//
[2008] VSCA 233
General information, not legal advice.
Court of Appeal (Vic)
2008-11-25
MAXWELL P, BUCHANAN and VINCENT JJA
Original judgment source is linked above.
CRIMINAL LAW - Conviction - Murder - Rape - Appeal against conviction - Admissions of attempted rape and manslaughter - Questions of irrelevant and inadmissible evidence - Evidence of good character - Application dismissed.
Mr S Ward, Acting Solicitor for Public Prosecutions
The judgment of the Court was delivered by Vincent JA.
1 The applicant was found guilty by the jury empanelled on his trial in the Supreme Court at Melbourne, on 30 November 2006, of the rape and murder of Lorelle Mary Makin at Melton in the State of Victoria on 15 September 2005.[1] He had no prior convictions.
2 He now seeks leave to appeal against his conviction for each of these offences.
The application for leave to appeal against conviction
3 The application is based upon a number of grounds, set out in the applicant's Full Statement of Grounds, that:
4 He has also provided the Court with an 'Outlined Submission for Appeal' that has limited connection to the grounds set out above. He there stated that:
5 Lorelle Mary Makin worked as a real estate agent at Elders Real Estate, Melton. Her duties involved taking phone calls, making appointments with people preparatory to listing their properties for sale, and arranging the inspection of properties by prospective purchasers.
6 The applicant was aged 33 years at the time of the offence and was unemployed. He had previously resided in Perth where he had worked as a martial arts instructor, truck driver and a security guard. He had immigrated to Australia from China when he was 16 years old in 1987.
7 In 1996 he started a relationship with Maree Swan, and they had a daughter together in 1999. Ms Swan and the child still reside in Western Australia. This relationship broke down in 2003 and the applicant moved to Melbourne, where he attempted to set up an import/export business that ultimately failed.
8 On Thursday 15 September 2005 Ms Makin left to go to work at approximately 8:15am. She had a brief telephone conversation with her daughter at 11:40am.
9 Timothy Farnan was the director of the company trading as Elders Real Estate, Melton. Between 4:00-4:30 Russell Parker notified Mr Farnan that the keys to a property in Milverton St were missing. Ms Makin had not been seen for some time. He checked her diary and observed that there was an entry for that day, '12:15, 30 Milverton St'. He went to some other properties to see if she was there and arrived at the Milverton St property at approximately 7:00pm.
10 After receiving a call to go to the house, the police obtained a key from the owner of the property. They found Ms Makin's body in the upstairs bathroom, partially covered with a plastic bag. They checked for signs of life, and formed the opinion that she was dead.
11 Ms Makin was naked from the waist down, and her top was lifted up, exposing her breasts. She had been gagged with clear packing tape.
12 The injuries sustained by the victim were, subsequent investigation revealed, consistent with asphyxia and rape. There were neck injuries of a kind that, according to the pathologist, could be expected in a case of manual neck compression or strangulation. However, the doctor opined, positional asphyxia could not be ruled out as a possibility.
13 Julie May, a real estate consultant, was employed with the victim at Elders Real Estate. She had never met the applicant, but had received an enquiry from him in relation to another property at an earlier date.
14 Maree Swan, the former de-facto partner of the applicant, earlier mentioned, received a telephone call from him at approximately 12:15pm on Thursday 15 September. He stated he had 'done something and couldn't change it.' When she asked what he had done, he responded that 'he couldn't tell her', but said that she should change their daughter's name. He also suggested that Ms Swan take their daughter away, perhaps even overseas.
15 Later that day, at approximately 5:15pm Perth time, she received another call from him saying that he had done something terrible, but he would not elaborate. He spoke of a real estate agent who, he said, was like her, and told her that 'She said something to me, I don't know what it was but I snapped and I was just so angry, it was uncontrollable anger, I was so angry, I don't remember what it was.' He then said 'I was choking her' and that he ran out of the house. They discussed the options available to him, namely either confess or flee. After this conversation Ms Swan called her former husband in Victoria. When she later received another phone call from the applicant, she told him to go to the police, and that she had to go to them as well.
