KJS v R

Judgment 1HOEBEN CJ at CL: Offence and sentence On 2 May 2011 the appellant was indicted on a charge that on 14 April 2009 he had murdered his wife. Upon being indicted on that charge before the jury, he pleaded not guilty to murder but guilty to manslaughter. That plea was not accepted by the Crown and the trial proceeded. 2The issue at trial was provocation. There was no issue that the appellant killed his wife in the bedroom of their home at Fairfield West by beating her about the head with a plumber's tool, known as a "leadbeater" on 14 April 2009. 3The trial commenced on 2 May 2011 and the jury returned its verdict of guilty to murder on 25 May 2011. The appellant was sentenced to imprisonment for 20 years with a non-parole period of 15 years to date from 14 April 2009. 4This is an appeal against conviction only. The appellant relies upon two grounds: Ground 1: His Honour erred in failing to direct the jury that before they could use the allegation that the appellant had sexually assaulted his daughter against him, they would have to find that he committed the offence as a fact beyond reasonable doubt. Ground 2: His Honour erred in failing to direct the jury with respect to the appropriate manner of dealing with lies, which were available as demonstrating a consciousness of guilt of a premeditated killing, and therefore murder not manslaughter. Factual background and evidence at trial 5The factual background was summarised by the trial judge, Hidden J, in his remarks on sentence at pars [4] - [19] upon which the following is based. In order to understand the evidence, it is necessary to briefly summarise the competing cases at trial. 6The Crown case was that on the morning of the incident, it became clear to the appellant that his wife intended leaving him and he became angry. It was the Crown case that the appellant was not provoked to the extent that he lost self control. The Crown submitted that in a planned attack, the appellant ambushed or surprised the deceased and struck her heavily over the head with the leadbeater. He then placed a doona over her head and struck her a number of times resulting in her death. The Crown submitted that evidence regarding the actions of the appellant immediately after the deceased was struck, did not support a loss of self control. 7The appellant's case was that in July 2008 his eldest daughter, who was nearly 17 years old, left home and shortly afterwards accused him of sexually assaulting her over a period of 5 years. The appellant denied the claims and his wife, the deceased, believed him and fully supported him. It was the appellant's case that it was not the actions of the daughter which led to him killing the deceased, but that those allegations were merely background to what happened. The appellant submitted that it was years of mistreatment by the deceased, combined with what she had said to him that morning, which provoked him to kill her. 8The appellant said that on the morning of the incident, he and the deceased started arguing. During the course of that argument, the deceased said "I picked you over ISS (the daughter)". The appellant took that to mean that the deceased did not believe him any more. This meant that the only real support he had ever had was now gone and it was implicit in what the deceased said, that she was calling him a paedophile. He tried to plead his innocence with her but the deceased said "That's it, I'm taking you for everything, I'm taking the house, I'm taking the kids and I'm taking the car off you, the whole lot". She pushed him with both her palms and he tripped over. He felt angry when he fell over. When he got up, he "saw red". He did not remember getting the leadbeater or hitting the deceased over the head. The last recollection he had, was her standing near the doorway of the en suite. He was not able to recall anything concerning the attack after that. It was the appellant's case that the loss of self control was brought about by the actions and words of the deceased, some in the space of seconds and some over the space of years. 9The appellant and the deceased began a relationship in 1990. Their daughter, ISS, the subject of the sexual assault allegations, was born the following year. By then the relationship had broken up. They got together again about four years later and married in 1996. They had two more children, a boy and a girl. 10The evidence of family members and friends was that the appellant was a quiet, reserved person whereas the deceased was a strong personality, outgoing and feisty. Their relationship appeared to be normal. However, the appellant gave a different account of their interaction in the privacy of their home. He said that the deceased was very much the dominant party in the relationship and that she was controlling of him and sometimes aggressive towards him. She did not get on with his family and, out of loyalty to her, he limited his contact with them. He said that he did not disclose any of this to others because it would have been wounding to his ego to do so. 11His evidence, broadly supported by the witnesses, was that he was never violent towards her. There was an occasion in 2005 when he was very angry with her and "trashed" the bedroom of the house in which they were then living and destroyed items of her property and personal effects. This appears to have been an isolated incident. There was also evidence that she told a friend of hers that he could be violent towards her. 12The eldest child, ISS, left home in 2008 due to domestic violence issues with the deceased. She later made allegations of sexual assault against the appellant covering five years between 2003 and 2008. The first complaint about this matter was made in 2008, a short time after she left home. A formal complaint was made to DOCS in April 2009. 13ISS gave evidence at trial. Without going into the detail of her evidence, she alleged a pattern of sexual interference which began with indecent touching and progressed to sexual intercourse, attempted or completed. She said that she told no-one about this behaviour until after she had left the family home in 2008. 