R v. McGuren [1996] QCA 511 (10 December 1996)

Court of Appeal (Qld)|1996-12-10|Before: Davies JA, McPherson JA, Dowsett J, Before Davies JA

The appellant pleaded not guilty to one count of attempted murder with an alternative count of assault occasioning bodily harm and one count of entering a dwelling house in the night time with intent to commit an indictable offence. He was convicted of attempted murder, acquitted of burglary and sentenced to imprisonment for a period of six years. He had already spent 228 days in custody. The appellant was born on 25 July 1964 and was 31 years of age when the offence was allegedly committed on 7 October 1995.

The complainant on both counts was D who had been in a long-standing relationship with the appellant, by which they had two children. They had ceased to live together in October 1994, the children remaining with the complainant. In the year between their separation and the alleged offence, they had seen each other on a fairly regular basis. No doubt, this was partially attributable to the fact that the appellant visited the complainant to see his children. He was anxious to restore the relationship and it appears that the complainant was, at times, not entirely averse to that idea. On the day preceding the alleged offence, she met him at his place of employment to collect money which he owed her. They had lunch together and looked at furniture which he was contemplating buying. He agreed to care for her children that night so that she could go out socially, and so she picked him up after work and drove him to his caravan to collect some clothing. They went to her home where she commenced to prepare dinner for the children. She then went to her bedroom for a shower and to change. He followed her. It is sufficient to say that he made advances which she discouraged. She left him with the children and went with her sister, other members of her family and friends to the Gem Hotel at Alberton. We give an account of subsequent events based on the Crown evidence.

Some time after the complainant arrived at the hotel, the appellant arrived in a taxi. We infer that they remained at the hotel for some hours, during which time he spoke to her on a number of occasions and again made advances towards her, which she again discouraged. Eventually, at about midnight or 1 a.m., a group, including the appellant and the complainant, went to her sister's home. The appellant and the complainant left together at about 2 a.m. to walk to her residence. For some reason, they were pursued by the complainant's brother. The appellant and the brother became engaged in a fight in the course of which the appellant accidentally struck the complainant in the face. She used her mobile telephone to summon the police. The fight may have already been over by the time they arrived, although this is not clear. They took the appellant to the caravan park and then drove the complainant to her home. The appellant telephoned the complainant on her mobile telephone while she was in the police car, but she refused to speak to him.

Some time after arriving home, she went to bed. Shortly thereafter, she heard a knock on the bedroom window. This was prior to 6 a.m. She saw the appellant outside the window. He asked her if he could come in to make her a cup of coffee. She said that he could not and asked him to get a taxi and go home. He said that he did not have any money. He seemed aggravated. She offered him money and told him to come to the front door. She went to a bedroom where one of her children was sleeping and asked her to telephone the police on the mobile phone. She opened the door but left the security screen locked. They had a conversation through the screen about his catching a taxi. He did not want to do this and became aggressive. She tried to pass him money through a hole in the screen, but he said that he did not want to catch a taxi and then used force to open the screen door. The complainant's young son was sleeping on the floor. He started screaming and ran out of the room. She said to the appellant, "Look what you've done now. I want you out of the house."

She stepped back into the lounge room and the appellant pushed her onto the lounge. He straddled her, put his hands around her throat and squeezed. She could not speak or breathe. She brought her arms up, pushed against his chest, gradually got her knees up between them and shoved, calling out to him, "It is me." In the course of the attack, he said words to the effect of, "I'm going to kill you you fucking bitch." This was said once or twice. She said that he had her by the neck for about 10 seconds. It seems that he desisted when she resisted. He went to the other end of the lounge and started crying. She said that, "He was sorry for what he had done." He said words to the effect of, "I'll probably go back to jail for this." She again asked him to catch a taxi and go home. She retrieved the mobile phone from her daughter. The appellant said, "I suppose you've phoned the fucking cops already." The complainant's daughter said, "No, the battery is dead." It seems, however, that she had done so. The complainant said that she did not want to be in the house with the appellant and started to leave, but he closed the door and told her she was not going anywhere. He shoved her, and she fell on the lounge again. He sat beside her, hugged her and started crying, saying that he knew it was finished but could not imagine life without her. Shortly thereafter, the police arrived.

