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MEMORANDUM To:

Thomas McCrawley

Date:

2 November 2018

From:

Helen Collinson

RE:

Criminal procedure research

Client:

Brown, Samantha (DOB: 29/04/1991) – File: RP/2018/316/01

ISSUE (1) Whether Ms Brown actions pertaining to the unlawful killing of Mr Appleby and Ms Sharkey arose from provocation. If so, what are the legislative provisions providing the ability to raise the partial defence of provocation against the criminal charge and how can these be applied to Ms Brown’s case? ISSUE (2) What is the procedural process undertaken by the Court to determine whether cases involving multiple indictable offences are tried as a joinder of charges or to set separate trials for each charge? How will this procedure apply to Ms Brown’s two counts of murder? BRIEF ANSWER – ISSUE (1) Ms Brown’s action pertaining to the unlawful killings of Mr Appleby and Ms Sharkey do not satisfy the partial murder defence of provocation. BRIEF ANSWER – ISSUE (2) The Crown Prosecutor will seek the Court applies provisions for a joinder of charges. Ms Brown can seek the Court enact its legislative powers to set separate trials on the basis that the nature of the offences are not similar. MATERIAL FACTS

On 17 February 218 Ms Brown was charged with two counts of murder for the unlawful killings of Mr Appleby and Ms Sharkey. The killings took place in the residence she shared with de facto partner Mr Appleby in circumstances of Ms Brown discovering Mr Appleby’s affair with Ms Sharkey. The deaths were caused by multiple stab wounds, with the weapon being a chef knife Ms Brown removed from her employment as a chef. Ms Brown and Mr Appleby engage in regular arguments during their relationship. Ms Brown’s work colleagues report her as having anger issues, an issue Ms Brown is actively seeking treatment for through a psychologist. Mr Appleby facilitated Ms Browns treatment by providing transport to and from the psychologist sessions. Ms Brown does not deny causing the deaths, however, her recollection of events is vivid. Police found Ms Brown sitting on the bed, covered in blood and still holding the chef’s knife. DISCUSSION – ISSUE (1) Part A: Rule of Law Section 291 QCC: It is a criminal offence to kill another person, with provisions for exceptions being in circumstances of when the killing is either authorised, justified or excused by law.1 A person who has committed a criminal offence of homicide can be convicted of either (1) murder; or (2) manslaughter.2 The legal principal relied upon to distinguish murder from manslaughter in commonly referred to as the “fault element” which, in general terms requires intent to be established for murder charges whereas homicide caused by recklessness or negligence actions constitutes manslaughter.3 Persuant to Section 302(1)(a) QCC to be convicted of murder, the prosecution must prove that the accused intended to either (1) commit murder or (2) cause grievous bodily harm,4 however, under

1 Ibid, s 291. 2 Eric Colvin, Suzie Linden & John McKechnie, Criminal Law in Queensland and Western Australia (LexisNexis Butterworths, 4th ed, 2005) 70 [2]. 3 Andrew Hemming, Criminal Law Guidebook: Queensland and Western Australian, (Oxford University Press, 2015 Retrieved from < http://lib.oup.com.au/he/Law/hemming/HEM_CLG_AssesPrep_Ch6.pdf>. 4 Ibid, 302(1)(a).

Section 302(2) QCC in circumstances of an offender having the intent to kill a person and, in facilitating that offence, subsequently causes the death of another person, it is immaterial that the offender did not intend to kill the additional person.5 In circumstances of an unlawful killing which does not constitute murder, the person is liable for the lesser offence of manslaughter.6 A partial defence against murder which can result in a conviction of the lesser offence of manslaughter is provocation.7 Persuant to Section 268-269 QCC the term “provocation” is used in reference to offences committed by person against someone who has deprived the offender of their power of self-control, providing the offender provocation for the offence.8 A provocation defence must establish that: 

The accused acted in the heat of the moment;



The accused was not provided the appropriate amount of time to calm down;



The force used by the accused is not disproportioned to the provocation; and



Intent to cause death or grievous bodily harm cannot be established.9

The doctrine of provocation extends beyond the loss of self-control arising from anger or resentment, as observed in the case of Van Den Hoek v The Queen whereby it was held that provocation encompasses circumstances of when such loss of self-control occurs because of an emotional reaction such as fear or panic.10 Persuant to Subsection 304(2)(1) QCC provocation cannot be based on that of words alone, other than in circumstances of an “exceptional character”,11 or that there is an existence of a domestic relationship has been established between the offender and deceased12 on the basis that the provocation has been

