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[2004] WASCA 159
Court of Appeal (WA)
2004-08-05
Heenan J, Miller J, Steytler J, Miere J
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : MEKO -v- THE QUEEN [2004] WASCA 159
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Criminal law - Appeal - Wilful murder - Lies - "Edwards" direction - Relationship of direction to possible alternative verdicts of murder or manslaughter
Sentencing - Application for leave to appeal against sentence - Wilful murder - Sentence of strict security life imprisonment for 21 years
Axford v R, unreported; CCA SCt of WA; Library No 980200; 20 April 1998
Banks v The Queen [2003] WASCA 198
Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193
R v Nguyen [2001] VSCA 1; (2001) 118 A Crim R 479
R v Woolley (1989) 42 A Crim R 418
Williams v R (1996) 17 WAR 17
Broadhurst v R [1964] All ER 111
Dauphin v The Queen [2002] WASCA 104
Griffin v The Queen [2001] WASCA 11
Khoo v R, unreported; CCA SCt of WA; Library No 960184; 2 April 1996
Lauritsen v The Queen [2000] WASCA 203
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Osland v R [1998] HCA 75; (1998) 197 CLR 316
Roberts v The Queen [2003] WASCA 237
Zoneff v R (2000) 200 CLR 234
1 STEYTLER J: I have had the advantage of reading the judgment of EM Heenan J. I agree with it and with his Honour's conclusion that the appeal against conviction should be dismissed and that, while leave to appeal against sentence should be granted, that appeal, too, should be dismissed.
2 EM HEENAN J: After a five day trial before Miller J and a jury the appellant, Tesfaye Teka Meko, was convicted as charged that on 6 November 2000 at Joondanna he wilfully murdered Semegne Dagnew Mola. After hearing submissions about the sentence which should be imposed, the learned trial Judge, on 29 November 2002, sentenced the appellant to strict security life imprisonment with a minimum term of 21 years before becoming eligible for parole, such sentence to date from 6 November 2000, the date of the crime. The appellant now appeals against his conviction and, alternatively, seeks leave to appeal against the sentence imposed.
3 There are three grounds advanced in support of the appeal against conviction. Each asserts that the learned trial Judge erred in the direction which he gave to the jury concerning the significance of alleged lies told by the accused when giving evidence at his trial. The details of the grounds of appeal can be deferred until after the circumstances of the killing have been described. There are eight grounds advanced in support of the application for leave to appeal against sentence, each alleging that the learned trial Judge failed to give any, or sufficient, weight to certain designated factors personal to the appellant. A detailed description of these can also be left until later in these reasons.
4 The appellant was born in Ethiopia on 10 May 1957 and was, therefore, 43 years of age at the date of the alleged crime. He described himself as an Oromo, one of a people who lived in Ethiopia but not a real Ethiopian. He was educated in Ethiopia and attended university at Addis Ababa. His family and other members of the Oromo were dealt with harshly by the Mengistu regime then in power in Ethiopia as a result of which he left Ethiopia for the Sudan in 1984. On arrival in the Sudan he was initially imprisoned but was later released and granted refugee status. He then lived and worked in the capital Khartoum for about 14 years before coming to Australia in September 1998.
5 It was in Khartoum in 1992 that the appellant met the deceased, Semegne Dagnew Mola. At that time she already had a son, Mabiretu Drajo Haile, born in January 1983. The deceased and her son had also each been born in Ethiopia but had also fled to the Sudan because of
conditions in Ethiopia at the time. It seems that the appellant and the deceased developed a relationship after their meeting in Khartoum in 1992 but the appellant denied that he ever lived with her as man and wife in the Sudan.
6 The appellant, the deceased and her son were hoping to emigrate from the Sudan. They had a friend who had successfully emigrated to Australia and he was willing to sponsor them as immigrants to this country. For some reason they considered that it was necessary that they should appear to be married when applying to emigrate to Australia and so a false marriage certificate was obtained showing, oddly, that the appellant and the deceased had been married in Ethiopia on 31 February 1981. In fact, the appellant and the deceased had never been married. That certificate was submitted to the immigration authorities and the appellant, the deceased and her son Haile were accepted as immigrants to Australia and arrived in Perth, as noted, in September 1998.
7 On arrival the appellant, the deceased and her son lived in the suburb of Bentley with the friend who had sponsored their immigration to this country for about four months. To all appearances the appellant and the deceased lived together as man and wife. However, there had never been any lawful marriage between them and it seems doubtful that they were even living together on a de facto basis, although that may have occurred for a relatively short time in Australia. The false marriage certificate had been obtained while the two were living in Khartoum in about 1995 simply to facilitate the prospects of being accepted for migration.
8 As it was, the appellant and the deceased separated in January 1999 because he discovered her with another man. At the time the two had a number of joint financial obligations and liabilities and unravelling their financial affairs caused them some problems which, in turn, resulted in arguments. The appellant went and stayed with a friend for some time before moving, first to Wembley and then to Maylands and later, in about October 2000, to Carlisle. His "wife" as she was often called and his stepson stayed for a while at the house in Bentley but later the deceased and her son moved to the unit in Kinsella Street, Joondanna where she was living at the time of her death.
9 After the separation in early 1999 various friends in the Perth Ethiopian community, and relatives abroad, pressed the appellant and the deceased to attempt a reconciliation. This was in conformity with the cultural traditions of the couple but no reconciliation occurred. Further difficulties were experienced and in August 1999 the deceased obtained a restraining order against the appellant forbidding him to contact her or to approach her home. Despite this, various friends and acquaintances within the Ethiopian community continued to press the two to undergo a reconciliation but still nothing came of this. Eventually the appellant decided to seek a divorce. He arranged for some enquiries to be made from the Family Court and learned that it would be necessary to obtain the "marriage certificate" and to use this in support of the application for divorce. The false marriage certificate was in the possession of the deceased and the appellant made various requests to obtain it but it was not forthcoming.
10 The difficulty and delay in obtaining the marriage certificate seems to have become a bone of contention for the appellant and on the morning of 6 November 2000, when he was on his way to classes that he was attending in Adelaide Terrace, Perth, the appellant telephoned the deceased at her unit in Joondanna to ask for the marriage certificate. The request was unsuccessful and he claims that when he was speaking to her she hung up on the telephone line. He telephoned again but there was no answer and he thereupon decided to go immediately to the unit in Joondanna to see the deceased about the matter. This is so notwithstanding that the restraining order prohibited such contact between them. When the appellant set out that morning he took with him a bag in which there was a small axe or tomahawk and he also had on his possession, and perhaps in the bag, a folding all-purpose pocket knife.
