R v DAN

SUPREME COURT OF QUEENSLAND

CITATION: R v DAN [2007] QCA 66

PARTIES: R v DAN (appellant)

FILE NO/S: CA No 174 of 2006 / SC No 779 of 2005

DIVISION: Court of Appeal

PROCEEDING: Appeal against Conviction

ORIGINATING COURT: Supreme Court at Brisbane

DELIVERED ON: 9 March 2007

DELIVERED AT: Brisbane

HEARING DATE: 9 February 2007

JUDGES: de Jersey CJ, Williams and Holmes JJA / Separate reasons for judgment of each member of the Court, Williams and Holmes JJA concurring as to the orders made, de Jersey CJ dissenting

ORDER: 1. Appeal allowed / 2. New trial ordered

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES INVOLVING MISCARRIAGE – MISDIRECTION AND NON-DIRECTION – the appellant was convicted of murder – the case against him was wholly circumstantial – the trial judge failed to give specific directions about crucial pieces of evidence and the use that could be made of such evidence – where the circumstances of the case required the judge, in summing up, to present competing case theories with relevant evidence – where the hypothesis of death by natural causes had to be excluded beyond reasonable doubt – where jury had to be satisfied on the evidence of an intention to cause death or cause grievous bodily harm – whether there has been a miscarriage of justice – whether a new trial should ensue / Criminal Code Act 1899 (Qld), s 296, s 302 / Bromley v The Queen (1986) 161 CLR 315, distinguished / Burns v The Queen (1975) 132 CLR 258, considered / Edwards v The Queen (1993) 178 CLR 193, cited / Peacock v The King (1911) 13 CLR 619, cited / Royall v The Queen (1991) 172 CLR 378, cited / Ryan v The Queen (1967) 121 CLR 205, considered / R v Ciantar [2006] VSCA 263, considered / R v Huebner; R v Maher [2004] QCA 98, CA No 291 of 2003, CA No 301 of 2003, 6 April 2004, considered / R v Onufrejczyk [1955] 1 QB 388, cited / R v Rice [1996] 2 VR 406, considered / R v Ryan [1906] St R Qd 15, considered

COUNSEL: P E Smith for the appellant / R G Martin SC, with D R MacKenzie, for the respondent

SOLICITORS: A W Bale & Son for the appellant / Director of Public Prosecutions (Queensland) for the respondent

de JERSEY CJ: The appellant was convicted by a jury of the offence of murder. The charge was that he murdered D at Brisbane, or elsewhere in Queensland, between 12 and 17 December 2003. He appealed against that conviction on the ground the prosecution did not, beyond reasonable doubt, exclude a reasonable inference that D died from natural causes.

In an amended notice of appeal, the appellant abandoned that ground. The grounds pursued are that the conviction is unsafe; that the learned Judge failed adequately to direct the jury on s 296 of the Criminal Code, and on the evidence relevant to intent; that the Judge failed to warn of the danger of acting on the evidence of Ms W and Mr B; that she failed adequately to summarize the defence case; and that she failed to warn the jury that they could rely on confessional type statements only if satisfied that what was said was true.

The prosecution case, which was circumstantial, was that the appellant murdered the deceased to facilitate the appellant’s access to the deceased’s money. At the commencement of the trial, the appellant pleaded guilty to two counts of dishonestly using the deceased’s credit cards, in each case drawing more than $5,000. (The total amount dishonestly withdrawn was $33,790.69.)

Another aspect of the prosecution’s case on the count of murder was that the appellant transported the deceased’s corpse in the deceased’s own vehicle to its resting place in Beerburrum State Forest, and subsequently on 16 December 2004 burnt that vehicle at Yatala. At the commencement of the trial, the appellant also pleaded guilty to that count of arson.

The evidence

The learned trial Judge comprehensively and accurately summarized the evidence in the course of her summing-up, covering pages 406 to 440 of the record. What follows is an abbreviated summary of that.

Ms W was in a relationship with the appellant from 2001 to 2003, and stayed from time to time at the deceased’s unit. The deceased was a 73 year old man, and the deceased and the appellant were friends and housemates. Ms W observed the appellant “boss” the deceased around. Ms W and the appellant were heroin addicts. One day in the absence of the deceased, the appellant took the deceased’s cheque book and forged the deceased’s signature, and gave the cheque to Ms W to cash. Her subsequent attempt to do so failed, and she was charged by the police with an offence.

Shortly after that, the appellant and Ms W learned that the deceased was selling his unit, and intended renting accommodation thereafter. The appellant raised a number of ways of getting his hands on the proceeds of sale of the deceased’s unit. He mentioned them to Ms W. They were: intimidating the deceased by a “boot ride”; bashing the deceased to secure his PIN numbers; strangling the deceased; killing the deceased; taking the deceased to a secluded area and burning him in his car, or dumping his body and keeping the car. In the course of this the appellant mentioned the Beerburrum State Forest, and suggested that an area behind the brewery at Yatala would be a good place to dump or burn the car. Also, the appellant knew the deceased was a diabetic, “so if you held the insulin out on him he would die”.

The deceased sold his unit in May 2003. In that month, the appellant moved back in with Ms W. The following month, Ms W moved in with a new partner, RH, at Bethania. In December, Ms W and RH were living in Townsville.

In early December 2003, the deceased purchased a mobile home, with the intent of living in New South Wales. His niece GL, and her husband, lived there. The deceased intended first spending a few days in Longreach. His train bookings covered the period 13 to 18 December 2003. The deceased did not make that journey.

The deceased suffered from type one diabetes, and was subject to an insulin regime. He kept a diary recording his blood glucose levels. The last entry in the diary, which was a good reading, was for Friday 12 December 2003. His general practitioner, Dr H, said that when he last saw the deceased in October/November 2003, his diabetes was well under control and there were no cardiac danger signs. (The deceased had possibly suffered a heart attack in 1998/1999.) A forensic scientist/pharmaceutical chemist, Dr G, gave evidence that the deceased’s diabetes was very well controlled.

On Friday 12 December 2003, the appellant and Ms O checked into the Kedron Palms Motel, sharing heroin and sexual relations. The appellant had earlier made the reservation. That afternoon, the deceased withdrew $800 from his ANZ account and $400 from his Commonwealth Bank account. On the first on those occasions, he was accompanied by a younger man, identified by the bank manager as RH. RH was then, as I have mentioned, in Townsville, and the jury presumably concluded that was a mistaken identification.

On Saturday morning 13 December 2003, the deceased, who had that night slept in the motel foyer, asked the motel manager for directions to the appellant’s room, and went there. The appellant and Ms O extended their reservation at the motel by another night.

On Sunday morning 14 December 2003, the deceased again went to the appellant’s room. The appellant and Ms O were then staying at a hotel opposite the BP service station at Hamilton. Ms O said that she prepared coffee and cereal for the deceased. During the ensuing day, on Ms O's evidence, she and the appellant, together with the deceased, drove around in the deceased’s car, withdrawing money from a number of ATMs. In his interview with police officers on 2 March 2004, the appellant said that the deceased had a slice of pizza that evening, then became unwell. Telephone records suggest the pizza was ordered at about 5.30 pm.

The appellant told the police that he then offered to take the deceased home. On the way home, on the appellant’s account, the deceased was coughing and spluttering and then slipped into unconsciousness. His colour turned blue. The appellant said that “being on heroin” he, the appellant, panicked. He did a u-turn on the highway, missed the exit to the Princess Alexandra Hospital, got to the vicinity of the Royal Brisbane Hospital, could not feel a pulse in the deceased who by this time had turned purple, and thought the deceased was dead. He did not take the deceased into the hospital because, according to his statement to the police, “the hospital would ask too many questions”.

The appellant told the police that he drove to Fortitude Valley and met up with an acquaintance J (a heroin dealer), who said not to worry, that he would fix it. The appellant said that he and J, at about 11 pm, drove the deceased’s vehicle to Beerburrum State Forest where J dragged the corpse from the car and abandoned it. (They had some heroin at Lutwyche on the way.) According to the appellant, J dropped the appellant off at the hotel, and subsequently told the appellant that he had burnt the car: it was the prosecution case that in claiming those things (that J dropped him off, took the car, and burnt it), the appellant was lying. The appellant’s claims were contradicted by evidence from Ms O and Ms M to which I will shortly come, and it is the fact that the appellant, at the commencement of the trial, pleaded guilty to the arson of the vehicle.

