R v Doherty [2003] VSCA 158

R v Doherty [2003] VSCA 158 - VSCA 2003 case summary — Zoe

[14]

As I have already indicated, the evidence of Lisa Scerri, if accepted, was a potent piece of evidence pointing towards the guilt of the applicant. If it was accepted as reliable by the jury, it undermined the applicant's case that he was nowhere near his house in Larne Avenue between the time when he left it at approximately 9.30 in the morning and the time when he returned at approximately 3.20 in the afternoon. Indeed, as I have previously remarked, the applicant had made several statements to the police as to his movements on the 14 February 2000 which, if believed, had him at various places consecutively throughout the six hour period. Although he was able to verify, by the production of receipts, certain of the locations where he claimed to be, there was no documentary verification in respect of the period of more than two hours between 10.10 a.m. in the morning and 12.26 in the afternoon. The thrust of Lisa Scerri's evidence was that she had received a telephone call from her husband at approximately 11.30 in the morning requesting her to go to their local bank at Tunstall Square for the purpose of paying an overdue bill. She said that at approximately 11.40 she collected her three year old son and left the premises for the purposes of entering her car. She said that she heard a "moaning scream" of a female coming from the direction of the house occupied by the deceased and the applicant. The property of the Scerri's backed onto the Doherty's property and, according to Lisa Scerri, the "unpleasant scream" which she heard came from the direction of that property. Mrs. Scerri said that she drove her car out of their driveway into Drummond Close which was a "court" off Larne Avenue. She drove to the corner of Drummond Close and Larne Avenue where she intended to turn right into Larne Avenue to drive towards Tunstall Square. She said she saw no cars in the street as she turned into Larne Avenue but, as she went past the driveway into the Doherty property, she slowed down to have a look into that property because she was concerned on account of what she had previously heard. She could see the car of the deceased parked in a position where it was normally parked when the deceased was at home. Mrs. Scerri drove on along Larne Avenue towards its intersection with Conway Avenue, some 175 metres further on. She said that as she passed Conway Avenue she looked to her right and she saw the distinctive converted ambulance, white in colour, commonly used by the applicant proceeding away from her up the hill in Conway Avenue. She said that it "registered with her" that the deceased and the applicant may have had what she described as a "domestic".

[15]

This evidence of Mrs. Scerri was strongly attacked by defence counsel as a figment of her imagination. The basis of that attack was that she had made no statement to the police to the effect of her evidence until 28 February - i.e. some two weeks after the murder. No statement had been made by her to that effect notwithstanding that she had spoken to the police on two occasions in the days following the killing. In the course of the statements which she made to the police she had referred to various things she was doing on the morning of 14 February but had said nothing about the "scream" or the sighting of the applicant's vehicle. The explanation which she gave for this omission was that she was in a state of what she described as "real shock" after being informed of the murder of the deceased, and that the matter of what she had heard and observed had been repressed and did not appear to be relevant. She said that, at some time after she had made the early statements, she thought that she should tell the police of her observations but her husband had become "furious", advising her not to "become involved". Although she delayed, her conscience had finally prevailed, and she rang the police on 27 February, which led to the taking of a statement on the following day. Even in that statement she had said that she was not "100% certain" that the sighting of the applicant's vehicle in Conway Avenue had been on 14 February. In the course of giving her evidence, she claimed that she had used that expression partly to appease her husband and partly because it was "such a big statement to make", and she wanted to be satisfied in her own mind that the two events which she remembered - namely the scream and the sighting of the ambulance - occurred on the same morning. In the course of the trial she was adamant that such was the case because, as she said, she could recall saying to herself, when she saw the applicant's vehicle, words to the effect of "bingo, there's been a domestic".

[21]

(a) The fact that, in the silence of the valley through which Larne Avenue ran, no one had heard any excited barking from the doberman dog owned by the applicant and the deceased. It was highly unlikely, so the Crown suggested, that an unknown intruder would venture into premises where such a dog existed; and that, if he had, he would not be able to remain there long without the dog becoming excited.