16 One of the crime scene investigators, Senior Constable Darren Watson, went to the Melton Valley Golf Course on the 16 September where the victim's vehicle was discovered, and also that morning conducted a more detailed search of the Milverton St property. He observed blood stains on the carpet at the top of the stairs. No blood was found in the bathroom itself. He found a roll of tape on a table in the house.
17 Senior Constable Travis Baxter went to a car park in Flinders Lane where the applicant's vehicle, a black Ford sedan, had been located. He searched that vehicle and three bins close by. In one of the bins he found the set of keys belonging to the Milverton St property.
18 Detective Senior Constable Robert Nazaretian also attended the car park and inspected the vehicle. In one of the bins, he found a plastic bag, containing blue denim jeans, a white shirt, a grey t-shirt and a pair of white socks, and some white underpants. Also in the bin was a white Target bag, containing a light coloured jumper with a zip in the neck, clear packing tape and a note pad. After forensic testing, indentations revealed that a page of the note pad that had been removed had a number of phone numbers and names written on it of persons who had attended Elders Real Estate in Melton in June or July 2005.
19 Dr Morris Odell, a medical practitioner, took specimens from the genital area of the applicant. He said the injury suffered by the victim, the bruise to her vagina, was possibly caused by a blunt object such as a finger or a penis. Another doctor, Dr Dodd, who also saw the bruise, agreed that it was evidence that penetration had occurred.[2]
20 Detective Senior Sergeant Stephen White and Senior Sergeant Daly arrested the applicant on 16 September, and informed him of his rights. White spoke to the applicant and said 'Do you know what you're under arrest for?', the applicant replied 'I've done something bad.' White said 'What did you do?' he said 'I hurt somebody'. White said 'it's for the murder of the Lorelle Makin', the applicant replied 'did I kill somebody?' White replied 'yes, she's dead.' The applicant went on to say that prior to being arrested by police, he had decided to hand himself in.
21 Dr Rebecca Heyes is a forensic scientist. On 15 September she examined the crime scene at Milverton St. She looked specifically for signs of any semen present at the location. Semen stains were found on the boxer shorts of the accused, predominately on the inside front. Seminal stains were also detected on his jeans, adjacent to the front zip area. A small amount of semen was located on one of the socks found, however it was too small to provide a quality sample. Blood found on the front of the jumper matched the DNA profile of the victim. No semen was found on any of the victim's clothing. There was evidence of DNA originating from the applicant and the victim on the applicant's boxer shorts.
22 An interpreter gave evidence of a monitored conversation that he translated between the applicant and his mother in which the applicant discussed reporting the matter to police.
23 On September 19 Detective Sergeant White went to Melbourne Custody Centre with various items that had been found at the carpark in Flinders Lane. The applicant identified the jumper as his and said 'yes, that's mine, it's inside out, and there is blood on it.' Detective Senior Constable Stephen Sheahan went to the Hannah Watts park, near the area where the accused had left his car on 15 September. The applicant told the police, when interviewed, that it took him ten minutes from where he parked his car to arrive at the Milverton St property. Sheahan walked the distance and it took him approximately 24 minutes.
24 With respect to the contention that the evidence established that the applicant was guilty of the murder of Ms Makin, the Crown submitted that it was not disputed that he had intentionally killed her. The issue with respect to that charge was whether he possessed the necessary intention at the time he brought about her death.
25 Counsel drew attention to the evidence that in his interview the applicant spoke of being angry and choking the deceased. He had in fact, the prosecutor contended,
... gagged Ms Makin, stripped her, raped her, strangled her, placed her face down in a bath and covered her. He waited in the house for 45 minutes wondering what to do, then he cleaned up.[3]
The prosecutor reminded the jury that the applicant in his phone conversation with his mother stated that 'I know how to make things up.'
26 He drew attention to the evidence of Dr Dodd that it takes approximately 45 seconds to choke someone to an unconscious state; a long period of time, he submitted. Further, said the prosecutor, the applicant lied about where he left his car. It was not at a nearby playground, as he claimed, but one that was 25 minutes walk away. He took the tape used to gag the victim with him from his car, the prosecutor submitted.