There was evidence of six withdrawals or attempted withdrawals using the deceased’s MasterCard between 9 pm and 9.30 pm on Sunday 14 December 2003.

The appellant said that he went back to the North Coast a couple of days later to make sure the deceased was in fact dead.

Ms O gave evidence that the appellant arrived back at the hotel, alone, in the early morning of Monday 15 December 2003. There was evidence of two withdrawals each of $500 from the deceased’s accounts at about 2 am from ATMs near the Hamilton hotel. Later Ms O saw the deceased’s car outside the hotel, and it was muddy, as if it had gone over a dirt track.

The appellant and Ms O met up with Ms M, and the three of them went to Petrie, early on Tuesday 16 December 2003, in the deceased’s vehicle, and purchased a Ford Falcon vehicle for $3,000.

Ms M said that she and Ms O then went in the Falcon to the area of the brewery off the Pacific Highway on the way to the Gold Coast, near Yatala, with Ms O driving, while the appellant drove the deceased’s vehicle to the same location. He then drove the deceased’s vehicle down a track beside the brewery. Ms O's evidence was that the appellant proceeded to burn the car. Ms M said that when the appellant returned to where she was, he confirmed that he had burned the deceased’s car, and then they drove back to Ms M’s place. (Having received information from Ms O, police officers located the deceased’s burnt out car, at Yatala, in late April 2004.)

There were numerous withdrawals from the deceased’s accounts over following days.

On 21 December 2003, a police officer went to the deceased’s unit, in the course of investigating his disappearance, and saw a note on the door reading: “Friday 19th. Don, could you please ring me when you get in because I’ve been trying to call you for ages. My new mobile number is 0422 367 037. Thanks mate, [DAN].” [DAN] is the appellant’s first name and that was his mobile number. There was no evidence identifying the handwriting. The prosecution contention was however that if the jury inferred the appellant posted that note on the door, its content went to his credibility because he knew by then of the death.

There was evidence of various statements subsequently made by the appellant which the jury could have regarded as incriminating. For example, while the appellant and Ms O were staying at Ms M’s house at East Brisbane, Mr A was also there for a while. Mr A gave evidence that in the course of a conversation, the appellant asked him: “Would you help me bury a body up the North Coast?” Mr A said that he did not think the appellant was speaking seriously.

Mr B said that in the course of a conversation about his use of violence on a person who had extorted $300 from a prostitute they knew, Mr A told Mr B that he should have killed the man, to which the appellant responded: “The last time I done that I had to dump them in the bush”. Mr B, again, did not think the appellant was being serious.

On 6 January 2004, Ms O was apprehended by police officer in possession of the deceased’s credit cards, hidden down the front of her pants. She subsequently, in conversation with the appellant, expressed consequent concern about her own position. There had in the meantime been a newspaper report about the deceased’s disappearance, which she and the appellant had seen. She asked the appellant: “Where did you dump the body?” He said not to worry, that it could not be found. That conversation was recorded on a listening device covertly installed by the police in the appellant’s vehicle.

At a time – 2 March 2004 – when Ms O was, with her agreement, covertly wired to record sound, she asked the appellant where the body was. He said: “It’s buried”, going on to say that he took it out there, but that he did not bury it, that he did not dig the hole.

On 3 March 2004, in the course of the police investigation, the appellant took police officers to a heavily wooded area in the Beerburrum State Forest, where he said the deceased’s body had been dumped. The deceased’s skull and some bones (together accounting for a substantial proportion but not all of the skeleton) were found. Wild dogs inhabited that area. The pathologist Dr L detected no drugs or bone crushing injury. As to the cause of death, he ruled out skull fracture or stab wounds into bones. He could not exclude strangulation, hypo or hyper glycaemic attack, stabbing not hitting a bone, heart attack or stroke.

It remains in this brief summary of the evidence to mention some of the specialist opinion. I have referred already to the appellant’s diabetic condition, to the evidence that he kept it under control (though there was evidence of attacks, and gaps in his diary), to his having suffered a possible heart attack in 1998/9, and recently, to the evidence from the pathologist Dr L who could not exclude death by natural causes.

Dr G, the forensic scientist/pharmaceutical chemist, watched the video recording of the police interview of the appellant. Dr G accepted that what the appellant claimed as to the deterioration in the deceased’s condition was possible (essentially, that the deceased fell into a diabetic coma), but he doubted it would have occurred as speedily as the appellant appeared to suggest. Dr G put the onset of diabetic ketoacidosis leading to coma as covering three to four days, not the approximately two day time frame emerging from the appellant’s account.

Dr G said the claimed change in the deceased’s colour would suggest cardiac or respiratory problems, not diabetes.

Dr G said that if the deceased had not eaten from 10 pm Friday through to about the same time on Sunday, his blood sugar level would have risen and he would be feeling very unwell. He said this:

“An untreated diabetic who has no insulin or no access to insulin or is not using his insulin who allows the blood sugar to get to a particular point, he will go into a coma and, without resuscitation, he will die. Even with resuscitation in hospital, even with treatment, timely treatment and the best circumstances, five per cent of people still die. One hundred per cent will die without treatment.”

There was however evidence as to the availability of food, and some consumption by the appellant, over that period; and the deceased was not in the company of Ms O and the appellant, the sources of that information, continuously throughout that period.

The appellant did not give or call evidence at the trial.

The way the case was left to the jury

It was, as I have said, substantially a circumstantial evidence case, and the Judge instructed the jury accordingly.

As to responsibility for the death of the deceased, Her Honour said these things in her direction to the jury:

“It’s for the prosecution to prove that he did not die of natural causes, that it was Mr DAN who killed him, and with the intention of killing him or doing him grievous bodily harm.…

…

For the defendant to have killed D it is enough that he did an act that was a substantial or significant cause of death or which substantially contributed to it. If, at the time, D was already suffering from a disorder or disease for which Mr DAN was not himself responsible, it is enough that the defendant, Mr DAN, did an act which hastened the death of D. Now, there is, of course, evidence D had diabetes and a possible heart condition.…

Any person who causes the death of another, directly or indirectly, by any means whatever, is deemed to have killed that other person. In that regard, it doesn’t matter if the death didn’t immediately result. If the actions of the defendant led to injury to the deceased, which, in the ordinary course, resulted in his death, then, in law, he is responsible for that death. The actions of the defendant need not have been the only contributing cause of death. However, the defendant’s act must be a substantial or significant cause of death or have contributed substantially to the death.”

The prosecution was not able to establish any particular conduct on the part of the appellant as having caused the death of the deceased. The prosecution sought rather to establish that the only reasonable inference to draw from all of the evidence presented was that the appellant, by some means or other, killed the deceased, and with the requisite intent. That involved, of course, excluding the prospect that the deceased died from natural causes. While the pathologist Dr L could not exclude that, on the basis of his examination of the incomplete skeleton, the prosecution relied on the aggregation of other circumstances summarized above as excluding that possibility beyond reasonable doubt.

As to the defence position, in the course of her summary of the evidence, the Judge mentioned defence Counsel’s responses to various positions adopted by the prosecution. For example, she reminded the jury that the prosecution contended that the jury should infer that the appellant’s dumping of the deceased’s body and the burning of his motor vehicle were consistent with his having in some way or other killed the deceased; whereas the defence submission was that those actions were consistent with the appellant’s “being on heroin and panicking after D died of natural causes”.

Her Honour also reminded the jury of the content of the appellant’s statements to the police during the interview, including the following passage which she re-read:

“Don wasn’t looking too well and I said, ‘well, listen, man, I’ll drive you home, get your medication.’ We were on our way back to Woodridge, got to the Gaza Road exit and he started coughing and fucking spluttering and, umm, I don’t know, he just slipped into unconsciousness, mate. I done a u-turn through the highway and, umm, started to head back to the hospital, but he was blue. Umm, from there on, or, being on heroin, I panicked, didn’t know what to do, so I went and got [J] and [J] said, ‘don’t panic man, I’ll fix it.’”

