R v ANDREWS

• 15 - IN THE COURT OF CRIMINAL APPEAL No: 60121/00

HEYDON JA HULME J HIDDEN J

Thursday 6 February 2003 R v Stephen john ANDREWS

Judgment 1 HEYDON JA: I agree with Hulme J that it is not necessary to decide the somewhat difficult issues discussed in [4]-[16], because even if the trial judge erred in one or more of the respects which the appellant alleged, the proviso should be applied for the reasons given by Hulme J. I also agree with Hulme J's observations about sentence, and with his proposed orders. 2 HULME J: On 30 September 1999 the Appellant, Stephen John Andrews, was convicted by a jury of the murder of his de facto wife, Julie Wells Andrews. On 22 February 2000 he was sentenced by Ireland J to imprisonment for a period of 21 years including a minimum term of 16 years both of which periods commenced on 24 December 1997, the date of her death and his arrest. 3 At the Appellant's trial there was no dispute that he had killed his wife by firing shots from a .22 calibre rifle. Two bullets entered her brain and another two bullets were fired. In issue was the question of his intent. It was argued that in light of, inter alia, evidence of the Appellant's ingestion of alcohol and a drug Zoloft, and expert evidence as to their effect, the jury could not be satisfied that at the relevant time the Appellant had an intent to kill or do grievous bodily harm. The Crown sought to pray in aid of its case, evidence of the Appellant's movements on the night and what it describes as evidence of motive, that being jealousy on the part of the Appellant. 4 Evidence falling within this latter category, and to which exception is taken in the appeal, consisted of the following:- (i) Evidence from Alison Andrews, a daughter of the Appellant and deceased who said that on the night of 2 November 1997, at a wedding, another man showed an interest in the deceased, the Appellant "got angry" and a fight occurred between the Appellant and that man which was broken up by Mr Withers. The deceased's mother, Mrs Hawken, gave evidence of having been told by the deceased that on that occasion the deceased started a fight about her. (ii) A Mark Munro gave evidence of social contact with the deceased in 1994 at a time when she and the Appellant were separated. Some months, and it may have been a substantial number of months, after having first met the deceased the Appellant approached Mr Munro in the driveway of his home and said, inter alia, "I am the husband of the sheila you are rooting" and "Don't let it happen again or there will be buckets of blood flowing". (iii) Mr Munro also said that a few days later the Appellant approached him at a bank and on this occasion said, "If that ever happens again, there is going to be blood everywhere." (iv) Mr Munro then recounted an incident which occurred on Anzac Day 1996. He was in the toilet of the Toronto Workers Club. The next thing he remembered was that he was standing, looking down at the floor and noticed a deal of blood on the floor. The blood was coming from a scalp wound and his left side lip was gashed badly over a distance of about 2 inches. Later that night he accused the Appellant of being a "weak king hitting bastard", a club bouncer told the two to "take it over there if youse want to do anything" and while Mr Munro was going "over there" the Appellant hit him from behind and a fight ensued. (v) Mr Withers, a son-in-law of the deceased gave evidence that on the occasion in the Worker's Club, he had gone into the toilet and seen Mr Munro on the floor. When he asked what happened, Mr Munro had said "Stephen Andrews got me from behind". Mr Withers said that later, when he spoke to the Appellant he confirmed the attack. (vi) Mr Withers gave evidence also of a friend of his and Mr Munro's, a Mr Desreaux, saying to Mr Andrews that as he had "done my mate in the toilet, I would like you to come outside", that Mr Andrews did so and of an altercation occurring in the car park. 5 No objection was taken to this evidence when it was given. The trial had commenced on 16 September 1999. Ms Andrews and Mrs Hawken's evidence was given on 17 September, Mr Withers' was given on Monday 20 September, and Mr Munro's on the 22nd. Cross-examination of Mr Munro was, in effect, limited to obtaining confirmation from Mr Munro that he had not felt the blow in the toilet and that his statement to the police was not made until 27 February 1998. There was no re-examination and then, in the absence of the jury, counsel appearing for the Appellant said:- "Your Honour, in respect of Mr Munro's evidence it is my submission that the Crown, by leading that evidence has raised bad character of the accused , and indeed that he has committed offences in the past, those offences being assault or matters of violence, and it is my submission that with reference to that, it is my submission that the jury should be discharged." 