11 The appellant arrived outside his wife's unit in Kinsella Street, Joondanna at about 9 o'clock on the morning of 6 November 2000. He knocked on the door to be let in but could not obtain entry. He thereupon used the tomahawk or axe to smash the window to the lounge room and, leaving his bag outside, climbed in holding the axe. He claims that as he climbed through the window his "wife" struck him and a fight developed in which she continued to attack him. A struggle for the control of the axe developed and his wife bit him severely on the lip and elsewhere.
12 Two ladies in the unit next door heard glass breaking when the appellant smashed the window of the unit and they went to their door to investigate. They heard loud screaming in a woman's voice and words spoken in a foreign language which they could not understand. They did not hear any words spoken in a male voice but described hearing a loud guttural throaty noise, obviously made by a man. The woman's screaming had started very soon after these neighbours heard the noise of breaking glass and it continued for some minutes but weakened as time passed and then stopped after a few minutes.
13 The two neighbours, who were still watching, then saw the appellant climb out of the broken window of the unit carrying the small axe and heavily blood stained. One said that she saw the appellant pick up his bag and walk off still carrying the axe but that he stopped near the street, walked back, towards the unit, climbed through the broken window carrying the axe and then came out again shortly afterwards. She says that he then put the axe in the bag he was carrying and walked off down the street. Her sister, the other neighbour, confirmed that it was about 9 am when she heard glass being smashed in the window of unit 3 next door and on going to look saw a big floral light coloured bag left outside by the window. She then saw a man jumping out of a window holding a bloodied axe in his right hand and covered with blood. She says that this man went to Kinsella Street and then ran down towards Green Street and Stoneham Street. She did not see what happened to the axe.
14 A Mrs Graham and her husband lived in Green Street, Joondanna. She was seeing her husband off to work on the morning of 6 November 2000 at about 9.20 am. She saw a man of African or Ethiopian descent walking by covered in blood. He asked her to call the police and she decided to call an ambulance instead. He told her: "My wife assaulted me". Her husband had got out of his car and sat down with this man and was talking to him when a police car went past driven by detectives. They returned and arrested the man and took him away.
15 After first being interviewed at the police station the appellant later agreed to go back with the police officers to the unit at Kinsella Street and, together with police officers, walked through explaining things.
16 In the police video recorded interview at the police station the appellant described why he had gone to his wife's house, how he got in and how a fight started when she attacked him. He claimed, in effect, that he had struck her with the axe in self-defence.
17 Various police officers had been called to the scene. The first to attend, PC Beros, found the dead body of Semegne Dagnew Mola inside on the floor, showing severe injuries to the head and elsewhere. There were large quantities of blood spattered about and other signs of a struggle. He located a blood-stained axe/tomahawk lying on the floor of the unit. Other police officers conducted more investigations in the area.
18 Following a trail of blood spots leading from the unit, Senior Constable A Elliott went to the corner of Stoneham and Kinsella Streets and found a pocket knife with its blade unfolded. It had been found by Detective Sergeant M L Calzada and its location marked. A number of coins were found by the knife. The knife was found on Stoneham Street at a point between the unit in Kinsella Street and before Green Street. It was seized and taken off for testing. Dr G R Turbett, a scientist in charge of the forensic biology division of the Pathology Department at Sir Charles Gairdner Hospital later analysed the knife for blood stains. None could be seen but Dr Turbett swabbed the main blade and tested it chemically and it gave a very weak positive reaction with the screening test for blood, meaning that there may have been blood present at very low levels - just traces.
19 The Chief Forensic Pathologist, Dr C T Cooke, was called to the scene and conducted an examination of the body of the deceased at the unit in Kinsella Street. Later, on 9 November 2000, he conducted a detailed post mortem examination at the State Mortuary upon her body. He found injuries to the left leg, right arm, left arm, chest and abdomen, head and face. He reached the opinion that the cause of death was head injury. His examination showed severe injuries to the head, with extensive fracturing of the skull and bruising/tearing of parts of the brain. Minor injuries to the right cheek and of two fingers of the left hand were consistent with bite injuries. Two patterned injuries, with a rectangular appearance, were present on the skin of the abdomen, and behind the left ear. There was also a penetrating injury (stab wound) to the left side of the groin, extending through the fat and muscle of the pelvis to the base of the bladder.
20 In his post-mortem report, Dr Cooke described the injury in the groin area as follows:
"There is a penetrating (stab) injury to the groin, to the left side of the top (anterior) part of the vulva. The injury through the skin measures 30 mm in length. There is some (minimal) haemorrhage associated with this injury. A wound track extends upwards and towards the left through the fat and muscle of the groin region, the wound track extending to a depth of 6 cm to the lower (inferior) aspect of the pelvic bone (left inferior pubic ramus). There is a small amount of haemorrhage within and adjacent to the wound track, with a small amount of haemorrhage at the base of the bladder where the wound track apparently ends."
In the course of his oral evidence at the trial, Dr Cooke said that his main conclusion was that the head injury was the cause of death and that there were at least 10 areas of impact to the scalp resulting in extensive skull fracturing, bruising and laceration of the brain. In cross-examination Dr Cooke accepted that the injury to the groin area was not one which was likely to be fatal. The width of the stab wound on the skin was 30 mm and the depth of the wound was 6 cm. It was put to Dr Cooke that the knife which was found had a blade which, at its widest, was 13 mm and that this might not be the instrument which caused the groin injury. Dr Cooke did not accept that suggestion, pointing out that if a knife enters the body it cuts as it enters and can slice and extend the injury on exit but he accepted that it was unusual to get such a degree of extension and said that that could happen.
21 In examination-in-chief Dr Cooke said that the stab wound to the groin area had gone through the lady's clothing. He found holes in her underpants and in her skirt, corresponding with the position of the stab wound. There was a small amount of blood staining found in the underpants and Dr Cooke explained that the wound had not bled to any great extent. He felt pretty sure that if the lady was not dead then she was certainly close to death at the time this injury was suffered.
22 After he had been arrested, the appellant agreed to participate in a videotaped record of interview conducted at the Mount Hawthorn police station by Detective Senior Constable Fogliani. That video became Exhibit I at the trial. At the time when that interview was being conducted Detective Fogliani was not aware that there had been a stab wound to the deceased in the area of her groin nor that a knife had been found near the scene. Consequently, no questions were directed to that groin injury or the use of a knife by the appellant in the course of that interview nor did the appellant say anything about that subject. There was a second video recorded interview with the appellant conducted later at the scene of the killing but this was not tendered in evidence. Detective Fogliani was unable to say, in his evidence, whether or not there had been any reference to a knife, or to a stab wound to the groin area of the deceased in this second interview.
23 That second interview at 37 Kinsella Street took place in the presence of Detective Fogliani, Detective Sergeant Calzada and Detective Senior Constable Robert Hoyle. Detective Hoyle gave evidence at the trial about that and, in the course of his cross-examination by counsel for the appellant, was asked whether any questions had been asked of the accused about a knife which had been found somewhere in the street. Detective Hoyle agreed that, in response, the appellant had said that he did not touch her (meaning the deceased) "with knife".