27 The applicant tidied the bathroom and covered her with a black garbage bag of the same kind he used to dispose of his clothes. The Crown submitted that he took the black bag with him, as there were none in the house.
28 When these and all of the other surrounding circumstances were taken into account, there remained no room for doubt, he argued, that the applicant possessed the necessary murderous intent at the time that he killed the deceased.
29 Counsel appearing for the defence made clear from the outset of his address that the issues were whether the Crown had proved rape as opposed to attempted rape, and manslaughter as opposed to murder. The defence case was that, while the applicant had admittedly committed the lesser offences, the Crown had not proved either of the more serious offences.
30 In relation to the count of rape, the question, he submitted, was whether the prosecution had established beyond reasonable doubt that the applicant intentionally penetrated the victim, and whether it had been established, according to the standard of proof in a criminal trial, that the applicant possessed the intention to kill or cause really serious injury at the time that he acted.
31 Counsel argued that the admissions made in his client's police interview were admissions as to attempted rape, not rape itself, and should give rise to a reasonable doubt that penetration actually occurred. He submitted that the Crown to some degree relied on inferences to show that his client's actions were premeditated. However, he said, that was not an element of either offence and in any event the jury could not be satisfied that the inferences could be safely drawn. The applicant had offered as the explanation for his wish to view various houses a genuine interest in houses and the motivation that this gave him to work harder in order to afford to purchase one. There was nothing unreasonable about that explanation, or the conduct itself, that would justify its rejection, he argued.
32 The applicant had given as the explanation for parking his car some distance away that he desired to go for a walk as he was feeling unwell. He said that he had used a public phone to make his calls to Elders Real Estate in order to use up a phone card. Again, counsel contended, there was nothing unreasonable in his explanation of these matters.
33 The defence submitted that the roll of tape and the rubbish bags could have been in the house and the owner's memory was defective.
34 Counsel submitted that the absence of any of the applicant's DNA in the victim's vaginal area was significant. It might be possible for penetration without any emission but 'might' was, he argued, the operative word, and this could not constitute satisfaction beyond reasonable doubt.[4] The semen found on the applicant was consistent with him ejaculating inside his garments. There was no link between any sperm and the vaginal bruise. The defence again reiterated it was not for the applicant to prove lack of penetration, but for the Crown to prove that it had occurred. The bruise to the vaginal area could have been caused in the struggle, so it was argued.
35 There were seven reasons submitted as to why the jury should have reasonable doubt, as follows:
First, there was no evidence of any premeditation or plan to commit murder. Secondly, no weapons were used or located in the house. The [applicant] was skilled in martial arts involving the use of weapons, and if the murder was pre planned you might expect that the accused would take a weapon with him ... The absence of any ligature or weapon made it more likely that the attack in the bathroom was spontaneous and not premeditated. Thirdly, the deceased had wet hair when discovered but no water was found in the bath. This supported [the applicant's] account of putting water on the deceased to see if she would wake up ... a person with a murderous intent would not try to revive their intended victim ... It was submitted by [defence counsel] that ultimately Dr Dodd as the expert could not differentiate between the possibility of manual asphyxia and positional asphyxia ... Fourthly, the [applicant's] first conversation with Maree Swan suggested that the accused never intended the death of the deceased ... Fifthly, when arrested at Queens Road the [applicant] said he had done something bad, but when told he was under arrest for the murder of Lorelle Makin, his response was 'Did I kill her?' This indicated, according to [defence counsel], that her was holding onto the hope that she was still alive. Sixthly, he told police in the record of interview that he thought of going back to check her to see if she was all right. He went on to tell the police that he did not know if she was dead or not. These responses [defence counsel] submitted were those you would expect from a man who intentionally caused death by an unlawful dangerous act. Seventh, there were no admissions or denials of murderous intent by the accused. He was never asked by police investigators as to what his intent as at the time ... Finally, it was [defence counsel's] submission that the Crown had not discharged its burden of proving rape and murder beyond reasonable doubt.
36 The jury returned a verdict of guilty on both counts.
37 The applicant was not represented in the course of the hearing before us and chose not to appear personally, but he did avail himself of the opportunity to participate through a video link with the prison in which he is presently located.