The tenor of Her Honour’s summing-up was that unless the jury excluded the deceased’s having died as the appellant claimed in that interview, the jury must acquit on the count of murder.

The circumstantial case

In his outline of argument, Mr Martin SC, for the respondent, provided this synthesis of the prosecution’s circumstantial case. It is useful to have regard to this before turning to the appellant’s challenge to the conviction. Mr Martin referred to this aggregation of features:

The only account of the deceased’s dying from a diabetic attack came from the appellant, who (on the evidence of Ms O and Ms M) lied about J’s keeping the deceased’s car after the dumping of the body, and J’s burning it, providing, he submitted, reason to disbelieve the appellant’s account overall.

The appellant’s claim to have panicked does not sit well with the reason he assigned for not taking the deceased into the hospital, which was a fear that they would ask “too many questions”. Instead, he dumped the body in the State Forest.

The burning of the car at Yatala cannot reasonably be explained by reference to panic.

The appellant had in early 2003 discussed with Ms W various ways of violently stripping the deceased of his assets, expected to include the proceeds of the sale of the deceased’s unit, including killing the deceased and dumping his body in a forest, and burning his car, in the course of which the appellant mentioned the Beerburrum State Forest and Yatala.

Dr G doubted the deceased’s deterioration, as claimed by the appellant, would have occurred over the only two day timeframe.

The appellant made incriminating statements to Ms O about the manner of disposal of the body, and referred to dumping the body or burying it in statements to Mr B and Mr A.

The appellant stole substantial amounts of money using the deceased’s cards, and this was not merely consistent with “an opportunistic theft after an innocent death”. The jury may have seen particular significance in that regard in the motive which emerged from the appellant’s discussion with Ms W in early 2003.

The death occurred just prior to the deceased’s expected departure for New South Wales, a relocation which would have rendered the appellant’s exploitation more difficult.

By the notice posted on the door of the deceased’s unit, the appellant sought to distance himself from the death by creating the false impression he believed the deceased was still alive on 19 December, whereas he actually believed the deceased had died on 15 December.

Absence of summation of the circumstantial case from the summing-up

It would have been helpful for the jury had Her Honour listed at least those principal circumstances relied on by the prosecution, and, as is often done in such situations, accompanied by mention of the defence responses. But she did cover the above points, or most of them, together with others, in her summation of the evidence, and I would not condemn the summing-up for the absence of an aggregated listing of that nature. This, I should point out, was not in any case the subject of a ground of appeal.

The absence of direct evidence of the cause of death

Mr P E Smith, who appeared for the appellant, submitted in his written outline that “as the prosecution could not positively establish or exclude particular causes of death, … the only reasonable conclusion which could have been reached by a jury was that the prosecution could not establish any unlawful killing by the (appellant) beyond reasonable doubt. Further the prosecution could not establish the relevant intent beyond reasonable doubt. For the jury to reach the verdict it did, it must have engaged in speculation which is not permissible.”

This was the originally raised ground of appeal, no longer pursued. But some discussion of this contention may help elucidate the Crown approach and aid the determination of the appeal.

Mr Smith referred to Royall v The Queen (1991) 172 CLR 378, and the reference by Mason CJ to Ryan v The Queen (1967) 121 CLR 205, 217-8. Ryan was a case where the various acts possibly causing death were known, and necessitated separate identification because of the need for differing instructions as to intent depending on the particular cause found. I set out some of His Honour’s discussion in Royall of Ryan (pp 385-7):

“In Ryan the trial Judge’s directions were deficient in that they failed to isolate the particular act or acts which the jury might identify as the cause of death. In that case there was room for argument about what was the act which caused death. Different considerations arose for determination in ascertaining whether Ryan’s state of mind satisfied the requirements of s 18 [of the Crimes Act 1900 (NSW)], depending upon which act was identified as the cause of death. The Crown case was that Ryan went to rob a service station. While he had his finger on the trigger of a loaded, cocked gun pointed at the deceased’s back, with his other hand he tried to find a cord in his pocket. The deceased made a sudden movement, Ryan stepped back and the gun discharged, killing the deceased. If pressing the trigger was identified as the act causing death, the question was whether Ryan willed that act and intended to kill or inflict grievous bodily harm or whether it was an unwilled reflex movement. If, however, presentation of the gun was identified as the act causing death, the question was whether Ryan knew that in the circumstances the involuntary discharge of the gun was probable… Thus the case was one in which identification of the act causing death required ‘specific and close consideration’.”

This case is distinguished for the absence of precise direct evidence, on the prosecution case, of the events proximate to the death of the deceased, save of course for the content of the police interview, the truth of which, obviously, the prosecution was not obliged to accept. On the medical evidence from Dr L, the cause of death could have been strangulation, stabbing not hitting a bone, or natural causes. As to strangulation or stabbing, the direction on intent would be the same. The prosecution sought to exclude death from natural causes by the circumstantial case summarized above, and also thereby to establish the appellant’s responsibility for the death and the existence in him of the requisite intent. The circumstantial case was apt to do that, for reasons to which I will come.

Mr Smith also submitted that “the arson of the car and lies were equally consistent with fear or panic that he would be blamed (wrongly) for the deceased’s death. The misuse of the credit cards was equally consistent with that crime being an afterthought – the appellant taking advantage of the situation”. Those submissions raise “jury questions”. The jury may well have taken a different view, when viewing those particular circumstances in the context established by all of the circumstances they considered significant. The jury was appropriately warned that where two or more inferences were equally open, they should draw the inference more or most favourable to the appellant.

The adequacy of the Judge’s reference to the defence case

The appellant contends that his case was not adequately put to the jury by the learned Judge in her summing-up.

Since the appellant did not give evidence, the only evidence of his account lay in his interview with the police. The Judge reminded the jury of the potentially important parts of that account. She read out the critical passage, about the deceased lapsing into unconsciousness, when summarizing the medical evidence, and returned more comprehensively to the content of the interview in her chronological treatment.

Also, the Judge specifically referred to the defence contention that the appellant was “on heroin and panicking after [the deceased] died of natural causes”.

The Judge additionally referred in the course of her summing-up to inroads of any arguable significance made by defence Counsel in his cross-examination of witnesses (for example, especially, in the specialist medical and scientific evidence, reading substantial passages from defence Counsel’s cross-examination of Dr G). She also mentioned defence Counsel establishing that Ms W, at the committal hearing, could not remember the appellant mentioning the Beerburrum Forest in his statements early in the piece. She referred to the particular complexion the defence sought to put on some specific issues (for example, that the appellant was merely bragging or sounding off in what he said to Mr A and Mr B). The Judge referred comprehensively to the evidence of some mismanagement by the deceased of his diabetes, and the consequence of that.

While the reference to the defence position was nevertheless rather sparse overall, I consider the Judge adequately reminded the jury of the defence position. It is significant that defence Counsel at the trial (the Public Defender) sought no further elaboration or emphasis.

Direction on hastening death

Counsel for the appellant criticized Her Honour’s statement to the jury:

“…it is enough that the defendant, Mr [DAN], did an act which hastened the death of [D]”.

Mr Smith submitted this could have led the jury to find the appellant responsible for the death of the deceased if, while the deceased was suffering a diabetic attack in the car, the appellant was simply driving the car with the deceased as a passenger.

Bearing in mind Her Honour’s directions on causing death, set out above, that could not reasonably have arisen. The reference to “hastening” death followed a reference to the requirement that the appellant’s act was a “substantial or significant cause of death or which substantially contributed to it”, a requirement repeated a little later in the summing-up.

Mr Martin submitted that, in referring to hastening the death, Her Honour presumably had in mind s 296 of the Criminal Code, which provides:

“A person who does any act or makes any omission which hastens the death of another person who, when the act is done or the omission is made, is labouring under some disorder or disease arising from another cause, is deemed to have killed that other person.”

I am not sure Her Honour was necessarily adverting to s 296. One can hasten a death by substantially contributing to it regardless of there being a subsisting “disorder or disease arising from another cause”. But I will deal with this issue on the assumption it could have been presented as a s 296 case, for that is raised directly in a ground of appeal challenging the adequacy of Her Honour’s direction.