24 The appellant himself gave evidence at his trial and was cross-examined. He described the events which had brought him, the deceased and her son to Australia, the separation which had occurred between them in 1999 and his desire to obtain the "marriage certificate" so that he could get on with the intended divorce. He described how, after the unsuccessful attempts to speak to the deceased by telephone on the morning of 6 November 2000 about the "marriage certificate", he decided to go to her unit and acknowledged that he was carrying the small axe/tomahawk and the all-purpose pocket knife in his bag when he went. He described how he took the axe out of the bag, left the bag outside the unit and then smashed the window with the axe to get in. His evidence was that as he climbed through the window he was struck by the deceased and that a fierce struggle ensued in the course of which she bit him severely on his upper lip, tearing the skin and how there was an extended struggle over the axe. He claimed that he had struck her with the axe in order to defend himself and denied ever intending to kill.
25 Significantly, the appellant in his evidence at the trial denied ever stabbing the deceased with a knife. He said that he did not take the pocket knife inside the unit when he entered but left it in the bag outside. He admitted that the pocket knife, found by the police and tendered as an exhibit at the trial, was his but said that it was a multi-purpose knife which he used to open cans to eat food. He said that after he had left the unit and was near the corner of Stoneham Street and Kinsella Street where the knife was found, he got a small box out of his bag which contained the knife and some coins and tried to take out the coins and phone cards so he could make a call if he found a public phone. In relation to the stab wound to the groin area of the deceased, his examination-in-chief included the following passage:
"BAYLY, MR: Where was the knife when you were in the flat?---It is in the bag. I never take out from the bag until when I'm trying to find the coins, the second time, when I'm in a hurry. I think it fell down from the bag.
Dr Cooke, who conducted an autopsy, found that your wife had been stabbed in the groin area - well, stabbed is the wrong word; had an injury to the groin area. Are you able to tell us anything about that injury?---Not at all. Not at all. I never used the knife. I never used the knife and I never take the knife inside the house.
Alright. Do you know how that injury could have occurred? During the time when she constantly bite my lips, at that time I barely see a thing is going around. I'm just making like this to defend myself. I don't know---Just stop for a minute. You are indicating that when she had your lip - you were indicating with your left hand that you are hitting above your head with your eyes shut. Go on.
MILLER J: With his right hand?---Right hand, yes.
BAYLY, MR: You are quite right, right hand? I don't know. I don't know. By that time I don't know which area I hit but---
MILLER J: Mr Bayly, if he didn't do it he can't speculate how it happened?---Yeah.
BAYLY, MR: No, alright?---But what I'm - I'm sure that I never take the knife inside the house. I never used to attack her."
26 And, in the course of cross-examination, there was the following evidence about the knife.
"PROSECUTOR, (MR MACTAGGART): Are you quite sure you didn't take that knife out of the bag, unfold it and, as it were, stab your wife in the groin area as some sort of---?---The bag and the knife never have been inside.
I put to you that you took that knife inside?---The knife had never been inside the unit.
And you stabbed your wife in the groin area after you had hit her with the axe?---What I am saying is never alone stabbing here. I never take this knife inside the unit; not at all.
I put to you, Mr Meko---? Yes.
---That that is precisely what you did, that you took the knife inside the unit?---I never took the knife inside the unit. I'm 100 per cent sure."
There were other minor references to the knife and the stab wound to the groin of the deceased during the evidence of the appellant but the accused constantly maintained that he had never taken the knife inside the unit and had never used the knife to stab his wife.
27 The defence put forward for the appellant at the trial was that the death of Semegne Dagnew Mola was caused by her head injuries which were inflicted by the use of the axe in the struggle which took place within the unit and that these blows were struck by the appellant in self-defence. Additionally, or alternatively, the appellant relied on a defence of provocation to assert that if he were not acquitted on the grounds of self-defence, he should only be convicted of manslaughter because of the effect of the alleged provocation. He had denied intending to kill the deceased and was asserting that he was fighting back against her attack upon him.
28 Accordingly, as in most trials for wilful murder, a crucial issue for decision by the jury was whether or not the prosecution had proved, beyond reasonable doubt, that the appellant had intended to kill the deceased on the occasion when his actions caused her death. In this case the prosecution submitted that the appellant had gone to the deceased's unit in Joondanna armed with the axe and the knife and intending to kill her. It pointed to the forced entry into the premises by smashing the window and to the extreme violence used inside the unit revealed by the number and severity of the injuries inflicted on the deceased and the degree of force used in the process. In addition, the prosecution attached significance to the stab wound to the deceased's groin submitting that, on the basis of the evidence of Dr Cooke that there had only been slight bleeding from this wound and his opinion that it was inflicted at a time when the deceased was near death or dead, it revealed that the appellant had undertaken an extreme attack upon the deceased and had inflicted this wound at a time when there could have been little, if any, resistance by the deceased, so that it showed an intent to humiliate and degrade his victim in a way consistent with an intent to kill. Further, the prosecutor submitted that the evidence of the appellant, at his trial, and in the statement to the detectives at the second interview at the scene, in which he denied using the knife or taking the knife inside the unit was a deliberate lie, and was of significance because it signified a consciousness of guilt and should, for that reason, be regarded as evidence against the appellant directly relevant to the charge of wilful murder.
The Judge's Direction to the Jury with Respect to Lies
29 As was necessary, the learned trial Judge directed the jury in relation to the alleged lies by the accused in denying that he had stabbed the deceased or taken the knife into her unit. His Honour gave a direction in accordance with Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 where it was said by Deane, Dawson & Gaudron JJ at 208 - 209:
"Ordinarily, the telling of a lie will merely affect the credit of the witness who tells it. A lie told by an accused may go further and, in limited circumstances, amount to conduct which is inconsistent with innocence, and amount therefore to an implied admission of guilt. In this way the telling of a lie may constitute evidence. When it does so, it may amount to corroboration provided that it is not necessary to rely upon the evidence to be corroborated to establish the lie. At one time it was thought that only a lie told out of court could amount to an implied admission, but the distinction is not logically supportable and is no longer drawn. When the telling of a lie by an accused amounts to an implied admission, the prosecution may rely upon it as independent evidence to 'convert what would otherwise have been insufficient into sufficient evidence of guilt' or as corroborative evidence.
But not every lie told by an accused provides evidence probative of guilt. It is only if the accused is telling a lie because he perceives that the truth is inconsistent with his innocence that the telling of the lie may constitute evidence against him. In other words, in telling the lie the accused must be acting as if he were guilty. It must be a lie which an innocent person would not tell. That is why the lie must be deliberate. Telling an untruth inadvertently cannot be indicative of guilt. And the lie must relate to a material issue because the telling of it must be explicable only on the basis that the truth would implicate the accused in the offence with which he is charged. It must be for that reason that he tells the lie. To say that the lie must spring from the realisation or consciousness of guilt is really another way of saying the same thing. It is to say that the accused must be lying because he is conscious that 'if he tells the truth, the truth will convict him'."