6 The Crown Prosecutor responded by saying that the Crown had opened to the jury that the crime was one of jealousy and obsession, that the evidence went to "that very issue, his attitude to his wife and his attitude to people and her relationships or friendships with other people" and that in service of the Crown brief, notice of the evidence had been given. 7 His Honour dismissed the application to discharge the jury. In doing so he observed:- "the purpose of adducing this evidence by the Crown is in support of the contention that the Appellant was jealous of the deceased and of any relationships she may have had with other men". 8 His Honour also observed that the basis of the application for discharge was that bad character had been raised and that, as it was contained in the brief served by the Crown and not objected to, the application was refused. 9 The principal ground of appeal against the Appellant's conviction is that the evidence in paragraphs (ii) to (v) above was irrelevant, and if led to prove the Appellant had a jealous and violent disposition, was tendency evidence. If so, it should not have been admitted because:- (a) no notice under s99 of the Evidence Act and the regulations made thereunder had been given, (b) it did not satisfy the requirement in s101 that "the probative value of the evidence substantially outweighs any prejudicial effect if may have on the defendant", (c) it did not satisfy the requirement laid down by the High Court in Pfennig v R (1995) 182 CLR 461 that, in order to be admitted, there was a "necessity to find something in the evidence or in its connection with the events giving rise to the offences charged which endows it with a high level or degree of cogency", and (d) it did not satisfy the requirement laid down by the High Court in Pfennig v R (at 481) that it "bears no reasonable explanation other than the inculpation of the accused in the offence charged". 10 His Honour's decision was also criticised on the basis that he did not turn his mind to ss 97, 101 or 137 of the Evidence Act. 11 The admission of the evidence referred to in paragraph (i) was said to lack the degree of probative force necessary for its admission, it did not show how angry the Appellant got, the sort of fight or what the other man might have done to incur the Appellant's ire. There was nothing to show any link between the deceased's death and the incident and its prejudicial weight was likely to have outweighed any probative value. It was said that this evidence also was not the subject of a notice under s99 of the Evidence Act and this was a precondition of admissibility. Reliance was placed on an observation of Kirby J, with whom at least Priestly JA agreed, in AN (2000) A Crim R 176 at 186-7. 12 The contention of the Crown was that the evidence was not "tendency" evidence but was directed to showing the relationship between the deceased and the Appellant and thus admissible and reference was made to Wilson v R (1970) 123 CLR 334 and R v Serratore (1999) 48 NSWLR 101. The Crown did not attempt to justify the admission of the evidence if it was, within the terms of s97, tendency evidence. 13 For my part, I think there is much to be said for the view that the evidence was evidence tendered to prove that the Appellant had a tendency to have a particular state of mind. To say, as the Crown did, that the motive was jealousy carries with it the implications that the Appellant was jealous and, by reason of the nature of the emotion, the implication that he had a tendency to be jealous, to be, in the words of the Oxford English Dictionary, "troubled by the belief, suspicion or fear that the good which one desired to gain or keep for oneself has been or may be diverted to another … apprehensive of being displaced in the love or goodwill of some one; distrustful of the faithfulness of wife, husband, lover". Indeed so much is suggested by Ireland J's statement, made when ruling that the evidence was admissible, and which I have quoted above. 14 But there is also much to be said for the view that if, as seems to be the case, the substance of the evidence objected to was included in the Crown brief when it was served, then the notice requirements of Part 3.6 of the Evidence Act were met. Section 97 requires only that there be "reasonable notice in writing… of the party's intention to adduce the evidence" and although s99 with its requirement of adherence to the terms of the regulation 6 of the Evidence Act Regulations, requires particulars of, "(i) the date, time, place and circumstances at or in which the conduct occurred, and (ii) the name of each person who saw, heard or otherwise perceived the conduct, … so far as they are known to the notifying party"