(b) The point of entry into the premises was said to be the boys' bathroom window at the front of the house. Although the window bracket and its chain winder had been "jemmied" away from its base plate, there was no evidence, so the Crown contended, that the window had been penetrated by any person. Cobwebs running from the window sill down to bikes stored below remained unbroken, and the accumulation of dust along the sill of the window remained undisturbed, as did bars of soap which were lined up along that sill. Furthermore, the police crime scene examiner could find no disturbance of the film of dust on the vanity cabinet below the window or any impressions of shoe prints of persons who entered the house via the window. The scene within the house, so the police witnesses contended, was inconsistent with a "genuine interrupted burglary". This was because, so those witnesses said, drawers in two separate rooms (namely the master bedroom and the study) had been opened or removed and their contents dumped in piles on a bed or the floor. Yet none of the piles of contents had the appearance of being "sifted through" in either bedroom; and valuables such as cash and jewellery were simply left undisturbed. There was nothing, so said the police crime scene examiners, which suggested that anything had been taken away, and there was nothing left behind to identify an intruder who was foreign to the family. Searches for fingerprints and/or traces of biological material - other than those left by the deceased and the applicant and their children - proved fruitless. Although, in the family room, a CD player and a VHS video recorder and cassette tapes had been removed from their shelves and placed in a bag, that bag remained where it was.

(c) There was evidence of biological testing of certain items. One item was a sock worn by the applicant; and the other was the murder weapon which had been found beside the body of the deceased. Forensic evidence was that there was a stain on the front top of one of the applicant's socks. Although that stain did not ultimately test absolutely positive for blood, it nevertheless gave DNA results upon typing. The results indicated a mixture of biological material; the major contributor to that biological mixture being the deceased to a probability of 30 billion to one. The swabs taken from the murder weapon also disclosed a biological mixture, the major portion of which clearly was contributed by the deceased. There was evidence consistent with a minor contribution from the applicant but that, as the forensic scientist conceded, could have been due to the handling of the metal bar over a period of time in the days or weeks previously.

(d) "Cover up" by the applicant of his movements on 14 February

It was the Crown contention that the applicant had been astute to record his movements on the 14 February by collecting receipts from the various places where he had been. Those included receipts for payment of rates and telephone and water charges at the Tunstall Square shopping centre shortly after 9.30 a.m. on that day. The receipt from the post office for the payment of water and phone charges bears the time of 9.39 a.m. The next receipt is from Hardware House in Whitehorse Road, Nunawading, which bears the time of 10.10 a.m. Thereafter the next receipt is from the Nunawading Library which is across the road from Hardware House. That receipt bears the time of 12.26 p.m. and records a book, "The Technique of Glass Forming", taken from the library by the applicant. After 2 p.m. there was further documentary evidence of the applicant's presence at commercial outlets in Boronia, Bayswater and Ringwood.

(e) Senior Detective Moir from the Doncaster Police Station arrived at the applicant's premises shortly after 3.40 p.m. on 14 February 2000. She asked the applicant various questions about his movements on that day. The applicant, whom she said appeared genuinely upset, told her that he had left home at about 9.30 a.m., when his wife had already left to take the children to school. Amongst other things she asked:

[25]

