious that is a life offence" and involves the commission of violence against a person, and if the court considers it to be "a particularly heinous offence", having regard to all the circumstances. The offence here satisfied the first two statutory requirements of being a serious offence that is a life offence as defined in s.5 of the Act, and as "involving the commission of violence against a person". The sole ground of appeal against sentence is that the offence was not "a particularly heinous offence".

The dictionary gives as meanings of heinous "odious, highly criminal, infamous". It is difficult to see why the learned judge was not entitled to consider the killing of Mr Cowie in this light. He was an elderly man, aged 77 years, who had served his country in World War II. He had done nothing to warrant being killed in this callous and brutal fashion by a member of a generation whose future he had risked his own life to preserve. At one stage when he was retreating backwards to the rear of the house, Narelle Bunt heard him say to the appellant, "Leave me alone. I didn't do anything to you". She added that at that stage he had nothing in his hands. The appellant nevertheless pursued him into the house, and instead of using the screwdriver, which might not have inflicted a fatal wound, she took the knife from the drawer and deliberately stabbed him to death with a single blow. She is a strongly built young woman. He was not only old and frail, but also had the physical disadvantage of having lost a half of one of his feet. There was, as the judge found, an element of pre-meditation in the offence.

The pre-sentence report in respect of the appellant stressed that she comes from a disadvantaged background, in which domestic violence and parental alcoholism prevail. Her reading and writing skills are poor, and she has significant language deficits. She has in the past sustained a series of convictions for other offences, and has a history of using alcohol and other "substances" to excess. She told the author of the report that she regretted having killed Mr Cowie; but there is no indication that she did so at the time, or later at her trial for the offence.

No doubt her life has been a deprived one; but it affords no reason for attacking this kindly old gentleman who with his wife were prepared to open the security door and admit the appellants into their house, let them use its facilities, and provide food for them when they said they were hungry. The appellant abused their trust and friendship by killing Mr Cowie in his own home into which he had, in all good faith, invited her and her friends. As he said himself, he had not done anything to her. The anguish of Mrs Cowie at finding her husband of 40 years or more murdered in cold blood lying dead on the front steps can readily be appreciated. Inevitably his death has in many ways greatly affected her, their two daughters, and their own families. It is not possible to hold that the judge was not entitled to conclude that this was a particularly heinous offence, or that, in all the circumstances, a sentence of 14 years detention was not within the limits of a proper sentencing discretion.

The appeal against conviction and the application for leave to appeal against sentence should be dismissed.

I agree with the reasons for judgment of McPherson J.A. and with the orders he proposes.