30 It is now possible to deal with the specific grounds of appeal advanced by the appellant against his conviction. His amended grounds of appeal all relate to the direction given at the trial with respect to lies. They are:
"The learned trial Judge erred in his direction to the jury on lies, in that:
1. he instructed the jury that the prosecution relied upon a series of lies without identifying those lies;
2. he instructed the jury that if the Applicant had lied about the use of a knife and the cause of the injury to the deceased's groin, that would implicate him in a way which constitutes wilful murder;
3. when instructing the jury as to lies he failed to identify the evidence which would support the Applicant's testimony that he did not use the knife, such as the fact that the width of the wound was greater than the width of the knife blade and the fact that no blood of the deceased was found on the knife."
31 In the course of a very thorough and detailed direction to the jury, and after explaining the elements of the offences of wilful murder, murder and manslaughter as offences a conviction for which was open on this indictment, the learned trial Judge gave a careful and, with respect, correct direction relating to the need for the prosecution to prove an intention to kill, or an intention to cause grievous bodily harm as an essential ingredient in the proof of a case of wilful murder or murder respectively. His Honour also directed the jury fully with regard to self-defence and provocation as defences which the prosecution was obliged to negative beyond reasonable doubt before the jury could reach a verdict of guilty of wilful murder or of murder. In the process his Honour observed that, in addition to the severe injuries to the head, there were lesser injuries elsewhere, including a pattern injury to the front of the abdomen, probable bite marks to the right cheek and fingers of the left hand and a penetrating injury to the groin which was evidence that the jury may look at and take account of if it wished in considering the intention with which an act was done. No objection of any kind is taken to that aspect of his Honour's direction.
32 With regard to the issue of lies, the learned trial Judge made several references to this in the course of his direction and gave a very detailed and full Edwards (supra) direction. In view of the grounds of appeal the details of the direction in this regard should be set out in full. The first occasion on which his Honour dealt with the matter was as follows:
" Ladies and gentlemen, the last direction on law I have to give to you is this: it relates to lies and in this case you heard Mr Mactaggart refer to the fact that the accused, he said, had lied in his account of the incidents that happened and his evidence in this court, and particularly Mr Mactaggart says he lied in relation to the injury to the deceased woman near her vagina, the groin I think Mr Mactaggart referred to it as.
The accused said he didn't stab her, the knife was always in his bag, and Mr Mactaggart says they are deliberate lies. Normally a lie is admissible in evidence if you find there is a lie which affects the credit of a witness. If you are satisfied the accused has lied you may take that into account in determining whether you think he is generally a truthful person, but here the prosecution says you can go further than that. This lie, or series of lies, about this indicate he is really guilty; he was trying to cover up his guilt. That's what they say.
You must consider this submission very carefully before you accept it. There are a number of matters which you must be satisfied about before you can use lies as evidence of a person's guilt of the offence charged, or any alternative offence. First, you must be satisfied he did lie. That means the statement was false and he knew it was false. It's not enough that he may have been confused or forgotten something. Secondly, the lie must be connected with the charge itself.
The Crown would say obviously they are both met here. Some people, for example, may be a bit loose in their talk about things but that wouldn't mean they are guilty of a criminal offence. That's not this situation, as the crown puts it. You must be satisfied that in telling a lie the accused had some knowledge that it was important in the offence. He knew that if he told the truth it would implicate him in the offence. In other words, the crown says, it is important all right because he knew that if he agreed that he'd taken the knife in there and used it, it would most certainly implicate him in a way which the crown says constitutes wilful murder.
In other words, you have to be satisfied the accused was lying because of a realisation of guilt, and here the crown points to what it submits are lies in the accused's account of the main acts of the offence itself. So they say, if he's lying about that it suggests that he was lying because he was trying to cover up some material matter connecting him with the offence. But you must bear in mind a person may be telling a lie for a reason apart from a realisation of guilt. A person may panic, may get carried away, may tell a story for some other reason. If you accept that a lie is explained by a reason such as this then it's not evidence that he was in any way guilty.
So for a lie to amount to an admission of guilt the only reasonable inference from the circumstances in which it was told must be that the accused lied because he knew that if he told the truth he would be found guilty. Such an inference could be the only reasonable one to be drawn only where the lie related to something which directly linked the accused with the crime charged, and it would be a rare case in which it would be permissible to infer beyond reasonable doubt that the accused, by telling a lie, was confessing his guilt."
His Honour then dealt with some details of the prosecution case and said:
"Mr Mactaggart refers to the post-mortem report. He points out that he found the injury not apparent to those apparent at the scene, the injury to the groin, inflicted with a different weapon to the tomahawk. The accused says he never inflicted that injury, but Mr Mactaggart refers to Dr Cooke's evidence. There was a stab wound on the left of the vagina. It went through the clothing and penetrated to 6 centimetres with a small amount of bleeding. It looked like a knife stab. Mr Mactaggart says the importance is, it was inflicted with a knife and at a time when she was either dead or close to death.
How then did she sustain this injury? He says at 7.30 she was fit and well. At 9.20 she was found by Constable Beros in the position shown in that photo, A1. Only one person attacked her, Mr Mactaggart says - the accused. He inflicted injuries to her head and, Mr Mactaggart says, to the groin with the knife Exhibit C - a knife he admits he had, found in the grass down the street. Mr Mactaggart says it is preposterous to suggest someone else might have done it. You might think the only reasonable conclusion open is that he did it with that knife. He points out that there was a weak analysis of blood on it.
So, says, Mr Mactaggart, he inflicted the injury with the knife at some time when she was dead or nearly dead. So, he says, E4; he opened the knife, pulled her skirt up, plunged the knife in 6 centimetres deliberately and precisely. For whatever reason he did it, he says, it speaks volumes. Mr Mactaggart says this was not a man in fear of anyone; rather a man with weapons inflicting violence on a woman in her own unit. Not content with bludgeoning her on the head 10 times, in the last throes of life he inflicted this injury. Why, asks Mr Mactaggart. No motive need be proven. Who knows what motivates humans to do these things.
But, he says, in relation to the accused's evidence, who figures most? Mr Meka [sic] refers to the lady as 'this woman' in the video. 'I, I, I,' says Mr Mactaggart is what he says. 'I had no option.' But, Mr Mactaggart says, nothing compelled him to do what he did. Perhaps, he says, the lady had become an impediment in his mind to his existence. But, Mr Mactaggart submits, the injury to the groin demonstrates spite, revenge and vindictiveness. He points out the clothing has been arranged, the breast exposed, the dress up - very personal attack, he suggests."