As the Crown pointed out to the jury, there were two unverified gaps in this statement of the applicant's movements. The first was the "some hours" which he said he spent at the Library in Nunawading reading "magazines and lead lighting books". There is no doubt that he had borrowed a book about "art glass" at about 12.30 p.m. That is verified by the computer printout from the Library. No one was able to verify the earlier period of some two-and-a-half hours between the time when he borrowed that book and the time when he had left Hardware House on the opposite side of Whitehorse Road. If he had been able to remember the names of the books which he claimed to have "returned" to the Library, there may have been some verification of the time of return from the Library records relating to the movement of a particular book. He was unable to remember the names of those books which he claimed to have returned. It was the Crown contention that the applicant was not telling the truth in relation to his movements during this period; it being alleged that, during that time, he had been seen driving his vehicle in Park Road by Mrs. Bruders; and later seen driving his vehicle in Conway Avenue by Mrs. Scerri. The other period in respect of which there was no verifying document was the period between approximately 12.30, at which time he said he had left the Library after borrowing a book, and 2 p.m. when he went to the scrap metal merchant in Canterbury Road, Bayswater. During this period he claimed to have been at the "Eastland Shopping Centre" looking for a musical instrument shop. On the following day (i.e. 15 February) at about 12.25 p.m. Sergeant Jenks from the Homicide Squad rang the applicant to seek verification of his movements. In particular, he wanted the applicant to tell him about his movements at the Eastland Shopping Centre. The applicant told him that he did not know the names of the streets but that it was in the street where the Ringwood Police Station is. The applicant said to Jenks:

[41]

The case made on behalf of the applicant, in response to the prosecution evidence, was that that evidence was equivocal and incapable of satisfying the jury to the requisite standard that the applicant was the killer of his wife. Every aspect of the evidence upon which the Crown relied was put under the microscope by the applicant's counsel. There was nothing in the evidence, so it was contended, which excluded the possibility that the deceased was murdered by a stranger who had been interrupted in the course of a burglary. In particular, it was put that the crime scene examination made it clear that the drawers had been pulled out in the master bedroom and objects strewn about the room before the deceased had been battered to death, because the blood spatter was upon those drawers and objects and not underneath them on the floor. Furthermore, it was put that the evidence that the intruder had not come through the bathroom window was far from compelling, because there were marks of disturbance on the stool beneath that window and the Crown had conceded that entry could be gained without disturbing the objects or the film of dust on the window sill and vanity basin. In any event, it was said that the nature of the day was such as to enable dust to accumulate between the time of the murder and the time when the crime scene examination had taken place. It was put on behalf of the applicant that it was impossible to rationalize what intruders do, or might do, once they are interrupted. There was nothing in the evidence given by the police officers who investigated the killing of the deceased which proved that burglars in that situation would flee without attacking the person who had interrupted them. Indeed, it was put that the burglar who broke into this house by the bathroom window was probably one in an irrational state as burglars frequently are. Nor could it be said that the mere fact that the articles collected for removal in the house - but not taken - suggested that the burglary was "staged". Rather, it indicated a realization of the enormity of what had occurred and an exit from the scene as quickly as possible without taking the stolen objects for fear of later incrimination. In any event, the applicant had later found - and told police - that $800 was missing from the top drawer in his bedroom. It was put that the lie told about being in Eastland Shopping Centre was no doubt told out of a desperate fear of being wrongly implicated in the killing of his wife; and, in any event, it was not a lie which was material in the circumstances because the Crown was not suggesting that the deceased was killed during the period of time when the applicant was, as the Crown contended, misrepresenting his whereabouts.

[42]

Furthermore, it was put on behalf of the applicant that the evidence of Mrs. Scerri and Mrs. Bruders could not satisfy the jury that the applicant was driving his ambulance in the vicinity of 27 Larne Avenue at the times nominated by those witnesses. In the first place it was put that the credit of Mrs. Scerri had been destroyed by the fact that she had said nothing about the matters that she had heard and observed until some two weeks later, and even then in a less convincing form than the way in which she gave her evidence. So far as Mrs. Bruders was concerned, it was put that the vehicle which she had seen was not the vehicle of the applicant because the latter vehicle had a black bonnet. Counsel for the applicant put it to the jury that the evidence relied upon by the Crown was too vague and equivocal and left too many unanswered questions to enable the jury to be satisfied to the requisite extent of the applicant's guilt. For example, it was put that Mrs. Scerri's housekeeper, who attended her house at about 12 o'clock on 14 February, had seen an unidentified old vehicle parked outside 27 Larne Avenue facing "the wrong way". That piece of information had excited the police to the point where they made many enquiries to try and exclude it as a relevant piece of evidence but were unable to do so. Counsel for the applicant relied heavily upon the character evidence called on behalf of the 50 year old applicant and contended that it was preposterous to suggest that this 50 year old man of a caring and gentle nature would so brutally murder his wife of 14 years simply because their marriage was in a parlous state and she was desirous of leaving him. It was clear, so counsel submitted, that the killer of the deceased must have accumulated a great deal of her blood on his clothing. That much was conceded by Sergeant Ashley who was the "blood spatter expert". It was an insufficient explanation, so it was put, for the Crown to contend that the applicant had no doubt changed his clothing and discarded that which was incriminating. Furthermore, it was put that the biological material which had been found at the top of one of his socks could easily have been the product of inadvertent contact with the body of his wife at the time when he found her.