14ISS said that for a considerable period of time, the deceased refused to believe her allegations and strongly supported the appellant in his denial of any such conduct. However, her position changed in the early months of 2009 leading up to the killing. It seems that as time passed, the deceased wanted to heal the breach with her daughter and sought mediation between January and April 2009. 15By April 2009, the appellant had been charged with the offences arising from the daughter's allegations. Originally these offences were on the same indictment as the murder charge, until severed from the indictment at the commencement of the trial. 16By Easter 2009, the marriage between the appellant and the deceased was in serious trouble. Apart from the deceased's suspicion about the appellant's sexual assault on their daughter, she came to believe that he was having an affair. This arose from his contact with an old girlfriend on Facebook on Thursday, 9 April. They argued about the matter and he denied having an affair. There was talk of divorce on his part. The atmosphere in the home was tense. 17The family had planned to spend the Easter weekend with friends on the Central Coast. As a result of the argument, the appellant did not go and the deceased travelled to the Central Coast with the two younger children. However, the deceased and the two children returned on Sunday night, 12 April because she was unwell. 18The appellant gave evidence that on Monday, 13 April there was further talk of divorce and the atmosphere between them remained tense, but otherwise nothing of note occurred. In particular, there was no confrontation between them. In the early evening of that day, he sent a text to his employer saying that he had "bad family problems" and would be off work for the rest of the week. Later that evening, the deceased sent a text message to one of the friends with whom she had been staying on the Central Coast saying "the shit hit the fan". Later that same evening, she called the same friend and spoke to him about the appellant wanting a divorce. According to the friend, they spoke for about ten minutes and she did not sound frightened or upset. 19On the morning of the incident, 14 April, the appellant's work truck was collected by his employer. Records indicate that the deceased paid a water bill at 7am. By 8am she was dead. 20The appellant's evidence concerning that day was that he slept downstairs in the lounge-room. When he woke up, he went upstairs to the bedroom he shared with the deceased. The atmosphere had not improved and they argued. He said that he wanted to go away so that they could try to sort things out. She said that she hated the way he treated her and that he did not care about her or the children. 21The appellant's evidence was that the following conversation took place. He said "Don't forget I picked you over my parents, over my family". By that he meant that he had put up with the fact that she resented his family and, even though that resentment was unjustified, he had supported her. She retorted that she had picked him over their daughter. He took that to mean that she no longer supported him in his denial of their daughter's allegations and in fact believed that she was telling the truth. He pleaded his innocence of the allegations but she said "That's it, I'm taking you for everything". She said that she would be taking the house, the children, the car, "the whole lot". She pushed him. He tripped over something and fell. He got up and as he put it, he "saw red". 22The appellant said that he accepted that it was then that he seized the leadbeater and attacked her with it, although he professed to have no memory of doing so. The leadbeater was a tool which he had possessed for some time in his trade as a plumber, although he did not use it in the course of his employment at the time. His evidence was that before they moved to the home at Fairfield West, the deceased used to keep a baseball bat in their bedroom for protection, presumably against intruders, but that was misplaced when they moved house and he gave her the leadbeater to replace it. 23The younger children were present in the house at the time. They did not give evidence at the trial, but videotaped police interviews with them were played to the jury. The effect of their evidence, particularly that of the young girl, was that the appellant walked up the stairs to the main bedroom and returned quite shortly thereafter looking shocked and "rushed". They did not hear anything suggesting a violent incident, such as raised voices or the sound of fighting. The appellant said that their mother had "gone back to sleep". He put them into the family car and drove them to the home of an aunt and asked her to look after them for a few hours. 24In the early afternoon, he spoke to members of his family by mobile phone. The effect of what he told them was that he had killed the deceased and that he was going to burn the house down and kill himself. His sister contacted the police who went to the home. When they arrived he said "My life is over. You might as well arrest me now". He said that he had killed the deceased and that she was upstairs in the bedroom. He was conveyed to Fairfield Police Station, where he admitted having struck her with the leadbeater. In evidence, he did not deny that he made that admission but claimed to have no memory of it. 25The deceased was lying on the floor of the bedroom near the en suite, and the bloodstained leadbeater was lying next to her. Underneath her upper body was a doona, which was bloodstained. A physical evidence officer noted that there was no sign of spatter from projected blood in the area, as might have been expected. He thought it likely that this was because her head was covered by the doona, either before the attack or at least after the initial blow. The appellant accepted that he had done that, although he could not remember it and could not offer any explanation for it. 26Consistently with the phone conversation with members of his family, the police found a jerry can of petrol in the house, a newspaper of that day's date, a torn up "Application for Divorce Kit", together with the torn remains of a letter. They found two further handwritten notes in the car, one of them addressed to the younger children. The torn up note was later able to be reconstructed. It said: "I have no remorse. This is what I've chosen to do. This is the only way I could stop her." 27The effect of the other documents was an expression of his intention to commit suicide and an explanation of his actions by reference to his daughter's allegations which he denied and the deceased's domination of him in their relationship. 