Mr Smith submitted in this context that the jury “may well have thought they were able to convict if the appellant did not do enough to help the deceased after he started suffering his attack in the car”.

That is implausible. The prosecution rejected the appellant’s claims to the police of a sudden unexpected medical emergency, except so far as – on some evidence from Ms W – the appellant may have caused it. The defence position was that the appellant, influenced by the consumption of heroin, panicked after the deceased died of natural causes, and Her Honour reminded the jury of that. The prosecution position, drawn from its circumstantial case, was that the appellant intentionally brought about the death of the deceased, by particular means the prosecution could not establish and was not required to establish. To venture into the question of precisely how the death occurred (as, for example, by the withholding of treatment), where there was no direct evidence, would have involved impermissible speculation. It sufficed for the prosecution to establish, as the only rational inference from the whole of the circumstances established by credible evidence, that by some means or other the appellant caused the death of the deceased, and that in doing so he bore the requisite intent. As I have said, the circumstantial case was apt to establish those two facts to the requisite standard, and in so doing, to exclude beyond reasonable doubt the hypothesis that the deceased died from natural causes – for reasons I will later develop.

It remains to mention Mr Smith’s submission, in his written outline, in relation to the hypothesis the appellant may have prevented the deceased from taking his insulin, that “liability for murder attaches to positive acts and not omissions”. Mr Smith did not press this contention orally, but it may briefly nevertheless be addressed.

Section 296 of the Criminal Code speaks of an act or omission which hastens death, leading to responsibility for the death, and s 302(1)(a) gives rise to guilt of murder if the requisite intention exists. That runs contrary to the limitation for which Mr Smith contended.

But that aside, I revert first to the point made earlier. The jury could not without speculating have ventured upon an analysis of precisely how the deceased died, and it was not necessary for them to do so, beyond being satisfied by the prosecution’s circumstantial case that he did not die from natural causes, and that by whatever means, it was the appellant who was responsible for the death and that the appellant then had the requisite intent. That circumstantial case permitted the jury reasonably to reach those ultimate conclusions.

Secondly, keeping the insulin from the deceased when he needed it could be seen as an omission to supply it, or for the obverse, actively denying it. Again, one cannot speculate as to what precisely occurred. But even were Mr Smith right in his contention that to establish murder, a case of omission is insufficient, the ultimate point is that this Judge directed the jury in terms of “an act which hastened the death”. All of her references were to “acts” or “an act” which substantially or significantly caused or contributed to death. There having been no reference to omissions, Mr Smith’s submission is academic.

Warning about the credibility of the evidence of Ms W and Mr B

Mr Smith submitted that Her Honour should have expressly warned the jury of the dangers of relying on the evidence of Ms W and Mr B because their drug usage and criminal pasts rendered them potentially unreliable witnesses. He pointed out also that the jury asked for the evidence of Ms W to be re-read, and referred to Bromley v The Queen (1986) 161 CLR 315.

In that case Gibbs CJ said (p 319):

“If it appears that a witness whose evidence is important has some mental disability which may affect his or her capacity to give reliable evidence, common sense clearly dictates that the jury should be given a warning, appropriate to the circumstances of the case, of the possible danger of basing a conviction on the testimony of that witness unless it is confirmed by other evidence. The warning should be clear and, in a case in which a lay juror might not understand why the evidence of the witness was potentially unreliable, it should be explained to the jury why that is so. There is no particular formula that must be used; the words used must depend on the circumstances of the case.”

In Bromley, the relevant witness suffered from schizophrenia, and the trial Judge gave a warning which was accepted as adequate.

This was not a case where the relevant witnesses were shown to have been suffering from “mental disability”. The direction now proposed was not sought.

There were two reasons why in my view that direction was not essential.

The first was that, as pointed out by Mr Martin, “any judicial attack on [W’s] or B’s credibility for the reasons specified could only have served to rebound on the appellant’s credibility as well”, all three being substantial drug users with murky pasts.

Second, the justification for the administering of special warnings is that the court has an appreciation of the risk which lay jurors may lack. There was in this case emphasis, through the cross-examination of the witnesses, upon their heroin addiction, involvement in prostitution and prior criminal histories, and the Judge referred to these features in the summing-up, extending to Ms W’s description of herself as a ‘criminal’ and of the way criminals relate to one another – “you don’t dob on other people”. The Judge reminded the jury of Ms W’s “extensive criminal history”, including convictions for “crimes of dishonesty…fraud”. It is fatuous to surmise the potential significance of that cross-examination, as bearing on the witnesses’ credibility, would have escaped the jurors. It was blindingly obvious.

Brennan J made this point in Bromley (p 324), as follows (emphasis added):

“The rules of practice requiring the giving of a warning owe their existence, as Lord Hailsham acknowledges in Spencer [1987] AC 128 at 135 ‘partly to the inherent dangers involved, and partly to the fact that the danger is not necessarily obvious to a lay mind’: see also per Lord Ackner (p 141) and per Lord Diplock in Hester [1973] AC 296, 325. If the danger is equally obvious to the lay mind, a failure to warn of its existence is much less likely to result in a miscarriage of justice and thus much less likely to provide a ground for quashing a conviction than if the court has a special knowledge of the danger. If the danger is so obvious that the jury are fully alive to it without a warning, no warning need be given.”

There was no need for the particular direction now suggested, in the sense that its absence does not render the summing-up defective.

Ms O's statements to other prostitutes etc

In this context, it is convenient to mention Her Honour’s reference in the summing-up to Ms O's statements to people in the Fortitude Valley community that the appellant killed the deceased. Her Honour said:

“After [Ms O] broke up with Mr [DAN], she said she told other people, many of whom were prostitutes and/or heroin users, that Mr [DAN] had killed [D], although she agreed that he had never told her that and she said, ‘Not in so many words, no’. He had told her, she said, that [D] had passed out in the car and he had dumped the body. So they broke up for a little while and then they got back together again.”

Of course what Ms O said to others was inadmissible, and it would have been best had the jury been told that. But it is important to note that it was defence Counsel who elicited this evidence. He actually put to Ms O that she had said these things:

“Well, before we look at the weekend in detail I just want to ask you something about what happened when the car was burnt. Just before the car was burnt did you clean some things out of it or move some things out of it?-- Yeah, I took whatever was in the boot out and placed them into a bag.

What was in the boot?-- A number of things.

Yes?-- There was some clothing, some paperwork, yeah.

Clothing?-- Yeah, the clothing, it was a little boy’s baseball cap and a little girl’s pair of undies.

Right. Now, sometime after all of that happened – I can’t be sure about the time, so I can’t put it to you clearly. Sometime perhaps after you and [DAN] separated, as it were, you told people that he had killed [D]; it that right?-- Yeah.

At the time you met him you were a prostitute? Yes?-- Yes, that’s right.

You were a heroin addict?-- Yeah, that’s right.

After the time that you spent with him you and he separated for a while?-- Yeah.

I take it you resumed being a prostitute?-- Yeah, that’s right.

So the people that you were talking to when you were talking about [D] killing [DAN] were other prostitutes?-- Other people I know, yeah.

And drug users?-- Yeah.

Okay. Now, just to be clear, [DAN] never told you that he killed [D]?-- No, not – not in so many words, no.

Well, no, he told you – he told you something to the effect that [D] had passed out in the car?-- Mmm.

Is that right?-- Yeah.

Yes. And that he had taken his body away, he dumped his body?-- Mmm.

Yes. You converted that into that [DAN] killed [D]. You thought that that’s what that means?-- Mmm.

Okay. Well, I am not trying to be clever, I am not trying to trick you, I am just asking you to clarify for the jury----?-- Yeah.

----what exactly, if anything, [DAN] told you and have I put it to you fairly?-- Yes, you have.”

The apparent purpose of that cross-examination was to highlight Ms O's bad character, that she had wrongly jumped to a conclusion about the appellant’s involvement, and the precise things he had said – being the defence case, that the deceased passed out in the car.

As the Judge left the evidence with the jury in the summing-up, the focus was on Ms O's acknowledgement that the appellant had not said to her that he had killed the deceased; that what he said was that the deceased passed out in the car, that he dumped the body.