[44]

After a trial which had lasted approximately two weeks, the jury finally retired to consider their verdict at about mid-day on the 17 August 2001. After a retirement of four-and-a-half hours, they returned a verdict of guilty. His Honour then adjourned the matter for sentencing on a date to be fixed. On the 16 November 2001 he entertained a plea in mitigation of sentence; and finally imposed sentence on 7 December. His Honour accepted that the applicant, who by then was aged 52, was a man of otherwise good reputation. He further accepted that until 1991 he had been in regular employment with Telecom for some 24 years. He noted that the applicant had suffered a series of financial set-backs and had developed a serious health problem. His Honour indicated that it was not possible for him to determine precisely when the intention to kill the deceased was formed in the applicant's mind, but that it was reasonable to infer that his meeting with Mr. Gillespie on the Friday preceding the death played a significant part in the decision to murder her. His Honour took the view that it was impossible to determine whether the intention to kill had been formed on the days preceding the murder or whether it was a decision taken, opportunely, when the chance arose on the Monday morning. His Honour did find, however, that the fact that the applicant had retained a number of commercial documents enabling him to account for some of his movements on the Monday morning suggested a degree of premeditation. Nevertheless, he was not prepared to draw that inference beyond reasonable doubt. He thus sentenced the applicant "on the basis that the degree of premeditation involved in this murder was no more than that necessary to account for the formation of the necessary ... intent". The judge further found that the attitude which had been adopted by the applicant after the death and up to the trial demonstrated that he had no remorse for the crime which he had committed; nor was there any indication in the medical reports submitted to the court of what it was which precipitated the criminal activity. His Honour referred to a psychologist's report - from Mr. Healey - indicating that the applicant was a depressed person but that his intelligence ranked him "in the 95th percentile". His Honour concluded that "overall it would appear that you are an intelligent, introspective, somewhat withdrawn person prone to episodes of depression to a greater or lesser extent". Nevertheless, as his Honour said, the applicant had engaged in "an extreme form of domestic violence" which had to be visited by condign punishment. He accepted that the applicant was unlikely to offend again and posed no threat to community safety but that his crime demanded that the sentence reflect punishment for the wickedness that he had demonstrated. He sentenced the applicant to a period of imprisonment for 21 years and ordered that a minimum period of 16 years be served before the applicant would become eligible for parole.

[51]

Notwithstanding the apparent logic in the applicant's arguments as to the evidentiary value of some of the individual circumstances which the Crown set out to prove, the arguments tend to lose sight of the fact that the jury in this case was being asked to determine whether the body of circumstantial evidence, viewed as a whole, could satisfy the jury to the requisite standard that the applicant was the killer. This Court necessarily recognizes that the unrepresented applicant, who is unfamiliar with the rules of evidence and procedure which govern trials in which the prosecution relies on circumstantial evidence to prove guilt, is at a substantial disadvantage. That is one of the reasons why we have so carefully reviewed the evidence and the trial judge's instructions in respect of that evidence. His Honour correctly told the jury that the case was "a circumstantial" one, and that the ultimate issue for their determination was whether the applicant was the killer of his wife. He correctly told them that they could only make such a conclusion by drawing an inference from the facts they had found to be proved and that the ultimate fact which they had to determine could not be found unless they were satisfied beyond reasonable doubt that there was no reasonable inference consistent with innocence; or "no reasonable inference consistent with the accused not having committed the crime". His Honour told the jury on more than one occasion that they could not draw the ultimate inference against the accused "unless it is the only inference reasonably open on the evidence" and that "if there is any other inference reasonably open on the evidence then the accused is entitled to be acquitted". He went on to tell the jury that "to put it another way you must exclude all inferences suggestive of innocence. It is putting it around the other way. That the accused killed the deceased must be the only inference reasonably open on the evidence when you have examined all the evidence. It follows from that that if any particular fact, when you are building up this mosaic, is indispensable to your conclusion, then that fact must be proved beyond reasonable doubt." His Honour further directed the jury that because of the significance of one of the issues of fact relied upon by the Crown - namely that the burglary was "staged" or "contrived" - they should be satisfied of that fact beyond reasonable doubt before using it as a basis for the inference of guilt.