commonly a Crown brief will provide this information also. 15 Nothing was put before this Court to show that the notice in this case was insufficient. 16 However s97 also requires that if the evidence to which it refers is to be used to show tendency, it must have "significant probative value" and s101 requires that that probative value "substantially outweigh any prejudicial effect it may have on the defendant". The effect of these provisions, and whether they are to be interpreted in accordance with their natural meaning or in accordance with what the High Court said in Pfennig v R (1995) 182 CLR 461 is by no means clear - see the discussion in Odgers Uniform Evidence Law 4th ed, para. 101.6, my own remarks in R v Leask [1999] NSWCCA 33, the remarks of Hidden J and myself in R v Le [2000] NSWCCA 49 and R v OGD (No 2) (2000) 50 NSWLR 433 at [45] et seq. - and in the absence of full debate it is inappropriate to embark upon further consideration of these issues unless it is necessary to do so. It is not. For the evidence adduced against the Appellant was overwhelming and it is clearly a case where, if his Honour was in error in admitting the evidence, the proviso to s6 of the Criminal Appeal Act should be applied.

The Proviso 17 It may be acknowledged that, although there was a significant issue as to the timing of all of his drinking, there was undoubtedly evidence that the Appellant consumed a substantial quantity of, and was appreciably affected by, alcohol on the night of 23-24 December. He had started in the afternoon of the 23rd. Breathalyser readings were taken at 5.45 am and 7.20 am on 24 December and were .225 and .180 respectively. There was a deal of evidence as to what might or would have been the level at other times but indicative, and not unfair to the Appellant, is that of Dr Perl. According to Dr Perl those readings indicated that the Appellant's alcohol elimination rate was .028 grams per 100 ml of blood per hour and that if the Appellant had stopped drinking at 12.30 his blood alcohol reading at 1am would be. On the assumption that he had continued drinking after 1 am, his reading at that time would have been lower. 18 The possibility was raised that the Appellant had also ingested Zoloft and there was evidence that there was some interaction between alcohol and Zoloft. 19 Dr Starmer, called on behalf of the Appellant, gave evidence that at blood alcohol levels of the order of .36, judgment, reasoning and memory are likely to be severely impaired. Dr Perl, called by the Crown, gave evidence that at even .2 she would expect a person's judgment, reasoning and memory to be impaired. At .3 to .349 Dr Perl would have expected in addition impaired appreciation of the consequences and cognitive and motor impairment. However both experts agreed that the more alcohol tolerant the individual, the less the impairment would be. The Appellant was very tolerant. Dr Starmer agreed with the proposition that "whatever we work out the readings to be at any particular time, the real test is the objective signs of what an individual does and can do". 20 The high point of the Appellant's case however was probably the evidence of a psychiatrist, Dr White, who said that it was possible that a person whose blood alcohol level was .3 or higher might be incapable of forming the intention to cause death or grievous bodily harm. 21 But it is necessary also to consider the evidence of what occurred. The Appellant and the deceased had had a de-facto relationship for some 22 years, albeit in the last 10 or so years that relationship had been marked by periods of separation. Whether "separated" or not, they were not living together for some period prior to 23 December 1997. It is clear, even without the evidence which is subject to objection in this appeal, that the Appellant was jealous of anything that might be a relationship or perhaps even friendship between the deceased and another male. It is also clear that shortly before her death the Appellant wished to reinstate, maintain or extend the relationship he had had with the deceased. In that connection he had bought an engagement ring for her. However the deceased had commenced a friendship with another man. The Appellant said that he became aware of that other man about a week before the deceased's death. He agreed that he had been off his food for about 2 weeks prior to 24 December "Because of Julie and some other factors too". Asked "What about Julie?" the Appellant replied that he had heard she was seeing somebody else. The Appellant's mother, with whom he was living immediately prior to 24 December said that he wasn't eating or sleeping and was depressed and she was concerned about him. 22 As has been said, in the afternoon of 23 December, the Appellant began drinking. At some time late in the night of 23 December 1997, the Appellant told his mother that he intended to go out to obtain some cigarettes. 23 At about 1.00 am in the morning of 24 December, a Mrs Hunter who lived in the same street as the deceased, albeit some distance away, heard 4 shots. A Mr Wilkes who also lived in the street but closer also heard 4 shots sometime after midnight. Four spent cartridges were found in the deceased's bedroom where she had been shot. 24 At 2.37 am that morning the Appellant rang his mother and said, "I've got my cigarettes. I'm just going to sit in the park for a while". She thought the Appellant sounded tired but calm. 25 At 3.04 am there was a phone call from the deceased's residence to Toronto Police station, the caller being a then unidentified male. The conversation flowed without any gaps and Constable Crowley who took the call had no difficulty understanding the caller. The conversation was in terms:- Male: "Mate, you had better get the police up to 156 Syke Point Road. There's been a fatality." Police: "Have you had an accident?" Male: "No. I have just shot my wife and killed her. You had better get up here." 26 At 3.22 am there was another call from the deceased's residence to Toronto Police station, again from a then unidentified male. This call was taken by Senior Constable Crowe and the conversation was as follows:- Male: "Do you know about the shooting at 156 Syke Point Road?" Crowe: "I know something about it." Male: "When are the police getting here?" Crowe: "They are on their way." Male: "Good. She's dead. I killed her. Come and get me and take me away."

Crowe: "Why did you do it?" Male: "She was mucking around."

