R v Koeleman [2000] VSCA 141

[2000] VSCA 141

Court of Appeal (Vic)|2000-08-11|Before: TADGELL, CALLAWAY and BUCHANAN, JJ.A.

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Source facts

Court

Court of Appeal (Vic)

Decision date

2000-08-11

Before

TADGELL, CALLAWAY and BUCHANAN, JJ.A.

Source

Original judgment source is linked above.

Judgment (113 paragraphs)

[1]

The applicant was born on 20 July 1968 and therefore 23 years of age at the time of the offence. He is an avowed homosexual, a characteristic of significance having regard to the circumstances of Arnoldt's death, to the nature of the information which led the police to suspect and later charge the applicant with his murder and to the witnesses on whom the Crown case hinged.

[2]

One of the cardinal Crown witnesses was another homosexual, Jamie Dillon Martorana, some two years the applicant's junior. His evidence was in summary this. He and the applicant had first met in 1986. They soon formed a sexual relationship that lasted about seven months and afterwards remained close friends. The applicant telephoned Martorana in April 1997 at the Western General Hospital, where he was then employed as an attendant at the inquiries desk, and arranged to go and visit him there "for a chat". The applicant arrived at the hospital at about 1 a.m. on 10 April and spoke with Martorana, alone, for several hours. In the course of a long conversation he told Martorana - save as indicated I paraphrase it - that in about 1991 he had had a "sexual episode" with a man in a park in Victoria Street in Brunswick and that, while having oral sex with him, he stabbed him to death and enjoyed it; that it was "just like Cruising" (a motion picture set in New York concerning a series of murders of homosexual men by stabbing in the course of homosexual exploits); that he did not feel particularly guilty about the crime; that he had used a knife which he had kept but which had later been stolen in a burglary while he had been living at a place called "Rosies" in Fitzroy; and that he would probably "fit in if he did go to gaol".

[4]

The applicant later telephoned Dolan and they arranged to meet for lunch on 8 May. They met at a restaurant on that day, alone, and Dolan covertly tape-recorded their conversation, which included statements by the applicant in the terms or to the effect following: he had scared Martorana "with a confession that I had to get off my chest"; "I went out one night and really had my fantasy. And I liked it...I just wanted to hurt someone. It's been a long time building up sort of thing...I wanted to get power over someone and make them beg, beg me to stop, sort of thing, and the more I thought about it at the time I just - it sort've like came up, overwhelmed me on the night and I just went out to a beat and picked someone up and knifed him, used a knife...I felt very satisfied afterwards"; he was "still coming out"; it happened five years ago; and "it's been getting very strong the last six months"; "How I did was with a knife...I killed a guy...I hadn't intend on that happening...it happened and I didn't care which was scary as hell...within ten minutes I was out the door and - I'd just come back from overseas and my boyfriend was living at home, studying...I went out with a knife in my pocket...a friend of mine gave it to, when he passed away he left it his knife...one of those wooden sheaths on it and all patterned and it was a purple colour. It was really menacing...it was a silver blade that was really shiny and no ridges...so I went out and had it in my leather jacket...it's the only time I've worn it"; he went to a "beat" in Victoria Street, Brunswick, to a toilet block, "but I didn't go in, it was like raining actually. And he smiled at me. He wasn't attractive or anything like that. I just knew he was the one...And I just wanted to hurt, frighten him more than anything. I didn't want to hold the guy hostage or anything. I was just getting the weapon ready and having him beg, beg me not to do anything and that sort've came into it. And sort've like I lost control. And I panicked a bit at the time...he gave me a head job and I came as I did it."; that it happened near a little shed at the park and the man had his pants down around his ankles; he stabbed the man through the "top of his back...twice through his back and that's the time I lost control. He stood up and staggered...Got him again through the front...Straight through the heart"; he stabbed him "about five times... and one or two times in the heart".

[10]