5 Ibid, s 302(2). 6 Ibid, s 303. 7 Mitchell N. Berman & Ian P. Farrell, ‘Provocation Manslaughter as Partial Justification and Partial Excuse’ (2011) 52.4 William and Mary Law Review 1027.1. 8 Ibid, s 268. 9 Ibid, s 269. 10 Van Den Hoek v The Queen (1986) 161 CLR 158, 161-162, 169. 11 Ibid, s 304(2)(1). 12 Ibid, s 304(3)(a).

derived from anything done by the deceased or anything the offender believes the deceased has done to end or change the relationship or indicate the same.13 These provisions for exceptions are commonly referred to as “crimes of passion” as it has been observed that being emotionally affected from a romantic relationship can cause that person to experience emotion regulation difficulties. Furthermore, if the deprived person has continued to hold unrequired feelings for their partner, their emotional instability can heighten14 as observed in R v Babsek, whereby a woman shot her ex-boyfriend in the head with his own riffle, instantly killing him. Provocation was established in this case as, amongst other key elements, Ms Babsek wished to reconcile the relationship, however, during a scheduled handover of their son, her ex-boyfriend confirmed that their relationship had ended on a final basis. Subsequently, Ms Babsek shot him as she “couldn’t accept him leaving me”.15 Bought in the appellant jurisdiction, the Court of Appeal determined that Ms Babsek actions satisfied the defence of provocation, adopting the approach of Thomas JA in R v Haack who held that: “A case such as this where death was caused during the emotional and traumatic breakup of a relationship is less likely to require particular or individual deterrence; the violence usually arises out of a unique relationship and set of circumstances and is therefore less likely to be repeated”.16 With provocation defences raised under the provision of an “exceptional character” the prevalent considerations taken by the Court generally focus on the history of violence, either the individual’s history or the existence of violence within a relationship.17 Such provocation defences are commonly raised in cases with a history of domestic violence between deceased

13 Ibid, s 304(c)(i)-(iii). 14 The Australian Law Reform Commission, A review of the defence of provocation, Discussion Paper No 63 (2008) 5.192. 15 R v Babsek [1999] QCA 364. 16 R v Haack [1999] QCA 076. 17 Ibid, s 304(7).

and accused. For instance, the defence of provocation of an exceptional character was successfully argued in the case of R v Knox whereby Ms Knox killed her partner by stabbing him once in the chest as he had begun taunting her after the couple engaged in a violent argument. Ms Knox was convicted of the lesser charge of manslaughter, with the sentencing judge relying upon the relationships violent history to support the sentence handed down.18 In recent times, provision of exceptional character is also recognised as a legal loophole, with a growing number of cases of women who unlawfully kill their partners making false claims of domestic violence for the purposes of being also to rely upon the defence of provocation, with the opportunity to exploit the legal loophole being further exploited by the relevant provisions under the QCC pertaining to who bears the onus of proof in cases involving provocation.19 The prosecution generally bears the legal or “persuasive” onus of proof, with the procedural rule being formed on the common law requirement to protect the presumption of innocence.20 The procedural rules pertaining to the response legal or “persuasive” onus of proof generally lies with the prosecution, with this legal principal arising from the notion of an accused person being deemed innocent until proven guilty. Persuant to Section 304(9) QCC the defence team bears the evidentiary onus of proof to prove the accused should only be held liable for manslaughter.21 Part B: Application Ms Brown was not authorised, justified or excused by the law to enact the killings of Mr Appleby or Ms Sharkey. As such, persuant to Section 291 QCC Ms Brown is deemed to have unlawfully killed both Mr Appleby and Ms Sharkey. Ms Brown has been charged with 18 Queensland Law Reform Commission, A review of the excuse of accident and the defence of provocation, Report No 64 (2008) 13 [239]-[242].