38 As we have earlier pointed out, the 'Outlined Submission for Appeal' bears little relationship to the grounds set out in his application and contains a number of quite separate complaints. In view of the applicant's situation as an unrepresented litigant, we have approached these complaints as separate grounds.
39 This ground relates to the admission of evidence of the finding of spermatozoa, that could not be linked to the applicant, upon the body of the deceased. At the trial, counsel for the applicant argued that 'without the connection to the accused there is a risk that the jury will jump to conclusions'.
In the accused's record of interview he speaks of his endeavours to penetrate the deceased. He stripped her for that purpose. There were areas of semen found on his own clothing, which DNA analysis attributed to him. In addition, there are spermatozoa (sic) found in an area of the deceased's body where you would expect such sperm to be deposited were an attempt to penetrate made or, indeed, actual penetration occur. It is found on the body at a time proximate to the event and when there is no suggestion that area of the body had been washed or interfered with in any other way.
In my view, the finding of those spermatozoa in that area is sufficiently probative to leave to the jury in all the circumstances, including those revealed in the accused's record of interview.[5]
41 This view was not only open but obviously correct in the circumstances. There is no substance to this complaint.
42 This ground can also be addressed quite briefly. His Honour in his ruling on the matter stated -
Objection is taken to the admission of the evidence of the daughter of the deceased, Samantha Makin, essentially on the basis that it is unnecessary, if not irrelevant, because the deceased's activities of the day, and particularly those that occurred closer to the time of disappearance can be given by other people.
The evidence itself is not of a nature prejudicial to the accused and, in my view, a jury is entitled to have some background and context in matters such as this. As [the prosecutor] puts it, the deceased is not just a number. In my view, the evidence is admissible, in effect, to set the scene for what occurred at a later time.[6]
43 Again there is nothing to suggest that the judge fell into error and no basis upon which the admission of this evidence could have occasioned a miscarriage of justice.
45 A witness, John Handley, gave evidence-in-chief that to his recollection there was only one roll of packing tape of the kind used to gag the deceased in the house at the time that she was killed and that it was almost certainly located downstairs.
46 The significance of this evidence was that the prosecution were contending that the rubbish bags and tape had been taken to the house by the applicant and indicated that the conduct there had been premeditated. It will be remembered that a roll was found by the police in a bin in Flinders Lane. As we have earlier indicated in the summary of the arguments, the defence argued that the inference of premeditation could not be safely drawn. The finding of a roll of tape in the upper part of the house by the police was obviously relevant in this context. The witness was then shown in cross-examination his statement to the police in which he indicated that he had been shown a roll of tape by the police member to whom the statement was made. He said that he could not remember being shown some clear tape and that without his police statement 'I wouldn't even remember that there was ever tape on the table'. However he accepted that what he told the police at the time would have been correct. Although he adopted the truth of his earlier statement in his evidence, counsel for the applicant nevertheless submitted to the trial judge that it should be admitted as a prior inconsistent version.
Having said that he's got no memory of having made such a statement before and that there was indeed - he believed there is but one tape in the house, that there was not this other tape even in existence. He wouldn't concede that until he was shown that conversation with Mr Sheahan. So that's where the inconsistency lies, ...[7]
The gist of his evidence is I made a statement at the time, what was in the statement was true, I signed it as being true, today as I stand here over a year later I've got no recollection of what I said, but if it was in the statement and I signed it it's true. And that's not a prior inconsistent statement in my view.[8]
50 With respect to defence counsel's request that he provide the jury with a direction as to the accused's good character, the trial judge said -
In considering the question of character evidence the basal proposition which must be borne in mind is that character is indivisible. Its genesis lies in reputation, and it is a different concept from that of credibility. Accordingly, the character of the accused cannot be divorced from the admitted attempted rape or the admitted fatal assault upon the deceased. Nor can it be divided up between the accused's actions and his subsequent account of them to police.[9]
51 As the High Court stated in Simic v The Queen[10]
In Attwood v The Queen, this Court said that an accused person may adduce evidence of his good character on a criminal trial 'as a fact or matter making it unlikely that he committed the crime charged'. The Court said, 'evidence of good character is regarded as really bearing on the probability or improbability of guilt. As Cockburn CJ said: "The fact that a man has an unblemished reputation leads to the presumption that he is incapable of committing the crime for which he is being tried'". (The passage quoted by the Court is from the judgment in Reg v Rowton.) This did not purport to be a full statement of the law on the subject, and it is not necessary to discuss the matter further in the present case. However, it is obvious that whether evidence of good character will be of any avail to an accused person depends on the strength of the evidence supporting the charge.