And then, still further when dealing with the elements of the case for the appellant, his Honour said to the jury:
"As to the knife issue Mr Bayly says the entry wound to the groin was three times the width of the blade, which Dr Cooke said was unusual. So Mr Bayly says you couldn't conclude the knife caused the injury. It's possible it was not caused by a deliberate action. Dr Cooke said any sharp object could do it. Mr Bayly referred to glass, but I don't know that it was ever put to Dr Cooke that a piece of glass may have penetrated her from the floor. So Mr Bayly suggests you conclude that there were medium velocity blows. Only one site was fatal and all injuries were more or less simultaneous."
33 After the jury had retired to consider its verdict, counsel for the appellant sought a further direction from the learned trial Judge with regard to lies submitting that because the stabbing to the groin was not a cause of death the issue in relation to intention to kill could not relate to that particular injury. On that basis, so counsel submitted, a lie about the use of the knife could not actually be material to the issue which the jury had to decide if, in fact, the head injuries caused the death. In my view, with respect, there was no substance in this submission and the learned trial Judge correctly declined to re-direct the jury in that regard.
34 The jury retired overnight and, the next morning, sent a note to the trial Judge seeking a further direction concerning the meaning of wilful murder. After raising the content of the jury's note with counsel in the absence of the jury his Honour recalled the jury and directed them further in relation to the elements of wilful murder. No objection of any kind is taken to his Honour's observations in this regard. However, in the course of that re-direction his Honour again addressed the issue of lies by the accused and said:
"You will remember there is also evidence about a knife wound, a stab wound which the doctor thought would have come from a knife. Of course at that stage the medical evidence was the lady would have been either dead or almost dead and so that act could not be one which could be said to constitute wilful murder because whatever intent he had at the time, that intent would not have been contemporaneous with the doing of an act which caused death, but the Crown relies on that for other reasons. It says he lied about whether or not he had the knife and you can look at that as an indication of his intention overall on the day, just how he went there and why he went there, but I think it's important to separate that one out from the blows to the head with the tomahawk, which are the blows which are relied upon by the Crown as constituting an attack which it says was wielded with an intent to kill."
35 Quite apart from the significance of any lie which may have been told by the appellant with respect to the presence and his use of a knife within the deceased's unit at Joondanna, the issues before the jury properly required the jurors to consider whether or not the accused had stabbed the deceased in the groin area with a knife, or in some other way, and if so what, if any, significance should be attached to that. There could be no doubt, in the light of the evidence of Dr Cooke, and his findings on post-mortem (none of which was challenged), that the deceased did have a penetrating stab wound in the groin, that the aperture to the wound at the level of the skin was measured at 30 mm and that it had penetrated some 6 cms to the region of the lower bladder. Nor was there any doubt that the wound was consistent with a knife wound and could have been inflicted by the knife, found in the street near the scene, which the appellant admitted was his, although later that admission was qualified by some equivocation about whether in fact it was his knife.
36 The fact that the entry and exit wound in the groin measured 30 mm and the width of the knife was 15 mm was acknowledged by Dr Cooke as being unusual but a result which could happen through the cutting or slicing action of the knife on entry and exit. Furthermore, the knife was found a short distance away from the unit with its blade open, lying on the grass together with some coins. It had been found because the police had followed a trail of blood spots from the unit down the street which had led them to that point. It was known that the appellant had a significant laceration to his lip which had obviously been caused when he had been bitten by the deceased in the struggle inside the unit. That the knife was open, that is with the blade extended, suggests that it had recently been used because it is not customary for a folding pocket knife to be carried with the blade open. Subsequent testing showed a positive reaction to the presence of blood on the knife blade although no visible traces were found. There was no evidence to establish whether the blood detected on the knife blade matched the blood of the deceased or of the appellant but unless the appellant had handled the knife after he himself had begun bleeding there was no explanation offered of how his blood may have got onto the knife blade. If he had handled the knife with the blade extended after he had begun bleeding there does not appear to have been any reason for doing so except to discard it for some reason.
37 Accordingly, in my opinion, it was proper for the jury to be directed and to consider whether or not the appellant had used the knife to stab the deceased and, if he did, whether that was after the fatal head injuries had been inflicted. A conclusion that the appellant had used the knife in that way, in my view, would be a relevant consideration as a step in the process towards determining whether or not the appellant had an intention to kill because the infliction of such a wound, at a time when the victim was dead or close to death and so past any form of resistance, is further evidence of the state of mind in which the appellant acted throughout the episode. Changing weapons from the axe/tomahawk to the knife and inflicting such a blow at the end of the struggle does not readily fit with the defence of provocation and still less with self-defence. Those are questions of significance which arise from the proof of the stab wound inflicted on the deceased regardless of whether or not the appellant lied by denying that he used the knife.
38 As to the appellant's evidence denying that he had taken the knife inside the unit at Kinsella Street, Joondanna or used it to stab the deceased, it can be observed that it would be very difficult to see how this could be anything but a deliberate lie. There was not the least basis for concluding that the penetrating wound to the groin of the deceased had been inflicted by anyone else, or was due to any other cause than a stabbing by the deceased. In that case, as the prosecution powerfully contended, why did the appellant lie about it when he had admitted striking the blows to the deceased with the axe in the course of a violent struggle? Plainly, one reason for doing so may have been that the use of the knife to stab the deceased, after the other blows had been inflicted and she was dead or near death, was inconsistent with the explanation which he had given to the police of acting to protect himself in self-defence or out of provocation. It tended to show a course of conduct of such sustained and serious violence that was only consistent with an intent to kill, and persistence in the use of such violence well past the point of any possible resistance by the victim.
39 It is now possible to deal specifically with the grounds of appeal raised on the appeal against conviction. The first asserts that the learned trial Judge gave a direction to the jury on lies without identifying those lies. The passages already cited from the learned trial Judge's direction shows that his Honour introduced the topic by explaining to the jury the need for him to give a direction in relation to lies and that the prosecutor said that the accused "had lied in his account of the incidents that happened and his evidence in this Court, and particularly, Mr Mactaggart says that he lied in relation to the injury to the deceased woman near her vagina, the groin I think Mr Mactaggart referred to it as". His Honour went on to explain that the accused said that he did not stab the deceased and that the knife was always in his bag outside the unit. All subsequent explanations in the comments made by his Honour relate specifically to lies about taking the knife into the unit and using it and, when subsequently answering the question posed by the jury and giving a further direction his Honour directly refers to "the knife issue".
40 In my view there can be no doubt that when referring to lies and the significance which the jury might attach to a conclusion that the accused had lied, his Honour was specifically referring to "the knife issue", namely the evidence of the appellant, that he had left the knife in the bag outside the unit when he entered it, and that he did not use a knife at all upon the victim. In my respectful opinion the learned trial Judge plainly identified the lies alleged to have been told by the appellant and there could be no doubt that the jury appreciated that it was the accused's denials of taking the knife into the unit or using it upon the deceased were the only subjects of these directions. Accordingly, this ground of appeal must fail.
