Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Criminal law - Application for leave to appeal against conviction for murder - Whether trial judge omitted to give necessary direction to jury - No reasonable prospect of success on appeal - Application dismissed

Gillis v The Queen (Unreported, WASCA, Library No 930688a, 13 December 1993)

Mahmood v The State of Western Australia [2009] WASCA 220

R v Saffron (No 1) (1988) 17 NSWLR 395

2 NEWNES JA: On 15 December 2010, the appellant was convicted, after a trial before Blaxell J and a jury, of the murder of her husband, Derek William Miles. The appellant was sentenced to life imprisonment with a minimum term of 18 years before being eligible for parole.

3 The appellant has applied for leave to appeal against conviction. This court cannot grant leave to appeal unless it is satisfied that a ground of appeal has a reasonable prospect of succeeding: Criminal Appeals Act 2004 (WA) s 27(2).

4 The appellant also requires an extension of time within which to appeal. The appeal notice was filed some seven months out of time. The delay has been explained in a supporting affidavit of the appellant's solicitor as being caused by an oversight on his part in connection with the grant of legal aid for an appeal.

5 As the ground of appeal has no reasonable prospect of success, I would refuse an extension of time and dismiss the appeal for the reasons which follow.

6 The deceased died after he received two stab wounds to the chest at the unit where he lived with the appellant. Both wounds penetrated the deceased's left lung and one of them penetrated his heart, causing his death. It was the prosecution's case that the appellant stabbed the deceased while he lay dozing in bed.

7 The case was a circumstantial one. It is unnecessary to refer to all of the evidence. What follows is sufficient for present purposes. When ambulance officers arrived at the scene in response to a call by the appellant, the deceased's body was lying on the bed in the bedroom he shared with the appellant. The deceased's blood was found on the bed and on the floor alongside the bed, but no traces of the deceased's blood were found outside the bedroom. The prosecution maintained that the blood on the bed strongly suggested that the deceased was stabbed while lying on the bed and the absence of any defensive injuries on the deceased was consistent with the stabbing having occurred while he was dozing. A knife with the deceased's blood on it was found beside the bed. The sheath for the knife was found inside the appellant's bedside drawer. The State's case was that the appellant took steps to cover up her conduct in a cold and calculating way.

8 It was not in dispute that the appellant was present in the unit at the time the deceased suffered the wounds. It was the prosecution case that the appellant and the deceased were the only persons in the unit at that time. The prosecution maintained there was no evidence of any other person having been there. The unit had been locked throughout the evening and it had an alarm system. There were no signs of forced entry.

9 The appellant did not give evidence at the trial but the appellant's account, as contained in her record of interview with police, was that she and the deceased had been watching television in bed. She had gone to the toilet and at the same time the deceased had gone downstairs to get some supper. When the appellant returned, the deceased was leaning against the doorjamb in the doorway to the bedroom with his back to her. He said he had to lie down and she assisted him onto the bed. She then saw that he had a knife protruding from his chest. The deceased pulled it out. The appellant said she called an ambulance.

10 It was the appellant's case, as put by her counsel, that she had no reason to kill the deceased as they enjoyed a very good relationship and that, contrary to the prosecution case, there were other inferences reasonably open as to how the deceased came to suffer the fatal wounds; namely, that the deceased had been stabbed by an intruder or that the wounds had been self-inflicted. In relation to the former, it was suggested on behalf of the appellant that one set of the house keys had not been accounted for, and the evidence established that the alarm system in the house had been deactivated during the evening. In addition, it was contended that there was other evidence consistent with someone else having entered the unit that evening. Counsel for the appellant expressly disavowed a case based on 'self-defence, on insanity or anything like that'. As counsel put it to the jury, '[t]he defence case is quite simple: [the appellant] did not kill her husband' (ts 51).

11 In the course of the trial, evidence was given by a daughter of the appellant, Ms Doyle. Ms Doyle had been living in a downstairs bedroom of the unit for some five months, but on the evening of the deceased's death she was staying at her father's house.