There is no rule of law that in every case in which evidence of good character is given the judge must give a direction as to the manner in which it can be used. We agree with what was said on this point in Reg v Schmahl.
52 There is something ludicrous about the contention that an individual, whose very defence to the charges against him involved admitting that he was guilty of attempted rape and manslaughter, could be put before the jury as a person of good character. Those admissions, of very grave criminal conduct, deprived the applicant of the ability to rely in any meaningful way on his previous good character. His counsel all but conceded this at trial.[11]
54 There is no substance to this ground. The background and reasons of the trial judge for making the impugned decision are set out in his ruling.
The defence has sought to exhibit material extracted from the accused's computer and headed 'My Diary'. It contains a number of entries, commencing on 14 December 2004, and continuing until 12 September 2005. the entries cover various topics, and demonstrate an intense devotion by the accused to his daughter.
It was put by the defence that the document was relevant on the issues of first, the question of a premeditated attack, and secondly, the history of association between the accused and the deceased.
To this end it was sought to rely on the diary in a global way.
It was submitted that it was significant that the diary contained no mention at all of Lorelle Makin. Specifically, it was sought to place reliance on the entries of 5 July, and 3 August 2005 after communication had been had with the Melton Real Estate Agency.
Other aspects of the material were said to be capable of corroborating parts of the defence case.
Apart from the question of whether or not the material is self-serving in the absence of admissions against interest, it is prima facie hearsay. It could never be admitted as to its truth. It may, in certain circumstances, be admissible to demonstrate a course of conduct or a state of mind inconsistent with the Crown case and hence tending to rebut such case.
In the present case, however, none of the material possesses that quality. For example, the absence of diary entries about the accused's attitude towards the deceased in the series of desultory entries, cannot prove anything about that attitude or the accused's state of mind.
Accordingly, I regard the material as irrelevant. It should also be borne in mind that if such material were to be admitted, the interests of balance might require the admission into evidence of the other computer material demonstrating the accused's obsession with sex. In any event I rule the proposed exhibit is inadmissible.[12]
55 The ruling is clearly correct. We would also point out that the references to what he referred to in the diary as his 'constant craves for sex' could hardly have assisted his defence.
56 In the judge's charge, the prosecution case was placed before the jury on the sole basis of penile/vaginal penetration.
57 However, the jury returned with the question 'is a finger in the vaginal area, rape'. His Honour responded -
The answer to that question is yes. You can have such a thing as digital rape but the finger would have had to be have been inserted with the specific intention for sexual penetration. And that's not the Crown case. The Crown case is that it was the penis that was inserted. Any insertion of the finger, there's no evidence of that it and if it did occur there's no evidence or suggestion that it was done with the intent to sexually penetrate.[13]
58 When they again returned, whatever doubts or possibilities the jury may have entertained to that time had been removed. His Honour's instructions were clear and simple and it can be safely assumed were followed by the jury.
60 This document, it appears, was prepared by the applicant himself and the claims made in it are unclear. He did not avail himself of the opportunity given at the hearing before us to elaborate upon any of them. We have accordingly interpreted them broadly and considered whether any could reasonably give rise to the possibility that his trial was rendered unfair.
61 The first item relates to his legal representation. His solicitor, who acted on his behalf throughout the entire process, was an experienced and accredited criminal law specialist and there is no reason whatever to suspect that he was inhibited by any conflict of interest or that he did not act in strict accordance with his obligations to his client and the ethical standards expected of a legal practitioner.