28It was the appellant's case at trial that the comment by the deceased "Well I picked you over ISS" was central to his case on provocation. He took that to mean that the deceased no longer believed him and accepted their daughter's allegations. The jury were invited to assess the daughter's evidence because (on the appellant's case) whether or not she was telling the truth was relevant to the gravity of the provocation occasioned by what he alleged the deceased said. If he were innocent of any sexual wrongdoing, what she said to him would be more hurtful than if he were not. Conversely, if he were guilty of the sexual assaults, the deceased's change of allegiance and support of the daughter would have made it more likely that he would then be prosecuted and convicted of those offences, thereby providing a more powerful motive for him to deliberately murder his wife in the premeditated manner contended by the Crown. 29When it became clear that the appellant's daughter was going to give evidence at trial, even though the sexual assault count had been severed, the trial judge made the following observation (T.17.40): "HIS HONOUR: I gave a little thought to this overnight, but the question would be, if evidence of the sexual assault is led, the question would be whether any special directions should be given about it, because given the jury will not be asked to bring any verdict in relation to the sexual assault allegations, is it simply no more than the matrix of the provocation and does the jury have to be given a direction about the standard of proof that they should apply in considering the sexual assault allegations? It is just part of the factual matrix and it is for that very reason I am aware of giving the conventional direction, that a person who has been charged, but he is still innocent. I don't think the presumption should have any part to play, but I am thinking aloud. I am flagging the things that are troubling me today." 30The jury was then empanelled, without the issue having been determined. The Crown opening (T.33 - 40 of 4.5.2011) did not advance any theory of the case. The opening was factually based and related to a series of events and forensic findings. 31There was a defence opening at T.41. The jury was told that the issue for determination was provocation and that the partial defence of provocation was founded on two factual or evidentiary bases. Counsel for the defence said: "The first basis is an unhappy relationship between the accused and the deceased over the years. The second basis is something said by the deceased, shortly before she was killed by the accused, that the accused interpreted as meaning that the deceased believed that something that their daughter, ISS, had said was true." (T.41 - 42.1) On the first basis, counsel for the defence said: "The case for the accused is that there was a slow burn, years of unhappiness, ill treatment and resentment, and that that played its role in the loss of self control that led to the death of the deceased." (T.42.39) 32In relation to the second basis, counsel for the defence said: "The deceased said something to the accused that he interpreted as meaning that the deceased believed the complainant". (T.42.12) Counsel for the defence went on to say: "It is my case that shortly after the deceased said that, and a few other things having been said by her, the accused lost self control and killed the deceased. So that is the issue as to why you will be hearing about the alleged sexual offences from ISS, not to find him guilty or not guilty of them, but so that you can better understand the central defence of provocation." (T.42.27) 33The appellant's daughter, ISS, gave evidence at trial. Counsel for the defence specifically put to her that the appellant had never sexually or indecently assaulted her and that she had fabricated the allegations in this regard. The appellant gave evidence at trial denying his daughter's allegations. 34The question of the directions to be given, with respect to the daughter's evidence, arose again at the conclusion of the evidence and before counsel's addresses. The trial judge said (at T.610, 19.5.11): "But the other question is really, given that the issue of ISS's credibility does arise, what directions should I give the jury about proof of her allegations? Is there a call for any particular direction, or is it simply part of the whole body of evidence which they must consider when determining the issues of provocation and, in particular, the gravity of the provocation? Should there be the customary warning about later complaint or the customary directions about complaint? But I leave those things for you to think about and I would appreciate your assistance on those." 35Counsel for the defence sought a Murray direction (at T.613, 20.5.11) about scrutinising the evidence of ISS with great care, to which the Crown agreed. Such a direction was given in due course. 