41 It is convenient to pass directly to the third ground of appeal in which the appellant submits that when the learned trial Judge was instructing the jury as to lies he failed to identify the evidence which would support the appellant's testimony that he did not use the knife, such as the fact that the width of the wound was greater than the width of the knife blade and the fact that no blood of the deceased was found on the knife. In my view, with respect, this ground of appeal overstates the position disclosed by the evidence at the end of the trial. While it is true that there was no evidence to establish that any blood on the knife matched the blood of the deceased there was considerable circumstantial evidence to suggest that this particular knife had been used to wound the victim. First, there was an unequivocal stab wound to the groin of the deceased and the forensic evidence was that this wound had not been caused by the axe or tomahawk but was consistent with the use of the knife which the police had found. There was no other weapon or instrument ever found which might have caused this wound. The knife, when subjected to chemical testing, did give a positive reaction to blood although there were no visual traces of blood found on it and it was not possible to identify that blood. The knife was found on the grass as a result of the police following a trail of blood spots in the street leading from the unit which could only have been caused by the appellant bleeding, presumably from the wound to his lip, as he left the unit, went down Kinsella Street, turned into Stoneham Road and eventually into Green Street. The knife was found in the vicinity of a number of coins and the appellant admitted that he had fumbled in the bag to get coins out of a box in case he found a telephone and that the knife was probably dropped at the same time. These are all indications that this knife was used to inflict the groin wound upon the deceased rather than the contrary. In such circumstances I do not accept that the inability of the police investigation to identify the blood detected on the knife could be elevated to the status of a "fact that no blood of the deceased was found on the knife" or that any direction or observation to that effect would be required of the learned trial Judge or could be justified in the circumstances.
42 With regard to the contention that "the fact that the width of the wound was greater than the width of the knife blade" and that this was evidence which would "support the applicant's testimony that he did not use the knife", this was directly mentioned by the learned trial Judge. In a passage from his Honour's direction, already set out above, but repeated here for convenience, his Honour said:
"As to the knife issue Mr Bayly says the entry wound to the groin was three times the width of the blade, which Dr Cooke said was unusual. So Mr Bayly says you couldn't conclude the knife caused the injury. It's possible it was not caused by a deliberate action. Dr Cooke said any sharp object could do it. Mr Bayly referred to glass, but I don't know that it was ever put to Dr Cooke that a piece of glass might have penetrated her from the floor."
The only evidence on this aspect of the case at the trial came from Dr Cooke himself and, as set out previously, Dr Cooke measured the width of the stab wound of the skin surface as being 30 mm and accepted that the width of the knife blade at its widest point was 13 mm. He accepted that the width of the wound was unusually wide in comparison with the width of the knife blade but he explained that this could happen through the cutting effect of the blade when entering and leaving the wound. In such circumstances I do not accept that it can be said that the evidence about the size of the wound and comparative size of the knife blade "would support the applicant's testimony that he did not use the knife". This conclusion is even more apparent when, on all the evidence in this case, there was simply no other explanation offered, or available as a matter of inference, for the cause of this stab-like wound. With respect, I consider that his Honour's direction in this regard was both adequate and correct and that this third ground of appeal must fail.
43 The second ground of appeal asserts that the learned trial Judge erred in directing the jury that if the applicant had lied about the use of a knife to cause the injury to the deceased's groin that would implicate him in a way which constitutes wilful murder. Involved in that contention is the submission that the direction was erroneous in confining the incriminating consequences of the lie to the charge of wilful murder because it was likely to cause the jury to reason that if such a lie had been told it strengthened the case for wilful murder rather than the possible alternative verdicts of guilty of murder or manslaughter. The premise behind this ground of appeal is that his Honour should have given a direction which explained the significance, if any, of the alleged lie in a manner not confined to the charge of wilful murder.
44 The starting point for the examination of this ground of the appeal is the proposition recognised in Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 by Deane, Dawson and Gaudron JJ at 210 that:
"A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (ie it relates to a material issue) and if it was told by the accused in circumstances in which the explanation for the lie is that he knew that the truth would implicate him in the offence."
So the question becomes whether or not the lies alleged to have been told by the appellant by his denials of the use of the knife, are concerned with some circumstance or event connected with the offence charged (ie wilful murder). The case for the prosecution, as already noted, was that the use of the knife showed a degree and persistence in the use of such force which was indicative of an intention to kill especially where the forensic evidence was to the effect that the wound was inflicted at a time very close to, or following, the point of death. Furthermore, the prosecution made these submissions to the jury in response to a case for the appellant at trial that the death had been caused in self-defence or, alternatively, as a result of provocation. In those circumstances a lie constituting a denial of the use of further force with a different weapon, namely the knife, at a point when the victim was beyond resistance and close to death because of the head injuries, would plainly be inconsistent with self-defence. Furthermore, such a lie is also inconsistent with a defence of provocation because, if the selection of the second weapon and the stabbing to the groin was done by the appellant at a time when he was deprived by provocation of the power of self-control, and acted upon the sudden and before there was time for his passion to cool, there would be no reason to deny that.
45 Counsel for the appellant relied on the decision of this Court in Axford v R, unreported; CCA SCt of WA; Library No 980200; 20 April 1998, a decision of Malcolm CJ, Franklyn and Wallwork JJ. That was an appeal from a conviction for wilful murder where a jury had been directed about the significance of lies told by the accused which were of a kind which could show a realisation or consciousness of guilt. The particular point of significance was the assertion by the appellant in that case that the lies direction should have been given in terms that those lies could only inculpate the accused in the offence of manslaughter and could not inculpate him on the charge of wilful murder or for the other alternative offence open on the indictment, namely murder. The appeal was dismissed. Franklyn J gave reasons with which Malcolm CJ and Wallwork J agreed. After identifying the direction given by the trial Judge in Axford's case and referring to Edwards (supra), Franklyn J said:
"Indeed applicant's counsel conceded that the lies told could be used to show consciousness of guilt but, in his submission, not of wilful murder or murder, but only of manslaughter. The charge faced by the applicant was that of wilful murder. That was for the jury to firstly consider. It was entitled to take into account the lies told if satisfied of their relevance as instructed by his Honour. It is not necessary that the lie, if found to be a relevant lie, go directly to the issue of intent. The test of its relevance is that it 'must relate to a material issue because the telling of it must be explicable only on the basis that the truth would implicate the accused in the events with which he is charged. It must be for that reason that he tells the lie'. (Edwards (supra) at 48). That implication can only be by way of inference and, in my opinion, it may, in appropriate circumstances, result from the lie itself and, in other circumstances, from the lie considered together with other direct or circumstantial evidence. Whether or not the implication is to be made and in what respect it implicates the accused are matters for the jury. In my view it would be inappropriate and indeed wrong for the learned trial Judge to have directed the jury, as the applicant's counsel submits he should have done, that it could only use the lies to inculpate the applicant in the offence of manslaughter."