12 In the course of her examination-in-chief by counsel for the respondent, Ms Doyle was asked about the appellant's health. Ms Doyle agreed that the appellant had suffered from depression for some years. Ms Doyle said the appellant had also suffered from a bipolar disorder for which she took medication, so that it was 'always ok'. The following exchange then occurred:

In terms of [the appellant's] health, was there any occasions when [the appellant] had some concerns or indicated to you that she had suicidal thoughts or any of those things?---No.

No? At no time did she attempt any suicide - make any suicide attempts?---I think so (ts 188).

13 Counsel for the appellant objected at that point. In the absence of the jury, the appellant's counsel told the trial judge that it had been agreed by counsel before the trial that, although the video records of interview referred to the appellant's depression, evidence as to any psychiatric illness on the part of the appellant was irrelevant. The prosecutor accepted that such evidence was irrelevant and said she was not intending to take the matter any further. Counsel for the appellant said he was content with that.

14 In his directions to the jury, in the course of summarising the evidence as to the background of the deceased and the appellant, the trial judge referred briefly to the mental state of the appellant as follows:

[The appellant] has in the past suffered from depression and bipolar disorder but for a number of years she has been taking medications which have successfully kept those conditions under control (ts 511).

15 The trial judge was not asked by counsel for the appellant to give any direction to the jury in relation to the evidence given by Ms Doyle in response to the questions about suicidal thoughts on the part of the appellant, and his Honour did not give any such direction.

16 There were initially two proposed grounds of appeal but at the hearing of this application counsel for the appellant abandoned one of the grounds. The remaining ground is as follows:

The learned trial judge erred both in law and fact when he failed to direct the jury to disregard any questions and/or answers adduced by the State concerning suicidal thoughts on the part of the appellant.

17 Counsel for the appellant (who was not counsel at trial) acknowledged that at the trial counsel for the appellant had not sought to have the trial judge direct the jury to disregard any evidence as to suicidal thoughts by the appellant and nor had he suggested that the directions which were given were inadequate in omitting such a direction. It was argued, however, that it was nevertheless incumbent upon his Honour to give such a direction because of what counsel on the appeal described as 'the highly prejudicial' evidence of Ms Doyle. The evidence referred to consists of the answers to the two questions set out above.

18 The appellant's counsel argued that the significance of the evidence, and therefore the need to give such a direction, was heightened by his Honour's statement in his summing up (ts 509) that the evidence of the backgrounds of each of the deceased and the appellant, and the nature of their relationship, was highly pertinent to the jury's assessment of the reasonableness of each of the inferences suggested as to how the deceased came to suffer the fatal injury.

19 It is the case that the failure of a party to draw to the attention of the trial judge an inadequacy in his or her directions to the jury is not fatal to an appeal in which it is alleged that a miscarriage of justice occurred because of that inadequacy, but the failure to do so may indicate that, in the context of the atmosphere of the trial, it did not seem to those present that there was any reasonable ground for concern regarding the adequacy and fairness of the summing up: see R v Saffron (No 1) (1988) 17 NSWLR 395, 434; Gillis v The Queen (Unreported, WASCA, Library No 930688a, 13 December 1993); Mahmood v The State of Western Australia [2009] WASCA 220 [65]. However, it is unnecessary to consider the significance of the omission to seek at trial a direction of the nature contended for by the appellant because I am not persuaded that it was necessary for the trial judge to give such a direction.

20 The ground of appeal proceeds upon the premise that Ms Doyle gave evidence as to suicidal thoughts on the part of the appellant. In my view, Ms Doyle's evidence would not have been understood in that way. In answer to the first question Ms Doyle specifically said that she was not aware of the appellant having any suicidal thoughts. In that context, Ms Doyle's answer to the second, somewhat clumsily phrased, question could not reasonably have been understood as anything other than evidence that, so far as Ms Doyle knew, the appellant had never attempted to commit suicide.

21 I should note for completeness that Ms Doyle's evidence as to the appellant's depression and her bipolar disorder, which was controlled by medication, was not controversial and those matters were the subject of a direction (referred to above), about which no complaint is made.

22 In my view, the appellant's proposed ground of appeal has no reasonable prospect of succeeding. I would refuse an extension of time within which to appeal and dismiss the appeal.