36Counsel for the defence then said: "Your Honour I just wanted to repeat my submission that the jury should be told that before they act upon the evidence of ISS, they should be satisfied of it beyond reasonable doubt. Now what I say in support of that is, it is not an indispensable, intermediate fact, a Shepherd fact, I accept that. Nor is it tendency evidence that needs to be proven beyond reasonable doubt before it can be taken into account. I accept that as well. ... But the only point I wish to draw from those propositions is that the criminal law does identify facts or aspects of evidence that in certain circumstances need to be proven beyond reasonable doubt before they can be used and in my submission the situation here is analogous to those categories." 37The trial judge refused the application (at T.620, 23.5.11) in the following terms: "I do not propose to give that direction and I think it is inappropriate in the loose analogy of cases dealing with links in the circumstantial chain and in cases of tendency evidence. Nevertheless, they are cases where the evidence at hand is evidence directly bearing on the conduct charged. That is not the case here. I think, frankly, the direction you propose is inappropriate for a start. I think it may also be confusing to the jury. I propose to do no more than direct the jury, as we have agreed, to scrutinise ISS's evidence carefully and to give a direction along those lines." 38The direction ultimately given to the jury was: "Now the important part of the case is ISS's evidence alleging that the accused sexually assaulted her over a period of some years. He is not on trial before you in relation to those allegations obviously and you won't be asked to deliver any verdict in respect of them. The relevance of the evidence is this. Firstly, this is a case where it is obvious that the whole background leading up to the events of 14 April is important, and an important part of that background is the allegations ISS made of sexual assault by her father, and her mother's reaction to those allegations. This is of particular importance when you come to consider the question of provocation. Remember from the accused's evidence that a significant part of what the deceased said to him that morning was "I picked you over ISS". The accused said he took that to mean that after having supported him for so long, and told everyone she didn't believe ISS's allegations, she was now saying she did. As the accused saw it, she was really saying "I was protecting you but I actually believe her". The accused went on to say that he protested his innocence of those allegations to her that morning. It is for that reason that it is not merely the fact of the allegations that is important, it is whether there is any truth in them. ISS gave evidence of the history of sexual abuse which she alleges, and you'll have to make an assessment of that evidence and decide whether you accept her evidence or not. If the accused was provoked by his wife saying to him "I picked you over ISS", you could imagine the provocation would be all the worse if in fact he were innocent. If he had not sexually assaulted ISS then her saying in effect "I believe you did" would have had a real sting in its tail, you might think. It would have less sting in its tail, you might think, if in fact he had sexually assaulted ISS. That is not to say that provocation would be out the window if you accepted ISS. It would still be a matter for you to determine whether in all the circumstances he was provoked so as to lose his self control by what his wife said, even if he was guilty of sexually assaulting ISS. It would be open to you to say, even if he was guilty, nevertheless, he may well have been deeply affected by his wife saying in effect "I believe ISS" when for so long she supported him and said she didn't. So whether you accept ISS's evidence of the allegations of sexual assault is a matter bearing upon the gravity of the provocation the accused may have felt by what his wife said to him that morning. When you come to assess ISS's evidence, you should approach it remembering that she makes very serious allegations against the accused, that those allegations stand or fall by her evidence alone. There is no other evidence tending to confirm what she said. And for those reasons you should examine her evidence carefully and evaluate it carefully. ..." (S/U 13-14) APPEAL Ground of Appeal 1 39The appellant developed his submission as follows. The jury in the summing up was simply told that this matter was relevant to the question of an assessment of the level of provocation. If they found that the allegations were false then the wife's change of allegiance would have caused even greater upset to the appellant. Nothing was said to the jury about how they could use the sexual assault offence if the jury found that the offence had been proved. 40The appellant submitted that the Crown specifically adopted his guilt in relation to the sexual assault offence as part of its case, even putting to him that he had in fact sexually assaulted his daughter. Upon adopting the stance that other criminal conduct was relevant to the jury's determination of the guilt of the appellant, the jury should have been directed that the appropriate standard of proof in this regard was a finding to be made beyond reasonable doubt. The appellant submitted that inherent in the Crown's adoption of his guilt of this other criminal conduct was that his guilt in this regard constituted a step in the proof of the prosecution case. 41This was because it provided a clearer and more powerful motive for murder on the basis that if the deceased left him, it was likely she would support their daughter with respect to these allegations which would have led to his prosecution, conviction and lengthy imprisonment for the sexual assaults. The appellant submitted that this was why the jury should have been directed that before they could rely upon the fact of the appellant's commission of this other criminal conduct, they would have to find that it had been proved beyond reasonable doubt. In that regard, the appellant relied upon the observations of Hayne J in HML v The Queen; SB v The Queen; OAE v The Queen [2008] HCA 16; 235 CLR 334 at [196] and the more general observations of McCallum J in David L'Estrange v The Queen [2011] NSWCCA 89 at [78] - [84]. 