She consulted a medical practitioner. Photographs (exs. 6, 7 and 8, taken before midday on 7 October 1995) show some reddening and a possible abrasion on the left side of her neck. She said that she grazed both knees in the incident and could not eat or swallow properly for three days because of what she described as the bruising. She had pain in her throat and arms. In cross-examination she agreed that he had on one previous occasion said something like, "If I decide to kill you see how your little piece of paper protects you then." This was apparently a reference to a domestic violence order, although we do not think that the jury was told this. The complainant did not take this threat seriously. She said that he attacked her one or two minutes after he had entered the house. She agreed that when the police arrived, she told him to leave by the back door.

The witness, K, the complainant's daughter, said that she woke up at about 3 o'clock in the morning and heard the appellant's voice. She said that the complainant came into her room, gave her the telephone and said something to her. This was about 5 or 10 minutes after she had woken up. At one stage she walked out and saw the appellant and the complainant on the lounge with "his hand around her neck ...". Her sister L was also there. The appellant was on top of the complainant as she sat on the lounge. He had his hands around her throat. She had her arms and legs up near his chest, trying to push him off. He said, "Shut up, I'm going to kill you you fucking bitch." K said that she observed this scene for a couple of seconds and then returned to her room.

L, another daughter of the complainant, also gave evidence. She was awakened by knocking on the window and heard the appellant speaking to her mother. She saw him in the living room, standing over the complainant who was curled up in a ball on the lounge chair. The appellant was choking her. She heard him say, "I'm going to kill you you fucking bitch." She watched for, "not even a minute". She called out, "Leave her alone," and at this, her mother pushed the appellant away. He said something to the witness, but she did not understand what it was. She thought that she had observed the appellant with his hands around the complainant's neck for something like 5 seconds. During that time, she heard her mother saying, "John, it is me, it is me."

The complainant's sister, P gave evidence. She said something about events earlier in the evening but relevantly, she said that the appellant came to her home on the morning in question at a time which must have been after the attack. He said to her that he had tried to choke D. He was upset and crying. The police arrested him there some time later.

A police officer, Christopher Paul Knight, interviewed him shortly thereafter and in the course of the interview he was asked, "How much have you had to drink John?" He replied,"I haven't had a drink for ages." He was then asked, "How are you feeling now?" He replied,"A bit sick actually." He was asked,"Why is that?" He replied, "It's not because I am hung over or anything. It's just because I'm being charged with attempted murder." An accompanying police officer, Huth said, "We never said that John. The accused said: "Yeah I know." At a later stage he said ,"These are serious charges, aren't they?" It was the Crown case that he had not previously been told by any police officer that he was to be charged with attempted murder, the implication being that his concern that he was to be so charged indicated that he was aware that he had intended to kill the complainant. At a later stage, in another interview, he denied having made that statement. We would not put much weight upon this alleged admission.

The appellant gave evidence. He said that he was depressed by his failure to re-establish relations with the complainant. He said that he went to her home immediately prior to the assault to explain to her that the fracas with her brother had not been his fault. His evidence otherwise generally supported that given by the complainant up to the point at which they were having a conversation through the screen door, at which stage, according to him, she said, "Fuck off", and indicated that she did not want to have anything to do with the relationship. He admitted grabbing the screen door and pulling it open while still trying to explain that what had happened with her brother had not been his fault. She backed away from him and suggested again that he get a taxi and go home. She got the telephone book to find the number, but he continued telling her that he did not want a taxi and that he wanted to talk to her. He probably slammed the book in her hands. She then said that she was not staying in the house and walked out. He followed her and they spoke outside for a couple of minutes. He asked if they could go back inside. He continued trying to explain that what had happened had not been his fault. She said she was going to call a taxi and went to K's room. He said to K, "I suppose you called the cops". She said, "No, the battery's flat." The complainant then changed the battery and went back to the kitchen to get the telephone number for the taxi. He continued to insist that he did not want a taxi, that he wanted to talk to her and again closed the book in her hands.

She went into the lounge room and he followed, taking her by the arms and walking her over to the lounge, causing her to sit down. She sat at one end of the lounge, put her knees up on it and had her hands around her knees. He continued talking to her about the fight the previous evening. At some stage, he had his hands on her shoulders, rocking her and saying, "Can't you see how much I love you?" He then said, "For fuck's sake it wasn't my fault." She brought her right arm up over his left arm and hit him in the side of the face saying,"Look, just fuck off." He pushed her over and grabbed her by the neck. He said, "I just lost control." He said that this was a reaction to what she had done to him. He held her down and she said, "Stop it, stop it." He let her go. She pushed him off with her knees and said, "It's me." He admitted that he had his hands around her neck for about three seconds. Subsequently, he was crying, saying that he was sorry, that he did not mean it and that he was not going to hurt her. He put his arms around her and rubbed her back, saying that he was sorry. When the police arrived she said to him, "Quick. Run out the back." He denied having said anything to the police about being charged with attempted murder. He said that they had told him that he was to be so charged.

