Plomp v The Queen

High Court of Australia|1963-07-01|Before: Windeyer JJ

High Court of Australia Dixon C.J. Kitto, Taylor, Menzies and Windeyer JJ. Plomp v The Queen [1963] HCA 44

This is an application for special leave to appeal from a dismissal by the Supreme Court of Queensland, sitting as a Court of Criminal Appeal, of an appeal from a conviction of wilful murder: Reg. v. Plomp [5] .

The applicant was the husband of the deceased and the case made against him was that while surfing with her at Southport he caused her to drown. They were surfing together at dusk on 24th February 1961. What happened was not seen by any independent witness; he gave the alarm about 7.15 p.m. and sought help. According to the evidence there was no danger in the surf. She was a good swimmer and familiar with surfing. Her dead body was later found on the beach some distance south of the place where she was lost.

The case for the Crown was that he had in some way brought about her drowning. His case may really be epitomized by quoting a statement he made on the night of 24th February 1961. It is as follows: "It was then about dusk, and after wading around in the breakers, in water about above our waists, for about ten minutes, I suddenly felt an undertow, and at that time my wife was about six feet away, and we were both swept off our feet, and I saw my wife sucked under a wave, and I could see she was in difficulties, and I attempted to go to her assistance, and I noticed that there was a very strong undertow, and I was only able to hook my hand in the shoulder strap of her bathing costume, and I was then dumped again, and I lost sight of my wife."

In the conditions described by the evidence it was not likely that a fairly good swimmer not unfamiliar with the surf would have been lost unless his or her efforts at recovery were in some way obstructed; but if the facts had rested there it would be indeed difficult to find that the drowning of the swimmer was caused in any way by the person with whom she was swimming. But the facts do not rest there. It was proved that Plomp had formed a liaison with another woman whom he had promised to marry, that he had represented himself as a widower and that he was continuing the liaison. In the circumstances, proved by apparently credible evidence, it was open to conclude that Plomp had the strongest reasons to be rid of his wife. It is unnecessary to traverse all the circumstances in detail. They were placed before the jury and doubtless considered by them. It is enough to say that on the whole case I think it was reasonably open for the jury to be satisfied beyond reasonable doubt that the deceased had been drowned as a result in some way of the conscious agency of the applicant Plomp. I therefore think the verdict of wilful murder is sustainable on the evidence.

It is objected that Plomp's motives cannot be taken into account until it is shown by evidence that in some physical way his actions were responsible for his wife's death. There is nothing, it is said, to show that anything he physically did impeded her emerging from the surf or recovering her equilibrium. Until that is shown, evidence of motive cannot be used, so it is said, to prove guilt. There is, in my opinion, no legal doctrine to that effect. All the circumstances of the case must be weighed in judging whether there is evidence upon which a jury may reasonably be satisfied beyond reasonable doubt of the commission of the crime charged. There may be many cases where it is extremely dangerous to rely heavily on the existence of a motive, where an unexplained death or disappearance of a person is not otherwise proved to be attributable to the accused; but all such considerations must be dealt with on the facts of the particular case. I cannot think, however, that in a case where the prosecution is based on circumstantial evidence any part of the circumstances can be put on one side as relating to motive only and therefore not to be weighed as part of the proofs of what was done. In this case the word "motive" was used during the argument and no doubt at the trial to cover much material. But it is not clear to me whether some of that material did not go somewhat further than what is ordinarily comprised under that word. In the course of the summing up the learned judge who presided at the trial said to the jury: "You must remember that before you can use evidence of motive, there must be a sufficiency in the evidence to establish to you that this death was not an accidental death, to establish to you that he did something in order to get his wife into the water, and having got her there, he wilfully murdered her." This appears to me to go too far in the accused's favour. I think that if the whole of the evidence is read and what the accused said and did both before and after his wife's drowning is considered with all the circumstances of her drowning a reasonably strong circumstantial case is made against him, but I cannot think that this is so if you omitted from it all the detailed circumstances of his dealings with the other woman. It is said that the ordinary rule relating to circumstantial evidence has been ignored or departed from in convicting the accused, namely the rule that you cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances. In a case of a very different character a good deal of attention was paid to this rule: Martin v. Osborne [1] .