There was in my view no real prospect the jury misused this evidence. Her Honour’s reference to it in the summing-up is presumably explained by the forensic significance attributed to it by defence Counsel.

Proof of the intent to kill or do grievous bodily harm

Her Honour’s directions

Her Honour gave a comprehensive and orthodox direction on the drawing of inferences, of which no complaint was or is made. The direction included these passages:

“… You can only draw reasonable inferences and your inferences must be based on the facts you find proved by the evidence. There must be a logical and rational connection between the facts you find and your deductions or conclusions. You’re not to indulge in intuition or in guessing. If there is more than one inference reasonably open, you must draw the inference that most favours the accused person. If there’s an inference reasonably open that’s adverse to the accused – that is, one pointing to his guilt – and an inference in his favour – that is, one pointing to his innocence – you may only draw an inference of guilt if it so overcomes any other possible inference as to leave no reasonable doubt in your mind.…

To bring in a verdict of guilty based entirely or substantially upon circumstantial evidence, it is necessary that guilt should not only be a rational inference, but also that it should be the only rational inference that could be drawn from the circumstances. If there’s any reasonable possibility consistent with innocence, it is your duty to find the defendant not guilty. This follows from the requirement that guilt must be established beyond reasonable doubt.”

Her Honour gave an example of how an inference might be drawn, an example often given, of observing in the morning a wet external surface and inferring that rain must have fallen overnight.

The direction on drawing inferences was to be allied with Her Honour’s direction on the proof of intent, which included this passage:

“… A person intends to cause death or grievous bodily harm if that’s what they meant to do. The defendant’s intent is an issue in this case. No‑one can look inside his head. So you will need to examine the evidence and ask yourself whether it is proved beyond reasonable doubt that he intended to kill or cause grievous bodily harm.”

Needless to say there are many references in the summing-up to the need to establish that when the appellant caused the death of the deceased, he intended to kill or do grievous bodily harm.

Identification and adequacy of evidence going to intent

The evidence of Ms W, as to statements made by the appellant about various way of killing the deceased, was plainly relevant to establishing that any killing by the appellant was accompanied by an intent to kill or do grievous bodily harm. So was the evidence of Mr B, of statements made to him about killing. If the evidence which could be used as founding a conclusion that in killing the deceased, the appellant intended to kill him or do him grievous bodily harm, had been confined to the evidence of Ms W and Mr B, it may be that the Judge should have made that clear.

Mr Martin submitted, however, that the conclusion that a killing was accompanied by the intent to kill or do grievous bodily harm could have been drawn from a much wider aggregation of circumstances, including aspects of the appellant’s conduct from and after the disposal of the body, essentially as per the summary, set out above, of the prosecution’s circumstantial case.

In R v Rice [1996] 2 VR 406, the Victorian Court of Appeal comprehensively reviewed a large body of case law supporting the position for which Mr Martin contends, by and large cases like this one, where a cause of death could not be established. The court rejected a contention that in such cases, evidence of subsequent conduct could be used only to support a conviction for manslaughter.

I mention one of the cases to which Brooking JA referred, R v Onufrejczyk [1955] 1 QB 388. Brooking JA dealt with that case in this passage (p 414):

“Again the case is notable for the absence of any suggestion that the evidence would support the inference only of conduct amounting to manslaughter. At 400 the Court of Criminal Appeal, in a judgment delivered by Lord Goddard CJ, said this:

‘…here there are facts which point inevitably, as it is said irresistibly, towards the appellant being the person who knows what happened to the missing man and who disposed of that man in one way or another. It may be that it would have been desirable to emphasise to the jury that the first thing to which they must apply their minds was whether a murder had been committed; but, speaking for myself, I think that the way the judge put it in the two passages which I have read did sufficiently direct the attention of the jury to the fact that they had to be satisfied of that, and that if they were satisfied of the death, the violent death, of this man they need not go any further.’

At 395 the court cited a passage from the charge of the trial judge, Oliver J:

‘If he did not die by natural causes, he was killed. Members of the jury, if he was killed his body was concealed or destroyed and has not been found. It he is dead and was killed and the body was destroyed or concealed, he was murdered, was he not? That is the point. I want you to apply your minds to that set of circumstances, and decide for yourselves whether in the light of those facts, and many more to which I shall have to draw your attention, you can say that you are satisfied that no rational hypothesis except that he is dead, dead by violence, is open. If you are driven to that conclusion, that would be a verdict of murder; but if you think that that would be going too far, and that you could not safely say that no rational explanation of his death except murder could be conceived, why then it will mean that you have a doubt about it, and you will acquit him.’

This passage was described by the court as ‘as ample and as fair to the accused man as it is possible to conceive’.”

Mr Martin submitted there was strong ground upon which the jury might have rejected all self-serving assertions in the appellant’s police interview, leaving the aggregation of other evidence to provide powerful justification for a conclusion the appellant caused the death, and that in so doing, he bore the intent requisite to murder. The appellant’s lies as to “J’s” involvement in the burning of the car were plainly established. There are other arguably implausible aspects of the appellant’s account at the interview. I list some examples.

The appellant attributed his failure to take the deceased into the Royal Brisbane Hospital to panic. The jury may well have rejected that: on the appellant’s account, not having caused the death, the appellant had no reason to fear taking the body into the hospital. At another stage, he said: “Being on heroin I didn’t know what to do”. But he plainly knew that he should be taking the deceased into one of the hospitals. He later said that the reason he did not take the deceased into the hospital was that the hospital officers would “ask too many questions”, such as “how did it happen”. But on the appellant’s account, answering that sort of questioning would have involved no risk to him. The appellant also suggested “they would have to run blood tests”, and he had consumed heroin. But that lacks sense, in that it would be the deceased, not he, who would be tested. The appellant claimed to have said to J, as J dragged the deceased’s body into the bush, “we should go to the hospital”, which the jury might have rejected as grossly self-serving in light of the appellant’s approach earlier in the evening.

Putting this into the context of the lies plainly established by the evidence of Ms O and Ms W and the plea of guilty to arson, there was a reasonably strong basis for rejecting all aspects of the interview favourable to the appellant’s position, leaving the jury to assess the circumstantial case in answering the question whether the prosecution excluded death by natural causes and established the appellant’s responsibility for the killing with the requisite intent.

As to the exclusion of death by natural causes, although there was evidence of past diabetic collapses, the jury were entitled to place considerable store on the evidence of Dr H, the general practitioner, that the diabetes was well under control when he last saw the deceased in October/November 2003, and that there was no adverse cardiac indication, and the evidence of Dr G that the diabetes was, as he put it, “very, very well controlled”.

In R v Huebner; R v Maher [2004] QCA 98, McMurdo P at para 28 said that dishonest subsequent behaviour and statements “are plainly a relevant circumstantial fact in cases of murder”, while adding that “subsequent conduct alone is not, however, normally sufficient to establish murder or manslaughter where there is another plausible explanation for that behaviour”. In this case, of course, the prosecution did not rely on subsequent conduct alone. As a plausible explanation for the subsequent extensive use of the credit cards, Mr Smith relied on opportunistic dishonesty on the part of the appellant after a death for which he bore no responsibility. As an explanation for the arson and the lies, Mr Smith relied on fear or panic that the appellant would be blamed wrongly for the death.

But the jury were entitled to reject those explanations, and particularly so when viewing those features, not in isolation, but in the context of the other strands of the circumstantial case. The jury might have considered as particularly significant the appellant’s recourse to the contrivance involved in the note he posted on the front door of the deceased’s unit. With reference to that, and the claims of the appellant as to J dropping him off, leaving in the car and burning it, the Judge gave an adequate direction on the use of lies.

That the appellant went to such lengths to conceal the death (the disposal of the body a substantial distance away in bushland, and the burning of the car), and to distance himself from it (as by the note, and the account given in the record of interview which the jury must be taken to have rejected), itself provides strong ground for concluding that the appellant knew that he had committed an extremely serious crime, strong enough, together with the other evidence to which Mr Martin referred, including the evidence of Ms Smith and Mr B, to warrant a conclusion beyond reasonable doubt as to the appellant’s responsibility for killing the deceased and also, the concurrent existence in the appellant of the intent requisite to murder.