The trial judge conducted a voir dire, before the empanelment of a jury, with a view to ruling on submissions that the Crown should not be allowed to lead, by way of confession, direct reported evidence and tape recordings and transcripts of the conversations that the applicant had had with Martorana on 25 April, with Martorana and Dolan on 1 May and with Dolan on 8 May 1997. His Honour heard evidence on the voir dire from Martorana, from Dolan, from Sergeant Piper (formerly a Detective Senior Constable who had chiefly co-ordinated the exercise after Martorana had made contact with the police) and from the applicant himself. The applicant's reasons expressed on the voir dire for having spoken as he did to Martorana on 25 April, and to Martorana and Dolan in May, were along the same lines, though not altogether the same, as those that he ultimately gave in evidence before the jury. The principal submission for the defence, after the voir dire was had, was that the applicant's confessional statements made in the course of the relevant conversations had not been made voluntarily in the exercise of free choice; and that he had been offered an inducement to make them. The material was objected to for the applicant on the alternative footing that to admit it would be unfair and contrary to public policy. Having heard argument on either side in court, and having listened to the tape-recorded material and read transcripts of it out of court, the learned judge ruled against the submissions. His Honour expressed himself to be satisfied that, in the relevant sense, the statements of the applicant had been voluntary, that there had been no inducement to make them, that there had been no unfairness in obtaining them and that there was no reason of public policy why they should not be received. That ruling is now challenged under cover of ground 2 of the application, although not all of the submissions that were made at the trial were adopted here. This ground simply alleges that the judge erred in the exercise of his discretion "in that he failed to exclude the evidence of the `confessions' made to" the witnesses Martorana and Dolan.

[37]

(i) A curved incision to the left side of the front of the chest, measuring 3.6 cm by .8cm. This was the injury that had caused the damage mentioned in [1] above, penetrating to a depth of approximately 10 cm.

(ii) A 7 cm incision to the upper back, being the longest injury to the upper back, penetrating the eighth left intercostal space, between the eighth and ninth ribs, and the lower left lobe of the lung for approximately 5 cm to a total depth of approximately 7 cm.

(iii) An injury to the right upper back, penetrating the muscles attached to the scapula, and nicking the scapula itself, to a total depth of approximately 5cm.

(iv) A 2 cm incision on the right upper back, entering the chest wall in the eighth right intercostal space, between the eighth and ninth ribs, to a total depth of approximately 18 cm.

(v) A 2 cm incision to the right upper back, penetrating the lower right lobe and the upper right lobe of the lung and lacerating the sixth right intercostal muscle, between the sixth and seventh ribs laterally, fracturing the right fifth rib. This injury was 18 centimetres inferior to the vertebra prominens and 8 centimetres to the right of the mid-line, and the uppermost of the two injuries quite close together on the right upper back.

(vi) A 2 cm incision on the right upper back, being the lower of two almost parallel injuries, entering the right intercostal space, penetrating the right lower lobe of the lung to a depth of approximately 5 cm, and penetrating to a total depth of approximately 7 cm.

(vii) An 8 cm superficial incision, caused by a sharp object, running down the dorsum of the left middle finger.

(viii) An irregular laceration on the dorsum of the left middle finger, beginning at the knuckle and extending to the lower knuckle, and consistent with its being caused by a blunt instrument, such as the handle of a knife, a piece of stone or wood or a hard surface such as concrete.

(ix) A 1 cm diameter superficial abrasion over the medial border of the left eyebrow, which may have been caused by contact with an object or the ground.

[40]

The learned judge took some trouble in his charge to deal with the epigram that had become a central aspect of defence counsel's address, having intimated beforehand that, in the light of counsel's conduct of the defence case, he proposed to do so. After defence counsel had embarked on his address, and in the absence of the jury, his Honour remarked that what was put "at the forefront of your address is a total physical repudiation of the Crown case, and not one question was asked of Dr Robertson by you of that central matter...I would have thought it classically is a matter upon which an expert witness would be asked questions, including the movement of the body, the relativity of the attacker to the victim, and all the other matters which would bear on the question of the width of the injury and the width of the blade." Counsel responded by saying, in effect, that the proposition he was putting to the jury was no more than common sense. "There is absolutely no way known", he said, "regardless of the angle of entry, regardless of the movement of the body, that four centimetres or five centimetres could go into two centimetres. It is commonsensical and not necessary." The judge persisted: "All you needed to do was ask one two-line question: `Doctor, it is clear that those injuries could not have been inflicted by a knife that was four or five centimetres wide ?', and if your projection of Dr Robertson's expertise and mental state is correct she would have given you a one-word answer, `Yes'." Upon this counsel unceremoniously and not a little impertinently joined issue: "I disagree, and that is my submission on the topic." Thereupon prosecuting counsel submitted that "a strong Browne v. Dunn direction" was called for and that, unless it was given, the jury should be discharged. The judge was not willing to discharge the jury but he was faced with what he perceived to be a question of some nicety, observing that he was concerned to be fair to the jury "without being unduly hard on" defence counsel. His Honour stated his impression that counsel's decision not to cross-examine Dr Robertson had been "entirely ethical" but erroneous - "not a deliberate unethical step...but I think you made a mistake...that is really what we have to deal with. How is the jury going to handle your argument when it hasn't had the benefit of any evidence on it ?" In the event defence counsel resumed and completed his address to the jury without, it seems, resiling from his position previously adopted.