Much difficulty is found in stating the rule, a difficulty which has not been overcome by employing the expression "more consistent" as if there could be degrees of consistency. In the case cited what is said is: "If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference. In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed. The circumstances which may be taken into account in this process of reasoning include all facts and matters which form constituent parts or ingredients of the transaction itself or explain or make intelligible the course of conduct pursued. The moral tendencies of persons, their proneness to acts or omissions of a particular description, their reputations and their associations are in general not matters which it is lawful to take into account, and evidence disclosing them, if not otherwise relevant, is rigidly excluded. But the class of acts and occurrences that may be considered includes circumstances whose relation to the fact in issue consists in the probability or increased probability, judged rationally upon common experience, that they would not be found unless the fact to be proved also existed." [2] .

In the present case it appears to me that if the jury weighed all the circumstances they might reasonably conclude that it would put an incredible strain on human experience if Plomp's evident desire to get rid of his wife at that particular juncture, presaged as it was by his talk and actions, were fulfilled by her completely fortuitous death although a good swimmer and in circumstances which ought not to have involved any danger to her.

There is one point which perhaps should be mentioned in this case which does not bear directly on the fate of the application. If the Court of Criminal Appeal had thought that it was dangerous to convict Plomp in all the circumstances it would have been within the province of that Court to interfere. At the time when Peacock's Case was decided [1] , the Criminal Appeal Act had not been passed in Victoria. It was decided on a case stated by the judge at the trial. Some of the expressions used by Barton J. and O'Connor J. tending to the view that the Court might not interfere if there was some sufficient evidence to support a verdict of guilty, however unsafe or unsatisfying it might be, probably are not correct under the provisions of the Criminal Appeal Act, as incorporated in Queensland Criminal Code, see particularly s. 668E; and see Raspor v. The Queen [2] .

(1911) 13 C.L.R. 619. 2. (1958) 99 C.L.R. 346, particularly at pp. 350, 351 and 352.

I have had the advantage of reading the judgment of Menzies J. and subject to the foregoing I agree in what His Honour has written. The application should be refused.

Notwithstanding the careful argument presented on behalf of the applicant I am firmly of the opinion that the application should be refused. I have nothing to add to the observations of the Chief Justice.

This application for special leave to appeal from an order of the Court of Criminal Appeal, Queensland, dismissing the applicant's appeal from his conviction for the murder of his wife, Fay Irene Plomp, by drowning her in the sea at Southport on 24th February 1961 requires consideration of three matters. The first is the contention of the applicant's counsel that where the evidence of a crime is entirely circumstantial, as it was here, a court of criminal appeal should set aside a conviction if it regards the evidence as reasonably admitting of an inference other than guilt. The second is also a submission of general application, viz. that proof of motive for committing a crime, although evidence bearing upon the criminality of an act proved otherwise, cannot be regarded as tending to prove the act itself and that a jury must be so instructed. The third point is that the conviction should be set aside on the ground that it was unreasonable or cannot be supported having regard to the evidence: The Criminal Code Q., s. 668E.