The absence of a direction on confessional evidence

Mr Smith orally submitted that because the statements made by the appellant to Mr B, on Mr B’s evidence, were of a confessional nature, Her Honour should have instructed the jury that before they could act on that evidence, they must be satisfied that the statements were made, and that in what he said, the appellant was speaking the truth. See Burns v The Queen (1975) 132 CLR 258. Her Honour did not give an express direction in those terms.

The amended grounds refer also to the evidence of Ms W, but her relevant evidence was substantially of statements made prior to the commission of the crime. The oral submissions focused on the statement of which Mr B gave evidence.

In Burns, the only evidence implicating an alleged armed robber was a confession allegedly made to the police, which he denied having made. The trial Judge gave the orthodox warning to the jury when the evidence was given, but did not repeat it in the summing-up. That was held not to imperil the conviction. A critical point there, it may be felt, was that the alleged confession was central to the resolution of the case. Barwick CJ, Gibbs and Mason JJ said (p 261):

“…a confessional statement may be only one piece of the evidence against the accused and the jury are entitled to consider all the relevant evidence together in deciding upon their verdict. The nature of the direction necessary to be given properly to instruct the jury as to the use of evidence of an alleged confession must depend on all the circumstances of the case.”

This present challenge concerns the appellant’s statement to Mr B and Mr A, after A’s reference to violence towards the person who had extorted $300 from the prostitute, and the suggestion that A should have killed him: “the last time I done that I had to dump them in the bush.” By contrast with Burns, this was only one piece of evidence in a multi-strand circumstantial case.

In cross-examination, defence Counsel put that what the appellant said was more like: “if someone was hassling [A] I would do something to them.” Mr B rejected that suggestion. He did however accept Counsel’s suggestion that the appellant was speaking in a “boasting way”, as “a sort of exaggeration”.

Her Honour reminded the jury of that in her summing-up, in the following passage:

“He agreed – Mr [B] – agreed with Mr Devereaux that it was said in a boastful kind of way and Mr [B] didn’t believe him.”

I accept Mr Martin’s submission that that amounted to “a focused way of pointing out the obvious, ie, an assertion that the claim was untrue”.

The absence of the additional direction, now proposed, does not imperil the conviction, and there is in this case significance in the feature that defence Counsel at the trial did not seek it.

An unsafe verdict?

Having reviewed the evidence, I do not consider the conviction unsafe, for reasons substantially emerging from the preceding analysis. The verdict returned is one at which a jury could reasonably arrive.

Conclusion

None of the grounds of appeal was established. I would order that the appeal be dismissed.

WILLIAMS JA: The appellant appeals against his conviction by a jury of the offence of murder. As the reasons of the Chief Justice, which I have had the advantage of reading, amply demonstrates, there is evidence on which a jury, properly instructed, could convict the appellant of murder. I have come to the conclusion that the conviction cannot stand, and there must be a retrial, because of deficiencies in the summing up. The circumstances in which the charge was laid, and the critical evidence led by the prosecution, can be ascertained on reading the reasons for judgment of the Chief Justice. I will not repeat unnecessarily that evidence.

After giving the jury the usual general directions, and dealing with the elements of the offence of murder (and manslaughter), the learned trial judge took the jury at some length through all of the evidence in what was described as "chronological order". From time to time the learned trial judge included in that resume of evidence some reference to what was said by either or both counsel with respect to that evidence, but there was no summation of the cases for the prosecution and defence. Given the large volume of evidence, much of which was not directly relevant to the issues the jury had to determine, it was important, in my view, for the trial judge in the summing up to focus the minds of the jurors on the critical issues by providing such a summation of the opposing cases.

It was purely a circumstantial case. The jury had to infer from circumstances a number of critical facts before they could convict. They had to infer beyond reasonable doubt that the appellant caused (or maybe hastened) the death of the deceased; that involved excluding the hypothesis that he died of natural causes. Then they had to be satisfied beyond reasonable doubt that the act of the deceased which caused (or hastened) the deceased's death was done with the intent to cause death or grievous bodily harm.

The objective evidence was that the deceased was seen alive on 14 December 2003 and on 3 March 2004 bones forming a substantial part of his skeleton were found in a heavily wooded area in the Beerburrum Forest. The pathologist who examined those remains could rule out death by multiple strikes or a bone crushing type injury. There was no evidence of the presence of a heroin derivative in the bones. The doctor could not rule out as a cause of death strangulation, death by a hyperglycaemic episode (excessive sugar in the blood), death by ketoacidosis (that is excessively low blood sugar level) and stabbing which did not impact on any of the bones recovered. He also could not rule out death by natural causes such as heart attack or stroke.

The absence of more of the body of the deceased, and the inability to identify accurately the cause of death, does not preclude a jury from finding that the offence of murder has been established beyond reasonable doubt; cases such as Peacock v The King (1911) 13 CLR 619, R v Ryan [1906] St R Qd 15, R v Onufrejczyk [1955] 1 QB 388, and R v Rice [1996] 2 VR 406 amply demonstrate that. In the present case the deceased was aged 73 when last seen. He was obviously not in robust health. He carried with him a "diagnostic diary" in which he recorded his blood glucose levels at regular intervals. His treating doctors regarded the diabetes as generally well controlled but as the jury was told in the summing up there "was a real possibility without the insulin in particular that his blood sugar levels would increase significantly and possibly lead to a diabetic coma and subsequent death." Sometime in the past (possibly in 1998) he had suffered from some form of heart attack which required the insertion of a stent into an artery. In addition to the use of insulin, he was prescribed other drugs for his diabetes, cholesterol control and blood pressure.

The appellant did not give evidence at trial, but the defence relied on his video taped interview with police as providing his account of how the deceased died. That evidence, in broad terms, was that on 14 December the deceased seemed to be unwell and the appellant decided to drive him to his home from the motel where the deceased had been with the appellant and the witness Ms O. Whilst driving to Woodridge the deceased "starting coughing … just slipped into unconsciousness … he was blue." Thus the defence case was that the deceased died in the appellant's car from natural causes.

Even without the medical evidence which cast doubt on death occurring as described by the appellant, the jury was clearly entitled to reject out of hand that account given by the appellant. But it did not follow from rejection of that account that death was not due to natural causes or that death was caused or hastened by some act of the appellant. The cause of death remained a matter of inference to be drawn by the jury beyond reasonable doubt from all the evidence before them.

Clearly an essential part of the defence case was that, given the deceased's state of health up to 14 December according to the evidence, the jury could not be satisfied beyond reasonable doubt that he did not die of natural causes whilst in the company of the appellant. The disposal of the body after death by natural causes was possibly explicable on the ground that that facilitated the appellant having access to the deceased's funds by using his credit cards. Once the death was made known those accounts would have been frozen and the appellant would have been deprived of funds to support his heroin addiction.

The defence case was not, in my view, adequately put to the jury. It was not sufficient merely to refer to the evidence as to the deceased's state of health up to 14 December and leave it to the jury to work out for themselves what significance they placed on that evidence. If the defence case had been summarised towards the end of the summing up, the cause of death would have been highlighted, and it would have been made clear to the jury that, having regard to the whole of the evidence, they had to be satisfied beyond reasonable doubt that an act of the appellant caused or hastened the death of the deceased before they could convict of murder; effectively that meant the jury had to be satisfied that death was not due to natural causes.

If the jury was satisfied beyond reasonable doubt that some act of the appellant caused (or hastened) the death of the deceased, they had then to consider whether or not at the material time he had the intent to kill or to cause the deceased grievous bodily harm. The jury was so instructed, but they were not told what evidence they could have regard to in determining whether or not the prosecution had discharged the onus of proving that intent.