46 In Axford's case (supra) this Court rejected a submission that, on the facts of that case, the trial Judge should have directed the jury that the significance, if any, of the lies told there went only to the possibility of a conviction for manslaughter and could not be used in determining whether the accused was guilty of wilful murder or murder. In rejecting that submission it is apparent from the passage cited from the judgment of Franklyn J that the significance of the particular lie and its connection with the offence or offences of which the accused is charged, or of which he might be convicted, will depend on the circumstances of the particular case and, no doubt, upon the line of defence adopted by the accused at his trial.
47 On the facts in Axford's case the potential significance of the lie was applicable to any of the offences of which the applicant could have been convicted, namely wilful murder, murder and manslaughter. To my mind it does not follow from the result in that case that there may not be circumstances in which the significance of a particular lie or set of lies by an accused person may be restricted to one only of the offences of which an accused might possibly be convicted. For example, take a case of a charge of wilful murder resulting from a shooting while the accused and the deceased were on a hunting trip together and where, at trial, the accused asserts that his firearm discharged accidentally. If it should emerge that the accused had, shortly beforehand, told a friend that he was experiencing severe financial problems and these would be resolved if his business partner (the deceased) were to die so that he would take over the business, and later, if the accused was shown to have denied having any such conversation with the friend, the significance of that lie would point to a recognition that the truth would expose the accused to the recognition of a premeditated plan to kill rather than in some intent to do grievous bodily harm or in recklessness in the handling of his firearm. In such circumstances there does not seem to be any reason in principle why a jury should not be directed that if it concluded that this hypothetical killer had lied in that way the lie would show a consciousness or recognition of guilt of the crime of wilful murder rather than of some less serious form of homicide.
48 In further support of the second ground of appeal counsel for the appellant relied on the decision of this Court in Banks v The Queen [2003] WASCA 198, a decision of Murray, Parker and McLure JJ. Banks was another case of an appeal from a conviction for wilful murder. The first ground of appeal alleged a misdirection in relation to the conduct of the accused after the offence in circumstances where the prosecution suggested that this conduct revealed a consciousness of guilt of wilful murder. Banks contended, in the appeal, that the direction that the post-offence conduct may stem from a consciousness of guilt should have included a direction that such a consciousness of guilt could relate to some other crime such as murder or manslaughter or simply a consciousness of having been involved in a killing and that such evidence should not be used as probative of guilt of wilful murder. The appeal was unanimously dismissed. In his reasons for decision Murray J followed and applied the decision of the Court of Criminal Appeal of Victoria in R v Woolley (1989) 42 A Crim R 418, itself followed in R v Rice [1996] 2 VR 406 which was in turn referred to with apparent approval in R v Nguyen [2001] VSCA 1; (2001) 118 A Crim R 479 - Victorian Court of Criminal Appeal. Murray J cited the following passage from the decision in R v Woolley (supra) at 423 - 424:
"There is no authority for the proposition that the accused must be found to have acted out of a consciousness of guilt of a particular offence where the wrongdoing may cover a number of possible charges. ... It would, in our opinion, be ... fanciful to require as a precondition to possible use of the conduct that the accused had turned his mind to particular alternatives such as murder or various categories of manslaughter. ... [It] is not always meaningful to ask whether the accused was portraying consciousness and guilt of the crime charged, for at the point of time when the conduct occurs the accused is presumably not thinking of guilt for specific offence, much less the series of alternatives. Rather, the question is whether he is portraying a consciousness of being implicated in the actus reus, whether it be the killing or the robbery.
In the present case the directions given by the learned trial Judge did not, in speaking of consciousness of guilt, refer to each alternative to the principal charge on the presentment. For the reasons already indicated, it is not in our opinion necessary or indeed desirable to adopt such an artificial approach. The critical matters that had to be addressed in the context of this case were that the jury should understand that lies may be told for reasons that do not indicate consciousness of guilt of murder and that the defence explanations of self-protection or fear were put to the jury. The direction here clearly dealt with these matters."
And, further, in Banks (supra) at [66] Murray J stressed that the lies direction which should be given in a particular case would not generally require the direction to state whether the lies or subsequent conduct of the accused were probative of an intention to kill, an intention to do grievous bodily harm or merely of an unlawful killing because so much will depend upon the factual issues before the jury. His Honour stressed that in the Banks case itself the direction which was given was in terms which were appropriate to the case, the issues it raised and to the explanations proffered by the appellant to explain his behaviour consistently with his innocence. In doing so his Honour seems to have been proceeding on the basis that the obligation of the trial Judge in giving such a direction is to give a fair and balanced direction appropriate to the circumstances of the particular case and the issues of fact raised by the defences or explanations offered by the accused. With all respect, that appears to me to be an unimpeachable approach. Parker J gave separate reasons for essentially the same approach. McLure J gave separate reasons for dismissing the appeal in Banks and took an approach slightly different to that of Murray and Parker JJ. At [117] her Honour said, speaking of the decision of the Victorian Court of Criminal Appeal in R v Woolley (supra):
"The court rejected the proposition that before post-events conduct could be placed before the jury the accused must have acted out of a consciousness of guilt of a particular offence in situations where the wrongdoing may cover a number of possible charges. I take this to be a rejection of the position that post-offence conduct is inadmissible if it is equivocal in relation to guilt of the offence charged. That is the law in Canada; R v White (1998) 125 CCC (3rd) 385. To the extent that Woolley v The Queen (supra) is authority for the proposition that it is sufficient if the post-offence conduct betrays 'a consciousness of being implicated in the actus reus' that, in my view, is inconsistent with Edwards v The Queen (supra). The lie must relate to a material issue and no doubt in many cases the lie will relate to the act in question, in this case the killing. It is not suggested that the lie must directly relate to all of the elements of the offence the subject of the charge. However, whether the lie can in fact go further and support an inference of guilt must be assessed by reference to all of the elements of the offence and those other elements are brought into focus in the part of the Edwards direction that requires the trial Judge to explain that there may be reasons for lying other than a consciousness of guilt of the offence under consideration."
This approach of McLure J seems, with respect, to emphasise that the direction which should be given in relation to lies or post-offence conduct, in cases where the lie or conduct is relied upon by the prosecution to show a consciousness of guilt, will often, if not invariably, depend on the particular significance asserted for the lie in question, in the context of the issues arising at the particular trial and, furthermore, upon the basis relied upon by the prosecution to connect that lie with the offence or offences.