The argument that the approach of a court of criminal appeal in a case where there has been a conviction upon circumstantial evidence should be different from that of such a court when the evidence is direct was indeed supported by a number of citations that do credit to the industry of counsel for the applicant. The authorities relied upon were principally Canadian cases, viz. Fraser v. The King [1] ; R. v. Comba [2] ; R. v. Dawley [3] and R. v. McGrath [4] . In these cases statements are to be found to the effect that, when the evidence of guilt is circumstantial, a court of criminal appeal must set aside a conviction where it seems to the court that the evidence does not negative as a reasonable hypothesis every hypothesis but that of guilt. Nevertheless, I am in no doubt that when what was substantially the same argument as we have heard was addressed to the Court of Criminal Appeal in New South Wales in the cases of R. v. Rothery [5] and R. v. Cable [6] the correct answer was given to it and I am satisfied to repeat some words used by Jordan C.J. delivering the judgment of the Court in the later case, with the observation that it is with competing explanations rather than inferences that the Court is concerned in this sort of case. The Chief Justice's words are: - "If I have correctly understood Mr. Windeyer's argument, it is that the approach of the Court to an appeal in a case in which the conviction has been obtained on circumstantial evidence should be quite different from what has been held to be appropriate where the evidence is direct. In the latter type of case, it may guide itself by what was said by the High Court in Ross v. The King [7] "If there be evidence on which reasonable men could find a verdict of guilty, the determination of the guilt or innocence of the prisoner is a matter for the jury and for them alone, and with their decision based on such evidence no Court or Judge has any right or power to interfere. It is of the highest importance that the grave responsibility which rests on jurors in this respect should be thoroughly understood and always maintained" [8] , or as it has been sometimes put, s. 6 is not intended to substitute for trial by twelve jurymen who have seen and heard the witnesses trial by three Judges who have not. But in the former type, it is said, the Court of Criminal Appeal has a completely free hand. If, on reading a transcript of the evidence, it thinks that it would itself have given a different verdict, that is enough, not only to entitle, but to require, it to set aside the jury's verdict. I entirely disagree with this contention, for which there is no shadow of authority; and there is nothing in the Act to support it. It may be pointed out also that it was held by this Court in R. v. Rothery [1] , in which the High Court refused special leave to appeal, that the rule that where the evidence of guilt is circumstantial it is necessary that it should, to a moral certainty, exclude every hypothesis but that of guilt, is not a rule for determining whether evidence is to be believed or not: it has to do, not with conflicting evidence, but with conflicting inferences which may be drawn from the circumstances. It is trite law that if the trial Judge is of opinion that the evidence could not warrant a conviction he may direct an acquittal. If he does not, but leaves it to the jury and they convict, a Court of Criminal Appeal, if of the same opinion, can and should do what he could have done in the first instance; and this is contemplated by s. 6: R. v. George [2] ; Halsbury's Laws of England, 2nd ed., vol. 9, pp. 167, 168. In this respect, there is no difference in principle between cases where the evidence is in whole or part direct and those in which it is wholly circumstantial" [3] . It seems to me that exactly the same principle was applied by this Court in Peacock v. The King [4] . Barton J. said: - "Whether the fact, or that body of facts which is called the "case" is capable of bearing a particular inference, is for the Court, and unless it is so capable, the Court's duty is to withhold it from the jury, as a single fact or as a case. But when the case is undoubtedly capable of the inference of guilt, albeit some other inference or theory be possible, it is for the jury, properly directed, and for them alone, to say not merely whether it carries a strong probability of guilt, but whether the inference exists actually and clearly, and so completely overcomes all other inferences or hypotheses, as to leave no reasonable doubt of guilt in their minds" [5] . O'Connor J. said: - " can it be said reasonably that the jury were not entitled to draw the inference of guilt against a doctor, charged as the prisoner has been, who will not explain the death of a patient in his hospital, whom he alone was attending, his secret disposal of her body, his burning of her clothes, and his attempt to remove all evidence of her ever having been in his hospital and under his care? They were not bound to draw that inference; another jury might arrive at the opposite conclusion. But I have no hesitation in affirming as a matter of law that the verdict which the jury did find was open to them on the evidence" [1] .

(1936) 66 Can. Cr. Cas. 240. 2. (1938) 70 Can. Cr. Cas. 205. 3. (1943) 79 Can. Cr. Cas. 140. 4. (1945) 85 Can. Cr. Cas. 364. 5. (1925) 25 S.R. (N.S.W.) 451; 42 W.N. 141. 6. (1947) 47 S.R. (N.S.W.) 183; 64 W.N. 44. 7. (1922) 30 C.L.R. 246. 8. (1922) 30 C.L.R., at pp. 255, 256. 9. (1925) 25 S.R. (N.S.W.) 451, at p. 459; 42 W.N. 141. 10. (1908) 25 T.L.R. 66. 11. (1947) 47 S.R. (N.S.W.), at pp. 184, 185; 64 W.N., at pp. 45, 46. 12. (1911) 13 C.L.R. 619. 13. (1911) 13 C.L.R., at pp. 651, 652. 14. (1911) 13 C.L.R., at pp. 670, 671.