19 Andrew Hemming, ‘Provocation: a totally flawed defence’ (2015) 14 University of Western Australia Law Review, 5.1. 20 The Australian Law Reform Commission, Traditional Rights and Freedoms – Encroachments by Commonwealth Laws, Issues Paper No 46 (2014) 9.9. 21 Ibid, s 304(9).

murder, accordingly Section 302(1)(a) applies. As such, the prosecution needs to prove that Ms Brown’s actions were premeditated. Furthermore, it is evident by the forensic report that Ms Sharkey’s cause of death was a result of receiving stab wounds whilst underneath Mr Appleby which demonstrates that Ms Brown did not direct her attack on Ms Sharkey. Accordingly, Section 302(2) QCC applies which places full criminal liability on Ms Brown for the unlawful killing of Ms Sharkey. Ms Brown claims she did not intend to kill either Mr Appleby or Ms Sharkey, that she had planned on surprising Mr Appleby by leaving work early in hopes to reconcile the relationship difficulties the couple were experiencing. Therefore, Section 303 QCC provisions for manslaughter apply. As such, the evidentiary onus of proof lies with the defence. Ms Brown lost self-control when discovering Mr Appleby in bed with Ms Sharkey, instantly reacting by using her chef knife to inflict an excessive volume of stab wounds on the victims. These actions established that Ms Brown, acted in the heat of the moment, using a force disproportionate to the circumstances. Accordingly, satisfying the requirements to raise a partial defence of provocation persuant to Section 209 QCC. Ms Brown was in a de facto relationship with Mr Appleby. It is evident Mr Appleby was cheating on Ms Brown with Ms Sharkey. These actions substantiate Mr Appleby indicating to Ms Brown that their relationship may end. Accordingly, provision for exception persuant to Section 304(1)(c) can be applied, therefore the defence of provocation can be based on words alone. Part C: Counter-analysis The prosecution may argue that Ms Brown’s decision to leave work approximately three (3) hours before the scheduled end of shift substantiates intent for a murder charge. This alone can be counter argued with the fact that Ms Brown was not only suffering from workplace

bullying, providing reason enough to warrant time off work, obtaining a sworn statement from Ms Brown’s psychologist would correlate with Ms Brown’s testimony that she and Mr Appleby were experiencing relationship difficulties. Thus, supporting Ms Brown’s reason for leaving early to surprise Mr Appleby in hope to reconcile those difficulties however the prosecution may then argue that, while leaving work early alone may not substantiate intent beyond a reasonable doubt, the fact that Ms Brown recognised Ms Sharkey’s car parked in the driveway of her and Mr Appleby’s residence she made a decision to remove a knife from the knife chef kit and carry on her person while entering her own home through the back door is evident that, in that moment, Ms Brown formed the intent to kill. Furthermore, this argument diminishes the ability to raise the partial defence of provocation as, at that particular time, Ms Brown had the opportunity to take all the time required to calm down and therefore gain self-control. DISCUSSION – ISSUE (2) Part A: Rule of Law As murder is a serious criminal offence, the legislative provisions pertaining to the Court’s procedural process is set out under indictable offences.22 The process commences with the determination of whether the matter proceeds to the District Court or Supreme Court.23 This initial process is referred to as the “indictment”, a form outlining the case which is presented to the Court by either a Crown Law Officer or Crown Prosecutor,24 with the Court’s assessment having key considerations for the complexity of the case and the seriousness of the charges.”25 Under Section 576 QCC a person facing an indictment containing a count of a murder charge can either be convicted of that charge or the lesser offence of manslaughter, however, and

22 LexisNexis, Encyclopaedic Australian Legal Dictionary (at 10 September 2013). 23 Criminal Code Act 1899 (Qld) s 560(1). 24 Ibid, s 566(1). 25 Ibid, s 566(2)(a)-(d).