Critical evidence on the issue of intent came from the witness W. She was a heroin addicted prostitute who lived with the appellant from about May 2001 to about June 2003. The summing up contained a detailed summary of her evidence; the following is the critical material contained in the summing up. Relevantly she said that during the period she was living with the appellant, he used the deceased's cheque book to forge a cheque which was given to W to cash. She was caught doing so and pleaded guilty to the relevant offence. Her evidence then was that shortly after that the appellant became aware that the deceased was selling his unit and in consequence would have significant funds in his bank accounts. According to W the appellant started devising ways that he could get at that money. She gave evidence that the appellant told her he would try and intimidate the deceased by taking him on a "boot ride"; that is scaring him by taking him for a drive in the boot of the car. As time went on, according to W, the appellant discussed more violent means of obtaining PIN numbers, including bashing the deceased, strangling him and even killing him. On her evidence the appellant said that he knew the deceased was a diabetic and if he was prevented from taking his insulin he would die. She also had the appellant saying he could burn him in his car to dispose of any evidence. There was some conflicting evidence as to whether or not the appellant specifically mentioned Beerburrum, but she said he did refer to the fact that Yatala was a good place to dump or burn cars.

The matters referred to by W in her evidence must have occurred prior to June 2003, that is some six months before the deceased disappeared and some three years prior to the trial which took place in June 2006. No warning was given in the course of the summing up about the credibility of W and the use which could be made of her evidence. Baldly stated as it was in the summing up, W's evidence was extremely damning of the appellant. Whilst any jury would probably be aware without any warning from a trial judge that the evidence of a heroin addicted prostitute had to be treated with caution, the evidence of W was so significant that some further direction was, in my view, called for. Was her recollection of what the appellant said to her reliable and accurate, particularly given the lapse of time? The evidence came close to, or could well be treated as, an admission of an intent to kill the deceased. The jury should have been instructed that before they could use the evidence in that way they had to be satisfied beyond reasonable doubt that W was truthful and accurate in recounting what the appellant said after such a lapse of time, and that the appellant meant what he said if he used those words – that is to say, for example, that he was not big noting himself with his girlfriend.

Further, the jury should have been told, in my view, that the evidence of W went to the issue of the intent of the appellant if they were otherwise satisfied that he caused (or hastened) the death of the deceased and that the statements in question were made. It was the most direct evidence of intent. It was not sufficient simply to refer the jury to the evidence of W.

Much the same can be said about the evidence of Mr A, Ms O and Mr B. Mr A resided with the appellant and Ms O in a house at Coorparoo for about a week in the period December 2003 to January 2004. In the course of the summing up the trial judge read to the jury, inter alia, an answer he gave in the course of his evidence in chief relating to a conversation with the appellant during that period:

"Well, I thought [DAN] was talking shit, to be honest with you. Excuse me. He basically said to me, 'Would you help me bury a body up the North Coast?' I just laughed at him and thought he was just absolute crap."

The summing up then continued by referring to a question put to A by the appellant's counsel in cross-examination: "I suggest that what he said to you was more along the lines that it was a question to you, 'If you were with someone and they died, what would you do?' to which A replied 'Yeah. No. That’s rot.'" The jury was told A went on to confirm that he denied that proposition.

The learned trial judge did not refer in the summing up to the fact that A said under cross-examination that he thought the appellant was "big noting" when referring to burying a body.

Again that evidence from A was put before the jury without any direction to them as to what use they could make of it. The jury may well have regarded it as an admission of some sort by the appellant, even though A did not regard the appellant as being genuine at the time. The jury should have been warned in the circumstances against treating that evidence on its own as constituting an admission. The jury was not warned they should be satisfied that the evidence of A, who confessed to psychiatric problems, was truthful and accurate before they could act on it. Given the reaction of A to the question posed by the appellant, the jury should have been instructed that the evidence could be used for no other purpose than as another piece of evidence in the circumstantial case against the appellant, and even then only if they were otherwise satisfied beyond reasonable doubt that some act of the appellant caused (or hastened) the death of the deceased. That qualification had to be made in the light of the fact that burying the body after a death by natural causes was consistent with the appellant's clear objective of draining the deceased's bank accounts.

The witness Ms O was another heroin addicted prostitute who had been with the appellant and deceased on the nights of 12 and 13 December 2003, and who lived with the appellant at least during the period December 2003 to January 2004. In the course of the summing up the learned trial judge said this with respect to the evidence given by Ms O:

"After [Ms O] broke up with Mr [DAN], she said she told other people, many of whom were prostitutes and/or heroin users, that Mr [DAN] had killed [D], although she agreed that he had never told her that and she said, 'Not in so many words, no.' He had told her, she said, that [D] had passed out in the car and he had dumped the body. So they broke up for a little while and then they got back together again."

Those responses from Ms O were elicited during her cross-examination by counsel for the appellant; it was apparently designed to discredit her by showing she would make unsubstantiated allegations against the appellant. But the jury were not told in the summing up that was the purpose of that questioning, and referring to it in the summing up gave it an apparent importance it did not warrant. The jury were not given any instruction as to what use, if any, they could make of that evidence. The fact that the judge did refer to that passage in the evidence could well have suggested to the jury that they could place some reliance on it; say, for example, as evidence that the person living with the appellant believed he had killed the deceased and that made other evidence implicating the appellant more credible. The reference in the summing up to that evidence was clearly inappropriate and prejudicial to the appellant; the evidence was irrelevant and inadmissible, except perhaps as going to credit, and the jury should have been so directed if any reference was made to it.

B, another heroin user, was with the appellant and Ms O almost every day during January; on each occasion they shared heroin. The judge referred in the summing up to evidence from B about that use of heroin and about the appellant's love for Ms O. All of that was entirely irrelevant to the issues the jury had to determine, except the credibility of B. But the passage also included a conversation between B and the appellant about the former dealing with the boyfriend of another prostitute. Apparently the boyfriend had misbehaved and B had exacted retribution by slapping him. According to B in the passage read to the jury another male who was present during the conversation, Mr A, said: "You should have put him off", meaning have killed him. Then, according to B, in the passage read to the jury, the appellant contributed the following to the conversation: "Yeah. The last time I done that I had to dump them in the bush". B's evidence went on: "That’s the only evidence he has ever spoken about and I told him he was bullshitting. I said, 'Sure. Yeah, sure you did'." The learned trial judge went on to remind the jury that counsel for the appellant had exacted from B a concession that what the appellant said was "in a boastful kind of way" and that B did not believe him.

But importantly for present purposes the jury were not told what use, if any, they could make of that evidence. Almost certainly the conversation took place after the deceased had died. In those circumstances the jury may well have regarded what was said to B, though B disregarded it, as an admission that the appellant had killed the deceased. The jury was not told that they should be extremely careful before drawing any such conclusion; indeed they could well have been instructed that in the circumstances they could not treat the evidence as an admission of causing the death. Clearly before it could have been treated as an admission the jury would have had to be satisfied as to the truthfulness and accuracy of the admission. They were not so instructed. They also should have been warned that this was clearly a conversation between regular heroin users and, in consequence, the evidence had to be at least scrutinised carefully before it could be treated as reliable.

The difficulty is that the evidence I have referred to from Ms W, Mr A, Ms O and Mr B was put before the jury without any direction as to how they were to use it, without any warning that they had to scrutinise it carefully before regarding it as evidence implicating the appellant in the death of the deceased, and pointing to the fact that it had to be evaluated in the circumstance of there being another possible explanation for the disposal of the body by the appellant after death by natural causes.

On the hearing of the appeal, counsel for the respondent submitted that the conclusion that the appellant killed the deceased with intent to kill or do grievous bodily harm could be inferred from a wider aggregation of circumstances, including the appellant's conduct in disposing of the body. He made reference to the decision in R v Rice. It is clear from the decision in Rice, and the other cases referred to therein, that a jury can return a verdict of guilty of murder where the cause of death has not been precisely established and where the accused has disposed of the body. But in most of those cases, and Rice is a good example, the deceased was a young, healthy person when last seen. Where a healthy, vibrant young woman is last seen with her male partner and subsequently her decomposed body is found in circumstances linking that partner to the disposal of the body, it is clear that a jury could return a verdict of murder; even a verdict of murder as distinct from manslaughter. That is because, as the reasoning in those cases demonstrates, the conduct of the accused in disposing of the body indicates a consciousness of guilt to the crime of murder. Critically for present purposes the learned trial judge did not refer to that process of reasoning in the summing up. The jury was not directed as to how and what they might infer from the disposal of the deceased's body. If they were directed about consciousness of guilt along the lines of the reasoning in Rice, in this case it would also have been incumbent upon the judge summing up to remind the jury of an additional complicating factor, namely the possibility of death by natural causes. There would not be many cases where there was an innocent explanation for the disposal of a body after death by natural causes, but this was, as indicated above, such a case. The jury could clearly overcome that consideration, but they had to be reminded of the problem.