[60]

Another affidavit, also sworn on 21 February this year, by Dr Richard Byron Collins, a consultant forensic pathologist, purporting to offer expert evidence in support of the proposition that "four or five into two cannot go" was tendered in support of this application. The deponent swore that he had been requested (presumably by the applicant's legal advisers at the time) to provide expert opinion "with respect to the matter of Jamie Koeleman" and had provided reports dated 8 September 1997 and 18 February 1999. The affidavit does not specifically disclose their content save to indicate that they did not "provide an opinion on any likely weapon and whether the wound sustained by the deceased resulted from, or might have resulted from, the use of any particular weapon". He swore further that he received from the applicant's present solicitors, on dates after the applicant's last trial, some unidentified photographs, an unidentified autopsy report of Dr Robertson and some rather vaguely identified evidence from her and from Chan Cheng Uoy and that, having reviewed that material, he exhibited a report dated 20 December 1999. I assume that the evidence referred to was given at the applicant's last trial and that the other material relates to the deceased man, Arnoldt. The applicant's solicitors apparently sought the report from Dr Collins by way of comment "concerning the weapon alleged by the Crown to have been used by Mr Koeleman in the stabbing of the late Francis Arnoldt". In common with the solicitors' request for it, the report appears to make the assumption that the case put forward by the Crown was that the knife used to kill the deceased was the knife that was described by Uoy. Further, the report indicates that Dr Collins had no description of "the actual shape of [the] Egyptian knife". Making an assumption about its shape, Dr Collins has given his opinion that "...it would be IMPOSSIBLE [sic] to cause stab wounds such as injuries numbered (1) - 10 cm in depth and (5) - 18 cm in depth, as described in the autopsy report prepared by Dr S. Robertson. It would be highly unlikely for the remainder of the stab/incised wounds to result from this particular size of weapon." Dr Collins swore a supplementary affidavit on 8 March this year, that was tendered to us, qualifying his earlier opinion to some extent. I need not refer to it save to say that it is apparent from it that he remained unaware of the shape of the knife described by Uoy and continued to find it necessary to speculate about it.

[76]

The primary argument for the applicant under cover of ground 6 was that the relative dimensions of the deceased's wounds and of the Egyptian knife raise such a doubt as to his guilt that the verdict should not be permitted to stand. It is said that the doubt is demonstrated by the evidence of Dr Collins, which this Court ought to receive. Plainly enough, however, the evidence of Dr Collins is not fresh evidence in the sense that it was not available to the applicant to be called at trial in March 1999. Dr Collins had been consulted on behalf of the applicant and had already provided two reports, one in September 1997 and the other in February 1999, so that his opinion was no doubt available to be led in evidence at the March trial. That being so, his evidence should be received and acted on by this Court now only if it is sufficient to convince the Court, on the Court's own view of it, that the verdict of guilty should not be allowed to stand: so much follows from the reasoning of Barwick, C.J. in Ratten v. The Queen,[19] as counsel for the applicant acknowledged. So long, therefore, as that reasoning stands undisturbed it is necessary (as counsel further acknowledged) that, in order to succeed on his primary argument, he needs to satisfy this Court that the evidence of Dr Collins, if received, ought to result in an acquittal. That being so, I cannot accede to the argument that the evidence of Dr Collins should be received, for it is to my mind quite inconclusive as to the applicant's implication in the murder. It may throw doubt on the thesis that the deceased was killed with the Egyptian knife. The jury were in my opinion, however, well entitled to be satisfied beyond reasonable doubt that the applicant attacked the deceased man and stabbed him, whether or not they were satisfied beyond reasonable doubt that the instrument he used was the knife described by the witness Uoy or that it answered the description of a knife that Uoy gave. The jury were entitled to regard the evidence of the description and the dimensions of the Egyptian knife as comparatively feeble and inconsequential, in the light of the evidence taken as a whole, in providing a picture of the applicant's implication. The first basis advanced for the reception of the evidence of Dr Collins is, therefore, in my opinion to be rejected.