In cross-examination he said that when he went to her home that morning, he was feeling very frustrated and upset. He became angry after the complainant told him to, "Fuck off", and that she did not want anything to do with the relationship. He thought she was going to close the door in his face. It was at this point that he pulled the screen open. He admitted pulling it "pretty hard." He said that the attack occurred 8 or 9 minutes after he entered the house. He did not think that he had been squeezing her neck hard. He agreed that he had said, "I'll fucking kill you, you bitch." This was a reaction to her hitting him in the face. He said, "Just for a few second I just lost it, and when she said, 'stop it, stop it', I realised I was hurting her and I let her go." He denied telling the complainant's sister that he had tried to choke her. He said that he had said, "She thinks I tried to choke her." He formed this impression because of the look on the complainant's face. He was asked, "And I take it that you also reject the proposition that when you had your hands around D's neck you reject the proposition that you were attempting to kill her?" He answered, "That's correct. It was a reaction to her hitting me in the face." By way of completeness, we record that the evidence suggested that he had consumed a significant amount of alcohol on the previous evening.

1.In all the circumstances the verdict of the jury was unsafe.

2.The trial Judge erred in his conduct of the trial.

Broadly speaking, the appellant raised three matters in support of his appeal. They were:

(a)The way in which his counsel conducted the trial;

(b)The continuation of the trial after the disclosure by the complainant that the appellant had mentioned the possibility of his going back to jail;

(c)The general question of the safety of the verdict.

The appellant was denied Legal Aid to prosecute this appeal.

As to the first point, we can see nothing in the criticism of the conduct of the defence. The appellant was anxious to stress what he considered to be the improbability of the complainant's account of the struggle. That was very much a jury question, and we are at a loss to understand how the issue could have been better presented to the jury than it was. The areas in dispute were quite limited. He also complained that his counsel cross-examined the complainant about the prior threat to which we have referred. Counsel was trying to elicit the fact that the complainant had not taken his threat seriously on that occasion. This may have been of some value in the defence case, particularly given the apparently equivocal attitude of the complainant towards the relationship and towards the appellant. We do not think that this matter would have, in any way, influenced the jury against the appellant.

As to the reference to his having been in prison, this evidence was probably admissible in any event. It was evidence from the complainant of something said by the appellant shortly after the alleged offence and was arguably indicative of an awareness that he had done something which was likely to lead to his imprisonment. Given that the primary issue at the trial was his intention, it would have been understandable if the Crown had sought to lead it, although the trial Judge may have exercised the discretion to exclude it.

His Honour was asked to stop the trial as a result of this disclosure but declined to do so, relying upon the decision of the High Court in Webb v. The Queen [1994] HCA 30; (1993-4) 181 CLR 41. The question of inadvertent disclosure of previous imprisonment was very much a secondary issue in that case which was primarily concerned with issues of bias. However Toohey J, with the concurrence of Mason CJ and McHugh J, said of such a disclosure (p.90):

"Where evidence prejudicial to an accused is elicited inadvertently, it is a matter for the trial judge to decide whether the jury should be discharged. If the jury are not discharged, on appeal the question for determination is as mentioned earlier in these reasons. That is, the appeal 'is not against the failure to discharge the jury but against the conviction'. The question then is whether a substantial miscarriage of justice has occurred."

It follows that it is not in every case that the inadvertent disclosure of such information will result in discharge of the jury. The question is whether there is a real possibility that the disclosure will lead to a miscarriage of justice. The trial Judge may conclude that this is not likely by virtue of the nature of the disclosure itself or that even if there is such a risk, it may be negatived by an appropriate direction. Where there has been no reference to the reason for the previous imprisonment, an appropriate direction will often suffice. After all, a person may end up in jail for any number of reasons. In the present case, no direction was given concerning this matter. The learned trial Judge offered to do so, but counsel for the appellant asked that he not. The defence often prefers that course simply because counsel perceives that the matter is likely to have less impact if not revisited.

In the present case, the only issue was the question of intention. Although the appellant perceived that there were substantial questions of fact in dispute, it is likely that the jury would have attributed any discrepancies between the various versions to the emotional circumstances in which the events occurred rather than to wilful dishonesty on the part of any witness. It is difficult to believe that on the issue of intention, the jury would have been swayed by the fact that the appellant had previously been in prison, particularly in the absence of knowledge of the reason. This view is supported by the verdict of "not guilty" on the burglary count. The only element in dispute on that count was the intention with which he broke the door and entered. His acquittal suggests that the jury examined the issue of his intention carefully and fairly. There is no basis to assume that they did otherwise on the attempted murder count. We see no reason to fear that the inadvertent reference to his previous imprisonment in any way prejudiced the fairness of the appellant's trial.

