Was he provoked? Retrial over ex-girlfriend’s stabbing
A TOWNSVILLE man convicted of the stabbing murder of his ex-girlfriend has been granted a retrial after the Court of Appeal found the jury in his murder trial had not been properly instructed.
Former soldier Dane Andrew Pilcher was found guilty in August 2017 of the violent murder of Townsville mine worker Corrine Henderson, his girlfriend of two years.
He was sentenced to life in jail for the crime but the Court of Appeal today ruled the murder conviction be set aside and a retrial ordered, finding the jury had not been instructed to consider whether provocation had played a role in the crime.
"That partial defence arises under section 304 of the criminal code where a person does the act which unlawfully kills another in the heat of passion caused by sudden provocation, and before there is time for the person's passion to cool," the judgement says.
"If the requirements of section 304 of the criminal code are established a person charged who otherwise would be guilty of murder is instead guilty of manslaughter.
"Justice McMurdo concludes that there was a miscarriage of justice in the appellant's conviction of murder arising from the trial judge's failure to leave it to the jury to decide whether the claimed sudden provocation was based on anything done by the deceased to end the relationship or to change the nature of the relationship between the deceased and the applicant."
During the trial in the Townsville Supreme Court, the court heard Pilcher and Ms Henderson had met while working at a mine and had been in a relationship for about two years when she took steps to break up with Pilcher by sending him messages and changing the locks at her unit.
The court heard on the day of the murder, Ms Henderson and her new partner had gone to the races where a photo of them was shared to Facebook and then forwarded by a third party to Pilcher.
"By the time that the appellant had seen this photograph, he was already in a poor emotional state," the judgments says.
"The appellant testified that when he saw the photograph, he was "absolutely gutted … angry, and … completely taken aback.
"The appellant said that he had heard rumours of a relationship between her and (the other man), but she had "continually denied it."
Upon seeing the photo, Pilcher, who was heavily intoxicated, then took a taxi to Ms Henderson's home, sending the photo to a friend on the way who asked what he thought, to which he responded "kill them both".
"He testified that this was 'a very poorly chosen figure of speech, but it certainly wasn't meant to be taken literally'," the judgement reads.
The jury heard Pilcher broke into Ms Henderson's unit and confronted her while her new partner hid in the bathroom at her request.
Pilcher and Ms Henderson then became involved in an argument in which Pilcher smashed a vase of flowers he asked if her new partner had bought her.
"He said that he then stepped towards her, with his hands in front of him, intending to put them around her waist or hips," the judgement says.
"As he did so, the appellant said, she stabbed him with the kitchen knife in the top of his left arm.
"When this happened, he said, he "called her a f**king bitch" and "tried to get the knife from her". There was a struggle in which he was trying to get the knife from her, which he said "was all very brief … a matter of five, six, seven, eight seconds."
The pair fell to the ground in a struggle.
Pilcher testified: "All I was doing was trying to stop her from stabbing me again. I tried to grab her hands" and "it was all just very, very fast."
He said that he did not recall having "sole control of the knife at any stage during the wrestle, but it appears as though I did."
Ms Henderson suffered one fatal knife wound through the back of her chest and 20 other knife wounds to her face, throat, head, shoulder and hands.
Pilcher said he tried to put Ms Henderson in the recovery position and checked her pulse but she died from her injuries.
"The appellant then rang his former wife, saying that he thought that the deceased was dead and that he had killed her," the judgement says.
"Immediately after that call, the appellant rang the police, in which he said that he had stabbed the deceased with a kitchen knife."
Pilcher's murder conviction was set aside and he will be retried on a charge of murder.