It follows that the question now is not whether this Court thinks that the only rational hypothesis open upon the evidence was that the applicant drowned his wife. It is rather whether this Court thinks that upon the evidence it was open to the jury to be satisfied beyond reasonable doubt that the death of the deceased was not accidental but was the work of the applicant. To this question I shall return later when I come to consider what I have described as the third question.

The argument that to prove a person had a motive for doing an act cannot be relied upon to prove that he did the act was also supported by references to persuasive authority - but again I am unpersuaded. The authorities cited were relied upon in the first place to show that the term corpus delicti relates at most to the commission of a criminal act by somebody and does not cover the commission by an accused person of the criminal act charged against him - that is, here, that Fay Irene Plomp had not died accidentally but had been killed, but not that the applicant had drowned her. Had the authorities cited not gone beyond this, they would hardly have assisted the applicant's case, but it was sought to attach this limited meaning to the term corpus delicti as a step towards establishing that it was not until the corpus delicti had been proved that evidence that the applicant had reasons for killing her and had sought to take advantage of her death became material, and some of the authorities cited do give some support to this contention. Thus in Starkie on Evidence, 4th ed. (1853) p. 849 it is stated: - "In criminal cases, proof that the party accused was influenced by a strong motive of interest to commit the offence proved to have been committed, although exceedingly weak and inconclusive in itself, and although it be a circumstance which ought never to operate in proof of the corpus delicti, yet when that has once been established aliunde, it is a circumstance to be considered in conjunction with others which plainly tend to implicate the accused". In Wharton's Criminal Evidence, 12th ed. (1955) vol. 1, p. 332 this is said: - "In prosecutions for homicide, as in criminal prosecutions generally, evidence to show motive is competent and considerable latitude is allowed in its introduction. When proof has been made of the corpus delicti, all facts and circumstances that tend to show motive on the part of the accused are relevant". Similarly, in Halsbury's Laws of England, 3rd ed., vol. 10, p. 440 this appears: - "When a criminal act has been proved and it is desired to connect the accused therewith, it is relevant to show that he had a motive for the act". It may be observed that this last quotation would have to be expanded a good deal to be understood as meaning that motive is irrelevant except to connect the accused with a criminal act proved aliunde. Mr. Campbell also cited a number of American authorities: Baalam v. The State [1] ; Spicer v. The State [2] ; Black v. The State [3] ; and Vancel v. The State [4] . In these cases there are to be found statements which do support the submission and, indeed, which go even further. So, for instance, in the first case cited it is said: "When it is shown that a crime has been committed and the circumstances point to the accused as the guilty agent, then proof of a motive to commit the offence, though weak and inconclusive evidence, is admissible".

(1850) 17 Ala. 451. 2. (1914) 65 Southern Reporter 972. 3. (1939) 128 South-Western Reporter (2d) 406. 4. (1925) 272 South-Western Reporter 130.

Notwithstanding such support as counsel have been able to muster for their submission, I am satisfied that proof of a case cannot be so fragmented. The cause of death, to the exclusion of suicide or accident, is unquestionably part of the corpus delicti, yet proof of this is often inseparably involved with proof that the person who is charged with homicide caused the death. In such a case it could not be maintained that proof of identity must wait upon proof of the corpus delicti. Furthermore, in such a case any evidence to show that an accused person caused the death would be at once evidence of the corpus delicti and an indication of who it was that committed the crime. Indeed, this is just such a case and any evidence tending to prove that the deceased was drowned by the applicant was evidence against him for all purposes of the case. Such evidence - as will appear in greater detail when I come to the third question - included that there were inducements for his killing his wife; that immediately before her death he spoke of her as dead and introduced another woman as her successor, so, it could be taken, manifesting a disposition to kill her; that immediately after her death he sought to take advantage of her death by attempting to marry the other woman; that he lied about his relationship with the other woman and sought to induce her to do the same; and that he gave various accounts of what happened when the deceased was drowned. It hardly needs to be stated that to prove motive for a crime and no more could never be sufficient evidence upon which to convict anyone and it is to this that it seems to me some of the authorities cited are really directed, but, in a case like this, proof of such matters as I have just indicated does bear upon the probability that the applicant killed the deceased. Such proof was therefore admissible and could be used as evidence both that Fay Irene Plomp was killed and that it was the applicant who killed her. To hold otherwise would really involve the absurdity of requiring the jury to be directed that they could not consider the evidence to which I have just referred unless and until they had decided that Fay Irene Plomp was killed by the applicant because, if she were killed, it must have been by the applicant.