42There are a number of difficulties with the appellant's submission. The first is that which was freely conceded at trial, namely that there is no authority in support of it. More importantly, it was never a part of the Crown case, either expressly or implicitly, that proof that the sexual assaults had taken place constituted a step in the proof of the prosecution case. 43The existence of the allegations of sexual assault was a fundamental part of the defence case, not that of the Crown. For the provocation to be made out, it was important for the defence for the fact of the allegations to be raised. Once the fact of the allegations was raised, the background evidence concerning them also had to be raised. The Crown's interest in the sexual assaults was restricted to its need to negative that they had the effect contended for by the appellant, i.e. that they caused him to lose control. 44When attention is directed to what it was that the appellant wished to establish, and what the Crown was required to do in order to negative provocation, the observation by the trial judge to the effect that a "beyond reasonable doubt" direction in relation to the sexual assault matters was inappropriate and would probably be confusing to the jury is shown to be correct. 45As counsel for the defence said in the trial, on more than one occasion, the case of provocation was not based on sexual assault alone, it was also based on what was described as years of mistreatment. Counsel for the defence said in his closing address: "Let me be quite clear about that; it was not the actions of the complainant that led the accused to kill the deceased, it was the actions and words of the deceased. The allegations of the complainant are merely background to what happened." (T.650.38, 23.5.11) 46Ultimately the truth of the allegation of sexual misconduct was irrelevant. It was the fact that it was raised by the deceased and the appellant's response thereto which had to be evaluated by the jury. The defence case did not depend on the truth of the allegation, but the fact that it was made. What mattered on the defence case was that the deceased had changed her position and was now saying, according to the appellant, that she believed the allegations to be true. It mattered not whether the appellant was guilty of the sexual assaults or not, the deceased's change of position would still have caused him significant hurt in that it would have left him standing alone in the family, disbelieved and without support. The issue for consideration by the jury was the loss of self control, not whether the allegations that brought it about were true. 47The Crown was obliged to put to the appellant in cross-examination that he had sexually assaulted ISS because that was the evidence given by her in chief. The Crown did not thereby assume an onus to prove the allegation beyond reasonable doubt. It remained throughout the trial a disputed question of fact relevant to a fact in issue, the resolution of which was independent of the issue of provocation. It was not an intermediate necessary fact or a link in a chain that the jury had to decide beyond reasonable doubt before they could draw other conclusions. 48This was accepted by the defence at trial. 49L'Estrange does not assist the appellant. The real issue in L'Estrange was the admissibility of the evidence and the factual background was quite different. HML involved a much more complex factual background, with conflicting statements of principle related specifically to those facts. The more general statement of Gleeson CJ in that case at [31] supports the Crown position here, i.e. "there was no general principle that whenever, in a criminal trial, the prosecution sets out to prove, as a fact relevant to a fact in issue, that some criminal conduct occurred, that fact must be established beyond reasonable doubt". In any event, the prosecution did not set out to prove nor did it need to prove in this case that the sexual assaults had taken place. 50This ground of appeal has not been made out. Ground of Appeal 2 51The appellant submitted that it was fundamental to the Crown case that the appellant had sexually assaulted ISS and that his denials in this regard were lies. The appellant submitted that it was the Crown case that his whole story about the argument with the deceased acting as provocation was a fabrication and that he had deliberately planned to kill her. The appellant submitted that it was part of the Crown case that the appellant was not to be accepted when he said that he had conveniently forgotten the details of the killing of the deceased. 52The appellant submitted that it was inherent in those submissions that the appellant had fabricated this evidence because of a realisation of his guilt of a premeditated murder, as opposed to manslaughter. The appellant submitted that as a result the lies relied upon by the Crown should have been precisely identified, so that his Honour could direct the jury as to the terms of the alleged lies and the manner in which the Crown relied upon those lies as demonstrating consciousness of guilt. This was particularly important with respect to the alleged lies involving his denials of sexual assault. 53There is a certain unreality in this ground of appeal. It was never fundamental to the Crown case that the appellant had sexually assaulted ISS. This was not at any time asserted. It was the Crown case that his story about an argument acting as provocation was a fabrication. It was also part of the Crown case that the appellant had not forgotten the details of the killing. These latter aspects, however, were not relied upon as lies indicating a consciousness of guilt. That was never asserted, either expressly or implicitly, as part of the Crown case. On the contrary, the Crown relied upon a series of facts which placed in doubt the assertions by the appellant, so as to negative the defence of provocation. 54It was the Crown case that there were facts which were inconsistent with the appellant claiming loss of self control.