[59]

The applicant's written submissions, insofar as they relate to the ground which I am presently considering, contend that the evidence was insufficient to enable the jury to convict. This is really a reference to s.568 (1) of the Crimes Act which empowers this Court, upon any appeal against conviction, to allow the appeal "if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence ...". For the reasons which I have sought to explain that ground cannot be made good. There was, as it seems to me, sufficient evidence which the prosecution was able to put before the jury from which the necessary inferences could be drawn. It was not suggested, nor am I of the view that it could have been suggested, that there was no evidence to go to the jury in the sense used in May v. O'Sullivan[5]. Although the applicant did not specifically contend that this Court ought to enter a verdict of acquittal, I apprehend that that was what he was seeking in putting forward his arguments in respect of this ground. However, it is apparent from what I have so far said that the evidence was not deficient in the respects maintained by the applicant and that it is quite impossible to conclude that the jury were not entitled to convict on the material put before them. Whether one is able to categorise the Crown case as strong, is of no consequence. The fact is that there was, in my opinion, a quantity of evidence which entitled the jury, acting reasonably, to convict the applicant. In this respect, there is another factor which it is necessary to mention. The accused, as I previously stated, stood mute. Whilst it is true that he is not obliged to give evidence, and that his failure to do so was not capable of being made the subject of comment by the judge, or the prosecutor, and that the failure could not be regarded as evidence of guilt, it was nevertheless not irrelevant for all purposes, as the predecessor of this Court has previously noted[6]. In Neilan's case, the Court, comprising the Chief Justice, Brooking and Marks, JJ., said that the failure of an accused man to give evidence in a circumstantial case, similar to the present, was "not irrelevant for all purposes" in the appellate court. As their Honours said (at pages 65-66):

[62]

It was next argued by the applicant that the prosecutor presented a case to the jury which shifted its ground. In essence, as I understood him, the applicant was suggesting that the prosecutor started out to prove a case of murder on a premeditated basis, but subsequently resiled from that to suggest that the murder might have been unpremeditated. As I apprehend the point being made by the applicant, it centred around the state of the room in which the deceased was killed. It was put that the prosecutor had at one stage suggested that the deceased had been killed after the various contents in the room had been so arranged as to make it appear that an intruder had killed the deceased. Later when the evidence suggested that some of the drawers, which had been pulled out or upturned upon the floor, had "spattered" blood upon them, the prosecutor alleged, so it was contended, that the items removed from the drawers, and the drawers themselves, had been arranged in position before the deceased was killed. The complaint was, as I apprehend it, that the "first scenario" suggested an unpremeditated killing, whilst the latter one suggested a premeditated killing. This was the equivalent, so it was contended, of a failure properly to particularise the case being made by the Crown and, thus, to have rendered the trial unfair[8]. However, this was not a case where, as I read the transcript, the Crown had changed its ground at all. It was contending that the burglary was "staged" but was unable to say whether the "set up of the contents of the house" was constructed before the killing or after, or both. The applicant further contended that, in that event, the Crown's inability to "say one way or the other" rendered its case speculative. However, the essential point of the Crown's case was that the burglary was "staged". Although this matter was laboured by the applicant upon the hearing of this appeal, I am satisfied that it has no foundation in fact or law. The matter was addressed by both counsel in their addresses to the jury, with the defence counsel pointing to the fact that the evidence of Sergeant Ashley suggested clearly that this was "an interrupted burglary"; a fact which in itself should cast doubt on the Crown's proposition that the burglary was "staged". All of this was put squarely before the jury for its consideration by the trial judge in his directions, and no doubt contributed to his Honour's directions that the "staging" of the burglary as alleged by the Crown should not be a fact taken into account by the jury in determining guilt unless they were satisfied of it beyond reasonable doubt. This was not a case where, in my view, the Crown shifted its stance during the course of the trial; nor was it a case where the Crown's particularisation of the offence, or the manner of the presentation of the evidence, led to any unfairness to the accused.