In Mutual Life Insurance Co. of New York v. Moss [1] Griffith C.J. said: - "Evidence of motive is of itself, of course, in the nature of circumstantial evidence as to the main question in issue. In considering the conduct of a man, regard is had by Judges and juries to the ordinary conduct of human affairs. When a man does an extraordinary or a wicked thing, there is probably some cause inducing or impelling him to do so, and the more heinous the act is the more important becomes the question of motive. When, therefore, the question for consideration is whether such an act is intentional or not, it is of the highest importance to consider whether the person in question, in the circumstances in which he was placed, had any inducement to form such an intention. On charges of murder sometimes the question is whether or not the accused caused the death, and sometimes whether, if he caused it, he did so intentionally or accidentally. The existence of a motive may tend to show either that the person in question did the act simpliciter, or that he did it intentionally. Such evidence is given on the subsidiary question of probability; and in cases depending on circumstantial evidence the question of probability may be most important" [2] . The statement that "the existence of a motive may tend to show that the person in question did the act simpliciter " is in my opinion sound law because it is sound sense. Similarly, in R. v. Ball [3] Lord Atkinson said: - "Surely in an ordinary prosecution for murder you can prove previous acts or words of the accused to show he entertained feelings of enmity towards the deceased, and that is evidence not merely of the malicious mind with which he killed the deceased, but of the fact that he killed him. You can give in evidence the enmity of the accused towards the deceased to prove that the accused took the deceased's life. Evidence of motive necessarily goes to prove the fact of the homicide by the accused, as well as his "malice aforethought", inasmuch as it is more probable that men are killed by those who have some motive for killing them than by those who have not" [1] . It would be just as unrealistic to treat the presence of a motive for doing an act which, if it occurred at all, was done by the accused as irrelevant to determining whether he did it as to treat the absence of a motive as irrelevant to that determination; yet the absence of a motive is commonly relied upon as a circumstance tending in favour of accidental death as against suicide or in favour of a person accused of a crime. On the positive side in divorce proceedings proof of inclination is often used to establish that advantage has been taken of the opportunity to commit adultery.

(1906) 4 C.L.R. 311. 2. (1906) 4 C.L.R., at p. 317. 3. [1911] A.C. 47. 4. [1911] A.C., at p. 68.

What I have already said disposes of the second matter but here it may be interpolated that, even had I been persuaded of the correctness of the applicant's contention, I would not have come to the conclusion that the verdict here should therefore be set aside for misdirection, because it seems to me that the following direction of the judge who presided at the trial was really in accordance with the applicant's contention before us. His Honour said: - "You must remember that before you can use evidence of motive, there must be a sufficiency in the evidence to establish to you that this death was not an accidental death, to establish to you that he did something in order to get his wife into the water, and having got her there, he wilfully murdered her".