if an indictment brought against a person for manslaughter may only carry a conviction of manslaughter, the offence cannot be increased to that of murder.26 Persuant to Section 567 QCC an indictment can only include one offence, 27 however, provisions for exception are provided which allow for joinder of charges in circumstances that the indictments against a person comprise of a series of offences of the same or similar nature, or it can be established that a serious of offences have been committed for the same purpose.28 The fundamental basis of this legal rule was set forth by Gaudron and McHugh JJ whereby it was observed the rational of separate trails ensured that evidence is property admitted to ensure the jury is property instructed and aware of which offence the defendant is to be punished for.29 Indictments are presented to the Court in the pre-trial directions and rulings process. It is at this stage the Court will enact it’s legislative powers, providing the Court’s direction or ruling in relation to, amongst other relevant elements, whether a matter will proceed to trial in the form of joinder of charges or if separate trials are required for each offence.30 The legal principal for a Court ascertaining the appropriateness of separate trials is generally in circumstances of when the accused may be prejudiced against by proceeding under a joinder of charges trial31 The same rational forms the basis of provisions to separate trials where two or more charges have been made against the same person.32 A widely known Queensland murder trial that the Court enacted its power to have charges tried separately was the cold case of the McCulkin murders, which involved 1974 murders of Barbara McCulkin and her two daughters. The three victims were killed by Garry Dubois and Vincent O’Dempsey and the Court determined a joinder of charges would prove prejudice 26 Ibid, s 576(1)(2). 27 Ibid, s 567(1). 28 Ibid, s 567(2). 29 David Ross ‘Joinder of Counts against One Accused’ (2004) 9 Deakin Law Review, 199.9. 30 Ibid, s 590AA (1)(2(b). 31 The Queen v Hofschuster (1992) FLR 385 [5]. 32 Criminal Code Act 1899 (Qld) s 597A(1).

against Dubois as, while the two accused jointly deprived the victims of their liberty, it was established that O’Dempsey was responsible for all three unlawful killings. 33Joinder of charges does not result in a reduction of charges a person in facing, with joinder of charges the indictment lists each offence in separate paragraphs which are then referred to as a “count”.34 In circumstances the accused alleges improper joinder must appeal against the decision pleading for the indictment to be quashed on the ground of formal defect persuant to Section 596 QCC.35 The legal precedent relied upon for over thirty cases nation-wide, eleven of these cases being Queensland matters, involving allegations of improper joinder was observed in R v Collins [1996] 1 Qd R 631,36 with the most prevalent case which relied upon this legal precedent being that of R v Patel, which involved multiple unlawful killings over several years, whereby the defence argued for separate trails persuant to Section 597A QCC with the rationale that the offences were not similar in character.37 Part B: Application Ms Brown has been charged with murder offences, which are categorised as indictable offences. As such, Section 560(1) QCC must be applied, requiring the Crown Prosecutor to present an indictment of the charges to the Court which will initially confirm which Court the matter is tried before. Accordingly, considerations under Section 566 (2)(a)-(d) will be applied by the Court. Furthermore, the Crown Prosecutor must request an exception to Section 567 QCC which restricts indictments to one charge. Accordingly, Section 567(1)-(3) applies.

33 R v Dubois & O’Dempsey [2016] QSC 176 [2]-[6]. 34 Ibid, s 567(3). 35 Criminal Code Act 1899 (Qld) s 596. 36 LexisNexis Pacific Research, Halsbury’s Laws of Australia (at 12 November 2018) ‘section 596 Criminal Code Act’. 37 R v Patel [2009] QSC 166.

Ms Brown has been charged with two separate murder offences. As such, Section 597A QCC applies. Therefore, the Court is required to assess prejudice against Ms Brown by having a joinder of charges or to separate the trials. Part C: Counter Analysis It is apparent by the nature of the charges as described that the Crown Prosecutor is perusing that the Court rules against legal rule persuant to Section 566 (1) QCC that an indictment can only have one offence, requesting a trial by joinder of charges with the application of provisions for exception under Section 566 (2)(a), being that the offences are similar in nature. If that matter proceeds under a joinder of charges and murder convictions are handed down, the defence can appeal under Section 596 QCC seeking the indictment be quashed on the ground of formal defect as the nature of the offences were distinctly different as, while Mr Appleby and Ms Sharkey were both caused by stab wounds, it is evident by the forensic report Ms Sharkey was killed by accident as she only received stab wounds intended for Mr Appleby. CONCLUSION Ms Brown is criminally liable for the unlawful killings of Mr Appleby and Ms Sharkey. While there are elements of the material facts which satisfy the legislative requirements in raising a partial defence of provocation, when analysing the case in a holistic view the actions of Ms Brown indicate that, while Ms Brown may not have initially intend to kill, she formed intent in circumstances that also provided an opportunity to take the time to calm down. Ms Brown recognised Ms Sharkey’s car and instead of calming down, she proceeded to the back entrance carrying one of her chef knives. Accordingly, it is the writers opinion that the prosecution will successfully convict Ms Brown of the two counts of murder as presently charged. Accordingly, the defence should proceed with preparing an appeal against having a

joinder of charges tried. Separate trials may secure Ms Brown the lesser conviction of manslaughter in the offence against Ms Sharkey....