[80]

As the trial judge has implied in his report, the applicant's affidavit is notably incomplete; and I should not be inclined to regard the affidavit as making an entirely frank statement about the relevant discussions between the applicant and his counsel. If the evidence of Dr Robertson on the subject of the relation between the wounds and the instrument that inflicted them was seen to be critical to the defence case, or even of secondary importance to it, there were four opportunities provided to those representing the applicant to cross-examine her about it. None was taken. As the judge pointed out at the third trial, a question of the most elementary kind would have sufficed. The applicant's affidavit, on one view of it, suggests in paragraph 15 that a realisation that what he calls "the Egyptian knife issue" was of importance emerged only at the end of the second trial, after the jury had shown interest in it. Paragraph 16 of the affidavit, as I have noted, is unspecific as to when "the issue was discussed" with counsel. The affidavit conspicuously omits to say that the applicant discussed it at any time between the end of the second trial and the commencement of the third, or at any time during the third before the evidence closed. In particular, the applicant has not condescended to refer to any instructions that he gave to his solicitor or counsel touching the relativity of the width of the knife wounds (as opposed to their depth) and the width of the Egyptian knife. Nor has Dr Collins denied that defence counsel spoke to him "about the matter", as the applicant has sworn he advised him he would. If counsel did not speak to Dr Collins after telling the applicant he would, or if he did speak to Dr Collins and ignored his opinion, one would expect Dr Collins's evidence to reveal it. Had the applicant's affidavit been prepared by him without professional assistance one might look benignly on its vagueness and its other shortcomings. As it is, the affidavits sworn by both the applicant and Dr Collins were evidently prepared with deliberation and engrossed by the same firm of solicitors with the intention that each should complement the others. What the affidavits do not say, as well as what they do, leaves them wanting as persuasive evidence of incompetence or intransigence on the part of the applicant's solicitors or counsel. It seems plain enough that defence counsel chose deliberately not only to refrain from cross-examining Dr Robertson on the matter of the relative width of the wounds and of the Egyptian knife but to decline to call evidence of the opinion of Dr Collins about it. To speculate upon a reason for that course is not ultimately profitable, but it is not difficult to think of one or more by which it might well have been encouraged. It was a peculiarity of the case that the identity of the weapon with which the deceased was certainly stabbed was itself a matter of no certainty at all. As it was, the case appears to have gone to the jury on the assumption (for want of more) that the weapon used was or may have been the Egyptian knife of which the applicant had spoken to Martorana and Dolan. That, however, as the judge pointed out in his charge, was not a fact that the Crown had necessarily to prove. It is nevertheless understandable that in the circumstances the defence should have sought to put an argument to the jury based on a supposed incongruity between the weapon and the wounds, as though the Crown case did in some sense rely on the Egyptian knife, the applicant's confessions having been put forward by the Crown as substantially true.

[83]

I refer briefly to ground 5 of the application. Because this ground was not the subject of separate argument, I can only assume that it was intended to be dealt with in association, so to speak, with what was said to be the unsatisfactory conduct of defence counsel complained of under cover of ground 6. I think the two grounds must fall together. Ground 5, it will be noted, does not complain of the judge's intervention in counsel's final address to point out what he regarded as an erroneous and impermissible course of conduct. That course having been advisedly pursued, as I have characterised it, and persisted with notwithstanding the judge's intervention, his Honour was faced with what he evidently saw as a threat to the integrity of the trial. The notion that some at least of the deceased's injuries could not have been caused by the Egyptian knife, and that therefore the applicant should not be held to have inflicted any of them, floated at the time it was as a novelty, was calculated if left unbridled to lead to predictable mischief. It bade fair, as it seems to me, to induce or even to encourage the jury to investigate, and perhaps to speculate on, just the kinds of considerations that might have dissuaded counsel from eliciting evidence of the kind which the judge regarded as a proper foundation for such considerations. The Crown, having addressed the jury by the time the novelty was launched, not surprisingly pressed for their discharge in the absence of a strong direction from the judge. His Honour's expressed concern to be fair to the jury, but not at the avoidable expense of defence counsel, was in other words, if I may presume to say so, a concern to save the trial from unwarrantable unfairness. This was a concern that his Honour was entitled - indeed obliged - to sustain; and the decision to refer to the matter in his charge in the matter-of-fact way he did, rather than to accede in terms to the Crown's submission, was in my opinion well justified. Remembering again that a fair trial is not a one-way street, the portion of the charge now complained of should not be seen as a design merely to redress the Crown's position of disadvantage, brought about by what was complained of as an ambush. In keeping the balance in conformity with the concept of a fair trial, the judge was equally required to do what he could to avoid the prospect that the jury should reach any verdict that might be seen to depend on speculation. Such a verdict, if one of not guilty, might be seen as objectively unacceptable; but correspondingly, if one of guilty, it might run the risk of being held unsafe and unsatisfactory. So much for ground 5.