49 To add to the hypothetical example which I gave earlier about the situation of a man charged with the wilful murder of his friend arising from a shooting on a joint hunting expedition, it is quite conceivable that evidence may emerge showing that the accused told a lie which revealed a consciousness that his explanation of an accidental shooting was false. The significance of such a lie may be to establish that the accused was guilty of the crime of wilful murder or of murder without signifying which, thus showing guilt of an offence more serious than manslaughter but not indicating which.
50 As so much will depend on the circumstances of the particular case, and the nature and significance of the particular lie in the light of the defence adopted at the trial that I consider that it is unwise to attempt to lay down rules of general application.
51 There may be cases when the significance of the lie can only be to show guilt of one of several charges laid or offences open on the indictment and there will, no doubt, be many others in which the significance of the lie may only reveal a generalised consciousness of guilt without pointing to which of a number of possible offences the accused may be guilty. What is important, however, is that the lies direction should emphasise that it is not every lie which would justify a conclusion that the accused is guilty of any offence; that care must be taken by the jury to determine whether the lie was deliberate and whether it was told with the intention of concealing or avoiding incriminating consequences which the truth might reveal. Further, the incriminating consequences which the truth might reveal must be relevant or connected to some circumstance or event associated with the offence under consideration, whether that be the sole offence, or one or more of several offences, of which the accused might be convicted. If the connection or association between the lie can only possibly relate to one or some of the offences under consideration then fairness will require that the jury should be told that it cannot relate to the other or others. On the other hand, where the lie shows a consciousness of guilt which does not exclude guilt of any offences charged or open on the indictment then it will not be appropriate for the court to be more specific than the conventional form of the direction. In that case, the direction given will only be part of an entire direction which must convey to the jury the elements which must be proved to their satisfaction before the accused can be convicted of all, or any, of the offences charged, in each case distinguishing between them by identifying what must be established to support a conviction for each one of them.
52 For reasons already canvassed, the prosecution in this case relied upon the alleged lies of the appellant, in denying that he took the knife into the unit at Kinsella Street or used it to stab the deceased, as pointing to a consciousness of guilt in that, had he admitted that he had done this, that would point to his guilt of wilful murder. In the circumstances of this case it seems to me, with all respect, that that approach by the prosecution was justified and that, having regard to the defences of provocation and self-defence, the learned trial Judge correctly appreciated that this was the sole significance of the alleged lies.
53 It must not be forgotten that his Honour had already directed the jury fully about the different offences of which the appellant could be convicted on this indictment, including an unchallenged direction about the ingredients of the crime of murder involving an intention to do grievous bodily harm without an intention to kill. Having regard to the circumstances of this case I cannot see that there was any error in the learned trial Judge directing, as he did, that the contention of the prosecution was that the significance of the alleged lies by the accused revealed a consciousness of guilt of the crime of wilful murder. Accordingly, I consider that this second ground of appeal should also be rejected.
Application for Leave to Appeal Against Sentence
54 The amended grounds of appeal in relation to the application for leave to appeal against sentence contend that the sentence of strict security life imprisonment with a non-parole period of 21 years was manifestly excessive in that the learned trial Judge failed to give any or any sufficient weight to the following:
"1. The fact that the Applicant suffered from post-traumatic stress syndrome as a result of being tortured in Ethiopia and at the time of the commission of the offence;
2. the fact that the Applicant suffered from depression at the time of the commission of the offence;
3. the hardship which the Applicant will suffer because he is isolated from the Ethiopian community and has no friends or relatives in Western Australia;
4. the Applicant's prior good record;
5. the Applicant's unfortunate background and personal circumstances;
6. the remorse demonstrated by the Applicant in immediately requesting the police to be called and admitting to the police that he caused the death of the deceased;
7. the Applicant's age at the time that he will become eligible for release on parole;
8. the unlikelihood of the Applicant committing further offences."
Immediately, it must be said that the learned trial Judge expressly directed himself with regard to and took into account every one of the factors identified in these grounds of appeal. Consequently, the only basis for contending error in sentencing must be that insufficient weight was given to one or more of them.
55 His Honour observed that he was satisfied beyond reasonable doubt that this was a premeditated crime in the sense that the appellant formed an intention to go to his wife's home on the morning of 6 November 2000 armed with a tomahawk for the purpose of attacking her. His Honour found that as well as dealing very severe blows to the head of the deceased with the tomahawk the appellant also took a knife out and stabbed her in the groin when she was either dead or close to death and that he had an intention to kill when he attacked her with the tomahawk. His Honour described the attack as extremely savage and a brutal and unjustified assault. After reviewing all the personal factors associated with the appellant, as already mentioned, his Honour said:
"The present case is one in which the wilful murder can properly be categorised as at the upper end of the scale of seriousness. The extent of the injuries suffered by the victim and the horrific way in which she was attacked with a tomahawk whilst defenceless in her own home to which [the appellant] had arrived by breaking a window undoubtedly place it in that category.
I have already indicated that I conclude you went there with an intention to kill her and it was a premeditated killing. It's true that you have antecedents which include no prior convictions and it's true that you have had a troubled and difficult life. There is no evidence that you are a risk to the community of committing serious crimes of violence in the future but as the court made clear in Williams v R (1996) 17 WAR 17, the horrific nature of the crime committed may in itself in a particular case justify the sentencing Judge imposing a sentence of strict security life imprisonment."
56 Having sentenced the appellant to strict security life imprisonment his Honour turned to the question of fixing a period of between 20 and 30 years to be served before being eligible for parole. His Honour concluded that because of the appellant's antecedents, including the difficult life he had suffered in the past and his lack of prior convictions, the minimum term before eligibility for parole should be fixed at the lower end of this range and, for that reason, directed that the appellant should serve a minimum term of 21 years before becoming eligible for parole. His Honour, with respect, correctly identified the relevant principles concerning a case where sentencing the offender to strict security life imprisonment under s 282(a) of the Code arose including the recognition of those factors mentioned in the decision of Williams v R (1996) 17 WAR 17.
57 In my view there is simply no basis upon which it could be suggested that the exercise of the discretion reposing in the trial Judge miscarried when this sentence was imposed or when the minimum term for eligibility for parole was fixed. Nor could it be said that disproportionate weight or significance was given to any one or more factors which required consideration in the sentencing practice at the expense of others or that any feature of the case potentially favourable to the appellant was overlooked. In short, there was no demonstrable error of the sentencing Judge shown nor any other feature of the case suggesting disproportion in sentence which might reveal an otherwise latent error . While I would grant leave to appeal against this sentence I would dismiss that appeal.
58 LE MIERE J: I have had the advantage of reading the judgment of EM Heenan J. I agree with his Honour's reasons and with his Honour's conclusion that the appeal against conviction should be dismissed, that leave to appeal against sentence should be granted, but that appeal should also be dismissed.
Meko
The Queen [2004] WASCA 159
(1993) 178 CLR 193
(2000) 200 CLR 234
(1996) 17 WAR 17
(1999) 195 CLR 665
(1998) 197 CLR 316