Crowe: "Mate, what's your name?" Male: "Steve." Crowe: "Have you got the firearm with you?" Male: "Yes." Crowe: "Look, why don't you put the gun outside the front door and wait for the police." Male: "Yeah, I'll do that." Crowe: "Before you go, have you a telephone number there?" Male: "597762." 27 Constable Crowe formed the opinion that the male had been drinking or taking a substance but did not form any opinion as to the degree to which the male was affected. Constable Crowe did not think the male had any difficulty in understanding nor was there any delay between the constable's questions and the responses except there was some slight hesitation before the last answer. 28 When police arrived at about 4.18 am they found the Appellant seated on a chair slumped over a table with his head resting on his arms. The deceased was found in a bedroom lying between the bed and a wardrobe. There were 4 bullet entry wounds. One was over the right temple. One was behind and above the left ear. A third was on the rear of the right shoulder. The fourth was on the nail side of the right thumb. The ballistics expert who gave evidence suggested that the one bullet may have passed though the thumb and then entered above the right temple. There was also a 80 by 40 mm lacerated wound in the top of the deceased's head, consistent with being struck with a rifle. It was conceivable, but it would be remarkable, that the deceased might have struck her head while falling. 29 The Appellant's car was found locked and parked in an area of parkland some distance away from 156 Syke Point Road. The summary of the evidence and Crown submissions on the application of the proviso said that the distance between the two was 150-200 metres but the evidence of Sergeant Chaffey was that it was 600 metres by road and, for anyone walking from the park to the front of the house at 156 Syke Point Road, involved a steep incline. Both the parkland and the unit occupied by the deceased at the rear of 156 Syke Point Road were on the waterfront of Lake Macquarie. The distance between the two along the waterfront was measured to be about 500 metres. This route was uneven, there was no path, and the waters of the lake were, at times quite close. When the Appellant's shoes were taken from him on 24 December, the grooves of them contained material which, in evidence which was not objected to, Sergeant Chaffey "hazarded a guess" was decayed seaweed or sand grit, material which he had observed along the shoreline. When asked, the Appellant said that while he did not remember, he presumed that he walked from the park to the deceased's premises along the shoreline on the night of 23-24 December. 30 When visiting, or living at that unit with the deceased, it had been the Appellant's practice to park outside, or in the driveway of, 156 Syke Point Rd. The Appellant suggested that there must have been a reason - perhaps congestion - for him not parking there that night. 31 In a plastic bag in the boot of the Appellant's car were found 5 boxes labelled "Winchester Power Point". Four contained bullets and a fifth was empty. 32 When the Appellant was searched, .22 calibre bullets were removed from the money pocket of his jeans. They were removed by an ambulance officer who estimated their number to be about a dozen and handed them to Constable Pitt who said he counted them and there were 27. The Appellant said he could give no explanation for the bullets in the boot of his car and that there were none in the coin pocket of his jeans prior to his arrival at the park where his car was found. Later he suggested that the police might have put the bullets in the car. 33 The bullets in the car and in his jeans were both .22 calibre Winchester copper washed hollow point bullets. Two of the bullets apparently recovered from the deceased were of the same description. Other fragments could not be identified. 34 The weapon from which the bullets which killed the deceased were fired was a .22 calibre sawn-off self-loading rifle. It was found in about 3 metres of water about 20 metres from the end of a jetty belonging to 156 Syke Point Road. The jetty itself was something under 20 metres long, about a metre wide in parts and without hand rails. 35 It was common ground that the Appellant owned the rifle with which the deceased had been killed. On the Crown case the Appellant had taken the weapon to the deceased's premises on the night she was killed although there was no direct evidence of that. The Appellant gave evidence that he had cut the end off the barrel some time previously because it was bent and had taken the remainder of it to the deceased's premises some time after 1 November. The Appellant said that the rifle was then in 2 pieces which clicked together like a light socket. At that time he put the pieces on top of a cabinet behind some stuff in the boatshed. He thought that there were probably then some bullets in the magazine in the rifle. Elsewhere the Appellant said that he had bought the rifle for $100 about 12 months earlier but had never fired it. He also put bullets in the boatshed at the same time. Some may have been in a drawer and some in a container on a shelf. 36 After the shooting the police found in the boatshed a number of items. One was a black bag containing, inter alia, a mobile phone and a card of Zoloft 50mg tablets. The Appellant acknowledged that the phone, and at least implicitly, the black bag were his, but said that he could not remember taking the black bag from the car. 37 There was also evidence from Detective Roach, a ballistics expert, that the firing of the rifle involved pulling back on a lever to move a round from the magazine into the firing chamber, moving or having a safety catch in the fire position and pulling the trigger. Each further shot required the release and a further pull of the trigger. 38 The tenor of the Appellant's evidence was that he could not remember much of the events of the night. He said that he was not sure but he did not think he went into the boatshed on the morning of 24 December. He could not remember having a firearm in his possession that night. 39 Except where I have expressly adverted to the fact or a difference in accounts, none of the evidence to which I have referred was challenged. It leads irresistibly to the conclusion that the Appellant either took the rifle to the premises that night or assembled the rifle that was already there. He also either took ammunition to the premises or, having arrived, armed himself with it. Then with the rifle and ammunition he went into the deceased's bedroom and fired four separate shots, having at some time levered a round into the breech. Both the extent of his activities prior to entering the deceased's bedroom, and his actions in firing the four shots, are quite inconsistent with the suggestion that he was not capable of forming any intention to kill or inflict grievous bodily harm upon the deceased. And if he was capable of forming such an intention, his actions lead equally irresistibly to the conclusion that his intention was to kill. 40 In supplementary submissions made on behalf of the Appellant, it was contended that the evidence of the shot through the deceased's thumb, and of other injuries upon her, provided an indication, or were consistent with a struggle having occurred and permitted of the conclusion that the fatal shot and the later ones may have been occasioned without any intention to kill or do grievous bodily harm. It is an almost sufficient response to say that any such suggestion was not raised at the trial but against the background of the Accused's preparations, the location of the shots - 2 on opposite sides of the deceased's head and one in her back - and his statement to Constable Crowe that he shot her because "she was mucking around", the suggestion is fanciful. 41 For these reasons I would dismiss the appeal against conviction.