The third matter - that is whether the verdict was unreasonable or cannot be supported by the evidence - remains for consideration. This is not a narrow question and under s. 668E of The Criminal Code Q. a conviction may be set aside on the ground that it is against the weight of the evidence: Raspor v. The Queen [2] . A close examination of the evidence is therefore necessary. The deceased met her death when she was in the sea alone with the applicant at Southport at dusk on 24th February 1961 in front of an hotel with windows facing the sea. There was evidence that the surf was not dangerous and that the deceased was a good swimmer. It seems that there were no eye witnesses and the only accounts of what happened were given by the applicant to various people called as witnesses. Broadly, they were to the effect that, when he and the deceased were in the sea about waist deep in what was called a gutter between an inner and an outer sandbank upon which waves were breaking, he suddenly felt an undertow which swept him from his feet or, in another version, that a wave struck him and knocked him down and he then saw his wife, who was about six feet away from him, "sucked under a wave". He went to her aid but was only able to slip his hand in the shoulder strap of her bathing costume which broke when he was "dumped again" and he lost sight of her. He dived for her in vain and then left the water and ran to a cafe. The evidence of the proprietor of the cafe was that the applicant, dressed in his bathing togs, ran into his cafe at about 7.15 p.m. on 24th February 1961 and kept saying that he had lost his wife in the surf. After a search instituted by the applicant and by the cafe proprietor ringing the police, the deceased's body was found some time later about half a mile south of the place where the applicant said that they had been bathing. When her body was found the bathing costume was hanging down, both straps being unbuttoned. The only mark on the deceased's body was a superficial abrasion on the forehead which could have been caused by contact with the sand. No marks were observed upon the applicant's body. There was medical evidence that the presence of fine froth in her lungs indicated that the deceased had been breathing when she was drowning and that death was due to asphyxia which would probably have taken four or five minutes.

Were what I have just stated the only evidence, I do not think that it would have sufficed to warrant the applicant's conviction for murder, but, as I have already indicated, there was a good deal more and in the course of the application to this Court the other evidence was in general referred to as evidence of motive, although that is hardly an adequate description of it. The effect of the other evidence was that the applicant, despite his statement that he and his wife were "very happily married", was not on good terms with her and that he had on one occasion at least treated her with violence; that he had been concerned about stopping her pregnancy which began in November 1960; that towards the end of January 1961 he had formed an association with a young, single Dutch woman, Herma Koning, with whom he had thereafter been having intercourse regularly; that he had told Miss Koning that his wife was dead and a few days before her death he had introduced Miss Koning to one of his two children as their "new mummy"; that he did not tell Miss Koning about his wife's death on 24th February; that a day or two after his wife's death he had made arrangements to marry Miss Koning which were not carried out because the minister and the Registrar General had refused to perform the ceremony before the inquest into the death of the wife; that he had taken Miss Koning to live in his house as his mistress; that he had lied about their relationship and had sought to get her to lie to the police about that relationship; and that in relation to the inquest into the death of his wife he had said to the minister who was objecting to marry him: - "I am not concerned about the inquest. They can say what they like. The police are perfectly satisfied that the drowning was accidental. I am the only witness to the drowning and if I claim privilege and refuse to give evidence, that is the end of the inquest".

With the evidence I have just summarized in mind, I agree with the Court of Criminal Appeal that there was sufficient evidence upon which the jury, fulfilling their duty not to convict unless the inference of guilt was the only inference which they considered that they could rationally draw from the circumstances, could have convicted the applicant.

I should add that there were other points argued before us upon directions given to the jury by the learned judge who presided at the trial but they were of minor importance and were disposed of at the hearing of the application. Here it is only necessary to refer to one of the matters argued. The customary direction where circumstantial evidence is relied upon to prove guilt, that to enable a jury to bring in a verdict of guilty it is necessary not only that it should be a rational inference but the only rational inference that the circumstances would enable them to draw, was given. It was argued, however, that this direction is something separate and distinct and must be kept separate and distinct from the direction that the prosecution must prove its case beyond reasonable doubt. Notwithstanding that the applicant's counsel did find some authority to support their contention - Reg. v. Ducsharm [1] - that contention is unsound for the giving of the particular direction stems from the more general requirement that guilt must be established beyond reasonable doubt.

For the foregoing reasons the application for special leave should be refused.

I also think this application should be refused, for the reasons that the Chief Justice and my brother Menzies have expressed.

At a glance

Court

Decision date

Before

Source

Judgment (28 paragraphs)

Parties