[63]

The applicant next submitted that the prosecutor had failed in his duty in that he went beyond presenting the evidence dispassionately "to a position of winning at any cost". Again, my reading of the transcript does not bear out that proposition. Prosecutions which are based on circumstantial evidence almost inevitably promote circumstances in which competing submissions are made on behalf of the Crown and the defence as to the construction which should be placed upon the evidence by the jury. In this case, it seems to me that, in presenting the evidence, and in making his submissions to the jury about that evidence, the Crown prosecutor did not go beyond the bounds of his duty; nor did his conduct lead to any unfairness in the trial. No such contention was made at the trial by the defence counsel, nor was any such suggestion made by the trial judge. I have myself read the transcript of evidence and the transcript of addresses made by both counsel. It seems to me that the evidence was adduced fairly, and that the submissions made by each counsel to the jury at the conclusion of evidence were presented appropriately and well. Again, it must be said, that significant difficulties face a litigant in person in seeking to conduct his own appeal, particularly in a circumstantial case such as this one where the evidence is open to different constructions and counsel must, in the presentation of their respective cases, invite the jury to place a construction on that evidence which favours the conclusion for which they are contending. The fact that their presentations were "fair" is best reflected by the fact that neither counsel for the applicant, nor the judge, suggested that any unfairness had crept into the trial as a consequence of misconduct by the prosecutor. Although the applicant has submitted that there were 22 areas of unfairness to be found in the prosecutor's address, I have been unable to find, in respect of the matters alleged, any indication that the prosecutor had exceeded the bounds of his duty.

[64]

The next ground taken on behalf of the applicant was that his own counsel's performance was so deficient in a number of crucial areas that his defence was jeopardised. In support of this ground, the applicant alleged that his counsel had failed to apply to have excluded from the evidence certain of the statements which the applicant had made to the police on the grounds that he should have been "warned"; that his counsel had failed to apply to have the trial postponed or the jury discharged on the grounds of media bias; also on the basis that unfairness had crept into the trial because the Crown case had changed in the manner to which I have already referred; further, on the basis that his counsel had failed to call witnesses which he should have called; that his counsel had failed to take exception where exception should have been taken to the evidence; and on the basis that there had been a failure to put the case on behalf of the applicant in final address. It suffices to say that, in my view, none of these grounds has been made out. The applicant contended that his counsel should have sought to exclude the statement which the applicant had made to the police and which he had signed in the early hours of the morning of 15 February 2000. The application, so it was contended, should have been made pursuant to s.391B of the Crimes Act, which section is a procedural section governing the manner in which applications can be made to exclude evidence "solely by the exercise of a discretion". It is now contended by the applicant that he was a person who, at the relevant time, was "in custody" within the meaning of s.464(1) of the Crimes Act and should have been warned of his right to silence pursuant to s.464A(3) of the Crimes Act. In my view, there is nothing in this ground. At the relevant time, the applicant was not "in custody" within the meaning of the section. The police, at that stage, were simply seeking to inform themselves of circumstances pertinent to their investigations. At the relevant time the applicant was neither under arrest nor being questioned or investigated to determine his involvement in the commission of an offence within the meaning of sub-section (1) of s.464.

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