Sentence 42 I turn to the application for leave to appeal against sentence. As has been said the Appellant was sentenced to imprisonment for 21 years including a non-parole period of 16 years. It was submitted that as the Appellant was 47, had no relevant criminal history, and his Honour found that he was unlikely to re-offend and that he imposed a minimal threat to the community, the offence amounted to an isolated aberration. Prior to the event the Appellant was depressed, not sleeping or eating and the offence was one which arose out of an emotional situation and when the Appellant was affected by alcohol. It was pointed out that the majority of murder sentences are of 18 years or lower and that those arising in consequence of emotional attachments tend to fall in the lower half of the range. 43 I can accept all of the propositions in the immediately preceding paragraph. However, there are some other features to which Ireland J referred in his remarks on sentence:- "The evidence in the case makes plain that there was a degree of planning and forethought on the part of the prisoner and that his ingestion of alcohol to a significant degree took place after the shooting of the victim. … The prisoner's response to this situation when the victim and her daughters made it clear that his relationship with the victim was over, was to brutally and callously take her life to ensure that if he could not have her then no-one else could. This is not a case where the clear motive is by any means to be seen as a mitigating factor. R v White (unreported, CCA 23 June 1998); R v Wright (1997) 93 A Crim R 48: R v Engert (1995) 84 A Crim R 67 The gravity of the offence of murder, viewed objectively, places it at the head of the criminal calendar. The aggravating features are the degree of planning to which I have referred, the brutal and callous shooting of a defenceless woman in her home (an aggravating feature by itself: R v Previtera (1997) 94 A Crim R 76) and the determination of the prisoner to ensure the death of the victim by multiple gunshot wounds, including one to each temple region. The prisoner's prior good character stands alone in his favour." 44 It must not be forgotten that the offence of which the Appellant was convicted carries a maximum sentence of life imprisonment. Many would say that, compared with what the Appellant inflicted on the deceased, he has been treated leniently. But I do not need to embark on such comparisons. Ireland J was quite entitled to make the findings and to take the views he expressed in the passages I have quoted and the sentence imposed was well within the legitimate area of his Honour's sentencing discretion. 45 Accordingly, while given the length of the sentence I would grant leave to appeal against it, I would dismiss the appeal. 46 HIDDEN J: I agree with Hulme J that, whatever be the merit of the ground of appeal argued, the appeal against conviction should be dismissed by the application of the proviso. 47 However, I would have allowed the appeal against sentence. As I am aware that I am in the minority, I shall be brief. Given the circumstances of the crime, the appellant's age and background, and the sentencing judge's finding that he is unlikely to re-offend, I am satisfied that a sentence of twenty one years is excessive. 48 In so saying, I am mindful of the serious aspects of the case identified in the passage from the remarks on sentence set out in Hulme J's judgment. These features do distinguish the matter from any cases of killing in an emotionally charged domestic setting. It is unnecessary to specify the sentence which I consider was appropriate. It is sufficient to say that no more was called for than a head sentence in the order of eighteen to nineteen years and a non-parole period of the order of fourteen years.

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