As to the safety of the conviction, we keep in mind that proof of intention to kill is often very difficult. This is particularly so in the case of unpremeditated attacks such as the present one. Apart from the circumstances of the attack itself, evidence suggesting an intention to kill included:

(b)the alleged statement to the complainant's sister that he had tried to choke the complainant;

(c)his alleged statement to the police to the effect that he was to be charged with attempted murder before any such accusation was made against him.

Items (b) and (c) are disputed by the appellant. Even taking that evidence at its highest, an admission of choking is not necessarily an admission of an intention to kill, although it is an admission of an appreciation of the nature of the act. It is more likely that the statement that he was to be charged with attempted murder reflected something that he had been told than that it was a spontaneous admission by him of what he had done. A man who has recently tried to kill another might well say, "I tried to kill him", but is unlikely to say spontaneously that he is to be charged with attempted murder. The passive attitude taken by the complainant's daughters when they saw the incident might suggest that they did not perceive any serious cause for alarm. These were jury questions. It is no part of the function of this Court to interfere, save to ensure that there is evidence to justify the verdict and that there is no reason to doubt its safety.

In the present case, the jury had the opportunity to observe the appellant giving his version of events. If a man applies force to the neck of a woman, saying, "I'm going to kill you", and desists only in the face of her resistance, it is difficult to see why it should be unsafe for a jury to infer that he meant what he said. It may be that the appellant lost control momentarily and that the intention to kill did not last for long, but that is a matter for sentence. The appeal against conviction must be dismissed.

The appellant also seeks leave to appeal against sentence. The Crown conceded that this was a spontaneous attack without premeditation and that it had occurred in a domestic situation. The appellant had an alcohol problem, although whilst in the custody awaiting trial, he completed a drug and alcohol dependency programme and achieved some standing in that programme as a person giving support to other addicts. The learned trial Judge took account of the fact that he had not persisted in the attack in the face of her resistance and that no weapon had been used. He also took account of the fact that the appellant was emotional, lacked self-control and had been drinking. His Honour perceived a lack of remorse. The appellant was in employment at the time of the offence.

The appellant had an extensive criminal record, including a number of drug-related offences and offences of dishonesty, although the last of these occurred in 1989. In 1994, he was convicted of dangerous driving. Since then he has been convicted on three occasions of breach of a protection order made in connection with the present complainant. He was in prison for such a breach and for associated offences until about six weeks prior to the present incident. In her victim impact statement, the complainant said that apart from the physical injuries which she suffered, she continues to suffer anxiety with flash-backs and that she is insecure in her relationships with men. She remains frightened of the appellant.

A psychological report tendered on behalf of the appellant gives little assistance save that it discloses a history of depression, including one attempted suicide and suggests previous difficulties in relationships. In summary, the psychologist said:

"In my opinion, Mr McGuren has a very limited capacity to learn from experience. He projects blame onto others, and is unlikely to personally derive any great benefit, or behaviour change, from a period of imprisonment.

In my opinion, Mr McGuren would be best suited by learning to control his alcohol and drug usage in order to diminish the disinhibition caused by these substances. The compulsory attendance at drug and alcohol rehabilitation programs should be considered. He represents a poor candidate to obtain any significant benefits from any ongoing psychological or psychiatric therapy."

There is little doubt that the sentence of six years was within the appropriate range. Indeed, counsel for the appellant conceded as much in the course of submissions at trial. The Crown, in supporting the sentence, relied upon a decision of Dowsett J in R v. Young (unreported - judgment delivered 11 January 1995). In that case the accused was sentenced to seven years' imprisonment on one count of attempted murder. He had formed and partially executed a quite elaborate plan to abduct and kill the complainant after she tried to terminate their relationship. He was suffering from a serious personality disorder and pleaded guilty. Although he had a criminal record, it did not have the same direct relevance as does that of the present appellant. Undoubtedly, the head sentence in the present case should have been less than that in Young, but on the other hand, in comparing the cases it is also necessary to take account of the plea in that case and the present appellant's recent history of domestic harassment. We are unable to detect any error of principle in the sentence, nor any reason to conclude that the sentencing discretion miscarried. We refuse leave to appeal against sentence.

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