On the hearing of the appeal counsel for the respondent also relied heavily on the appellant's lies with respect to the disposal of the vehicle as indicating a consciousness of guilt. In the appellant's statement to the police, relied on at trial as his version of events, he claimed that the person "J" took the deceased's car and burnt it. If the jury accepted the evidence of Ms O and M then it followed that the appellant's account to the police was a lie. The witnesses Ms O and M said that the appellant drove the deceased's car to the track beside the brewery at Yatala where it was burnt. Those witnesses, according to their evidence, accompanied him in another vehicle and the appellant returned with them in that vehicle. Counsel for the respondent on the hearing of the appeal submitted that if the jury was satisfied that the appellant told a lie with respect to the burning of the deceased's car then that demonstrated a consciousness of guilt on which they could rely in arriving at the conclusion that the appellant killed the deceased. But unfortunately for the prosecution that process of reasoning was not put to the jury in the course of the summing up. Without a direction along those lines it is doubtful whether a jury would have appreciated the significance of that line of reasoning.

In the passage of the summing up dealing with lies told by the appellant, which included reference to a lie told by the appellant about J burning the car, the jury was merely told that those lies "affects the credibility of the story he told". They were then directed: "The mere fact that the defendant tells a lie is not in itself evidence of guilt." Clearly the jury were not instructed in accordance with Edwards v The Queen (1993) 178 CLR 193 that in this particular case it was possible to conclude that lies told by the appellant evidenced a consciousness of guilt which could be used by the jury in advancing the circumstantial case.

In the absence of an appropriate direction to the jury, in my view, the respondent cannot support the jury verdict by relying upon that line of reasoning.

I have in these reasons demonstrated a number of deficiencies in the summing up which, in my view, render the verdict unsafe and unsatisfactory. As already noted the evidence would appear to be sufficient to enable a jury, properly instructed, to return a verdict of guilty of murder; but such an outcome is by no means certain and that is why it is imperative in a case such as this that the directions be full and accurate.

In the circumstances the conviction should be quashed and there should be a new trial.

HOLMES JA: I have had the considerable assistance of reading the judgments of the Chief Justice and Williams JA on this appeal and will not reprise the evidence which they have set out. I agree with Williams JA that the evidence of Ms W and Mr B was critical to any finding of the intent necessary to murder, and for that reason required particular attention in the summing up.

Counsel for the Crown on the appeal, Mr Martin SC, argued, to the contrary, that the evidence of Ms W and Mr B was not crucial, because the Crown was in a position to prove the necessary intent independently of that evidence. He pointed to evidence of the appellant’s motive to murder, and to aspects of the appellant’s conduct after D’s death which, he said, demonstrated a consciousness of guilt.

The suggested motive was that the appellant wanted to steal money from the deceased, using his bank cards, and D’s intended relocation to New South Wales at some time after Christmas 2003 would have made that more difficult. But that motive, of course, emerges largely from Ms W’s evidence; without it there is nothing about the thefts to show that they were not merely opportunistic. Indeed, given that the deceased had in his last days made a number of withdrawals in the appellant’s company, it might be thought that his death was inconvenient, since the appellant had then to trust to using a dead man’s card without detection.

The features Mr Martin identified as making out the Crown’s case on murder are set out in the Chief Justice’s judgment at [40]. One can set aside, for present purposes, those which simply involve rejection of the appellant’s account. Although a number of statements in the record of interview could readily have been found to be lies, the Crown did not, at trial, rely on them as evidence of consciousness of guilt; consequently the jury’s dismissal of the appellant’s account in that interview could not advance the Crown case.

That leaves, apart from Ms W’s account and the suggested motive, three features, said to demonstrate a consciousness of guilt: the disposal of the body in the Beerburrum State Forest; the burning of the deceased’s car; and the note, dated after his death, left on his unit door to create the impression that the appellant believed him alive. In fact, the Crown did not, at trial, rely on the placing of the note on the door as evidence of consciousness of guilt; at the prosecutor’s request the learned trial judge left that evidence to the jury as a lie going only to credibility. But for the purposes of this exercise, it may be included in the former category.

In asserting that the applicant’s conduct after D’s death could support a murder conviction, counsel relied on R v Rice¹. In Rice, the applicant sought leave to appeal against his conviction for manslaughter, not murder. The remains of his former girlfriend were found, placed in lime, in a drum among his stored belongings and he had told various people a number of inconsistent things about her movements and circumstances. The principal, unsuccessful argument on the application was that the innocent hypothesis of death by natural causes could not be ruled out. Brooking JA, with whom the other members of the Court agreed, undertook a review of cases concerning the inference that could be drawn from the disposal of a body. He acknowledged that the cases before 1935, when Woolmington v The Director of Public Prosecutions² was decided, were of little assistance, but he noted a number of later decisions in which no particular reference was made to the possibility that the consciousness of guilt might be referable to manslaughter rather than murder. He set out a passage from an earlier Victorian case, Woolley v The Queen³, which included the proposition that it would be

“…fanciful to require as a pre-condition to possible use of the conduct [flight or lies] that the accused had turned his mind to particular alternatives such as murder or various categories of manslaughter”.⁴

That passage went on to discuss the terms of a proper direction on consciousness of guilt, suggesting that it need not always advert to the particular offence charged; but neither Woolley nor Rice purports to say that disposal of a body gives rise, per se, to an inference of murder.

The point here is not that the evidence of the appellant’s conduct after the deceased’s death could not be led in support of the murder case; it is that without the evidence of Ms W and Mr B it was not capable of excluding rational inferences consistent with innocence of murder. The appellant might have taken the steps of disposing of the body and car and maintaining a pretence that the appellant was still alive because of a consciousness of being involved in the manslaughter of the deceased; or because of his past and intended use of the dead man’s credit cards; or, conceivably, because of an anxiety that the authorities might take a dim view of his ill-treatment of a frail and elderly man over the days leading up to his death (whether or not that treatment actually amounted to an unlawful killing). Importantly, the prospect of death from natural causes, as Williams JA has explained, was a real possibility here. Indeed, the Crown suggested the withholding of insulin causing a fatal hypoglycaemic episode as a possible mechanism of death; once that possibility is accepted, the alternative possibility, that the deceased himself failed to take the insulin necessary to his wellbeing, must also have been open.

The case, absent the evidence of Ms W and Mr B, fell squarely within the Victorian Court of Appeal’s description in R v Ciantar⁵, of

“…circumstances in which post-offence conduct is equally consistent with two or more possible offences or is otherwise intractably neutral. Where that is so, it may not be open, even on the totality of the evidence, to draw an inference that the accused had a consciousness of guilt of some particular conduct at the time that he told lies or performed some act which the prosecution relies upon as constituting post-offence conduct”⁶.

The Court went on in Ciantar to observe that such neutrality was uncommon, once, in any given case, the post-offence conduct was taken in the context of all the evidence. In the present case, the one feature of the Crown case which could give complexion to the consciousness of guilt evidence, colouring its otherwise intractable neutrality, was the evidence of Mr W and Mr B.

The Crown could not establish intent without the W/B evidence. It was necessary that that be pointed out to the jury. It is not the case that warnings must always be given in respect of the evidence of drug addicts or people with criminal history; but in the circumstances of this case there was a need to point those features out, and to emphasise the need for careful scrutiny of those witnesses’ evidence. I agree with all that Williams JA has said as to the need for warnings in respect of it. In the circumstances there has been a miscarriage of justice. The appeal must be allowed and a new trial ordered.

Footnotes

1. [1996] 2 VR 406. ↩

2. [1935] AC 462. ↩

3. [1989] 42 A Crim R 418. ↩

4. At p 423. ↩

5. [2006] VSCA 263. ↩

6. At [40]. ↩