62 Items 2 and 3 suggest that there was some unfairness in the conduct of his police interview. However, subject to some minor deletions, it was admitted by agreement with his counsel at the trial. There is nothing in the interview itself that can reasonably evoke concern as to the voluntariness of any of the applicant's answers or which suggests that he may have experienced difficulty understanding or answering any of the questions asked. It is apparent from the matters already addressed that his counsel at the trial was alert to any objections to evidence that might be made on his client's behalf and it is significant that he made no application to exclude this evidence or any part of it. Indeed, a degree of reliance was placed upon his statements to support his defence.
63 With respect to item 4, as the Crown submission stated -
... this appears to relate to the translation of a telephone conversation between the appellant and his mother which was translated into English from the South Fujian dialect by the witness Bo Ai. A voir dire was conducted into the accuracy of this translation. The appellant was afforded an opportunity to listen again to the conversation later in the trial before Mr Ai gave his evidence before the jury. Mr Ai gave evidence before the jury. The recording of the conversation together with an amended translation was tendered as Ex 27. defence counsel cross-examined the witness as to the accuracy of his translation. No evidence was called to contradict Mr Ai's evidence.[14]
Again there is no reasonable basis for any concern about this evidence or its potential to cause a miscarriage of justice.
64 Item 5 refers to a report of Mr Ian Joblin, a forensic psychologist, tendered by the applicant's counsel in the course of the plea hearing. It is irrelevant to any issues affecting the trial.
65 Items 6 and 7 contains a broad assertion that there was no evidence to support the convictions. As the summary set out earlier makes clear, that claim is simply not sustainable.
66 Item 8 raises the point already addressed in Ground 4 and does not require further attention.
67 Item 9. There is no indication of the relevance of the evidence which may have been given by either of these persons and, when regard is had to the transcript, no reason to suppose that his experienced legal representatives may have ignored important material in the conduct of his defence.
68 Item 10 contains no detail with respect to the 'unrelated information' that the Director of Public Prosecutions is said to have provided the media prior to the trial. No reference to any possible contamination of this kind was raised by defence counsel during the trial, as might be expected if some offensive prejudicial statement or information had been so disseminated.
69 Item 11 has been addressed when dealing with ground 5.
70 Item 12 relates to evidence that three mobile phones were located in the applicant's car. There was also a landline telephone in his home. However his call to the deceased to arrange an inspection of the house in which her body was found was made from a public telephone booth. The prosecution argued before the jury that this was indicative of premeditation. There was no cross-examination directed towards this evidence and it is difficult to see how the jury could have been misled by its introduction. The defence explanation for the use of the public phone was that the applicant wanted to use his phone card. Whether or not that explanation was plausible in the circumstances was properly left for the jury's consideration. In any event, as the judge correctly instructed the jury, the applicant's guilt did not depend upon proof of premeditation.
71 Finally, concerning item 13, there is nothing in the material before us that can be seen to present the possibility of any defence based upon or connected to any respect with the applicant's medical record or physical condition at the time or that requires or suggests that some exploration of that aspect should have been undertaken.
72 Upon a review of the evidence and issues and the carefully constructed charge of the trial judge in accordance with the principles laid down in M v R, it is apparent that the trial was properly conducted throughout. The issues with which the jury was confronted were relatively straightforward and there is no reason to suppose that there may have been misunderstanding concerning any of them. The judge's charge was thorough and properly addressed all matters in relation to which he was required to direct the jury. The verdicts at which they then arrived were clearly open in the circumstances.
73 There being no justification for intervention by this Court on the basis of the considerations discussed in M v R, and no substance to any of the complaints advanced on the grounds of appeal or which by implication emerge from the 'outlined submission for appeal' filed by the applicant, the application must be dismissed.
[1] The sentencing judge, on 28 February 2007, imposed a term of imprisonment of 10 years for the count of rape, and 22 years for the count of murder. The sentencing judge directed that 5 years of the sentence for rape be served cumulatively upon that imposed for the murder, making a total effective sentence of 27 years' imprisonment. The non-parole period was fixed at 22 years' imprisonment.
[2] This evidence was not challenged in cross-examination. [T350]
[10] [1980] HCA 25; (1980) 144 CLR 319, 333-334.
R
Liu [2008] VSCA 233
(1980) 144 CLR 319