R v Rye [2007] VSCA 247

R v Rye [2007] VSCA 247 - VSCA 2007 case summary — Zoe

[11]

9 The deceased's two daughters travelled to Malaysia in December 2001 to spend Christmas with their father during their school holidays. The deceased travelled to Adelaide between 21 December 2001 and 15 January 2002 and stayed with her younger sister, Heather Gorham. During that time the applicant made several telephone calls a day to the deceased. Ms Gorham gave evidence that on two occasions, and whilst the deceased was staying with her in Adelaide, she had spoken to the applicant who had seemed to be angry. On other occasions she had heard the deceased sounding angry and animated in her telephone conversations with the applicant. In particular Ms Gorham gave evidence that in the late afternoon on Sunday 6 January she and the deceased were at her home entertaining friends. The deceased's mobile phone rang. The deceased answered it. Ms Gorham heard the deceased say 'No Craig, no'. She said that from what she heard the deceased say, she understood the discussion to be about money. Ms Gorham's evidence was that after that phone call ended there were a number of calls made to the deceased's mobile phone which, after looking at her mobile phone, the deceased said were from 'bloody Craig again'. The deceased did not answer those calls. After that, phone calls were made to Ms Gorham's mobile phone and to her home phone. On one occasion Ms Gorham answered her mobile phone and the applicant told her 'I want to speak to Sharon, put her on'. The deceased refused to speak to him. Ms Gorham turned off her mobile phone. Following that, the house phone began to ring. It was not answered. Telephone records tendered before the jury reveal that between 5.35 pm on 6 January 2002 and 12.21 am on 7 January 2002 a total of 47 phone calls originating either from the applicant's mobile phone or his home phone, were made to the deceased's mobile phone, or to the mobile phone or home phone of Ms Gorham. Ms Gorham gave evidence that early on the following morning she heard the deceased's mobile phone ring and she heard the deceased talking on the phone. The phone records reveal that a phone call was made from the applicant's mobile phone to the deceased's mobile phone at 5.20 am on 7 January 2002. The duration of that phone call was just over 12 minutes.

[21]

19 Another friend of the deceased, Suzanne Rolland, went shopping with the deceased on Wednesday 16 January 2002. Arrangements were made for the deceased to borrow Ms Rolland's lawnmower on Thursday 17 January 2002. The deceased borrowed the lawnmower on that date and told Ms Rolland that she was expecting a delivery of beds on Friday and that she would later have a discussion with Ms Rolland about dinner arrangements on Friday. There was evidence before the jury that the beds were in fact delivered at 5.45pm on Friday 18 January and placed on the porch as no-one appeared to be home. Ms Rolland endeavoured to telephone the deceased throughout Friday 18 January 2002 and found that her mobile phone was turned off. She rang the deceased's home phone and left a number of messages. At approximately 1 pm on Friday 18 January 2002 she drove to the house in Tamar Street. She observed that there was no car present and that the blinds were drawn. She observed an Optus card in the door. The evidence was that that card had been left in the door by an Optus technician when there was no answer at the door at 9.30 am that day. Ms Rolland said that she was concerned because 'no day goes by' that she and the deceased did not speak to each other. On Saturday 19 January 2002 she continued her endeavours to contact the deceased but without success. At 'about mid-morning' she left a message on the applicant's home phone answering machine expressing her concern. At approximately 11 am she drove to the Tamar Street house and again found no car at the house and found that the blinds were still drawn. There were beds on the verandah and with the help of her sons she moved them into the garden shed. At 4 pm that day she reported to police that she could not make contact with the deceased. At approximately 5 pm, having obtained the applicant's mobile phone number, she telephoned him. Ms Rolland told the applicant that she was concerned about the whereabouts of the deceased. The applicant informed her that he had seen the deceased on the previous Thursday and that she had told him she was going away to the beach because she needed time to think. He said that she wanted time away from everybody. He said that the deceased had said that she would switch off her phone. He told Ms Rolland that the deceased was tired of Ms Rolland telling her what to do. Ms Rolland told the applicant that she had contacted the police. He told her that that was not necessary and that the deceased had just gone away.

[25]

23 Michael Morris, who was a long term friend of the applicant gave evidence of having had a number of lengthy conversations with the applicant during December 2001 and January 2002 whereby the applicant spoke of his desire to resume his relationship with the deceased. On the evening of Thursday 17 January 2002 the applicant came to Mr Morris's hairdressing salon at approximately 7.15 pm. At the hairdressing salon the applicant discussed his relationship with the deceased with a mature lady friend of Mr Morris. Mr Morris and the applicant then returned to Mr Morris's home soon after 8.00 pm. Further discussion took place about the applicant's relationship with the deceased, in the course of which Mr Morris suggested that the applicant 'leave her alone'. In the course of that conversation the applicant told Mr Morris that he had been to the deceased's house to fix her washing machine that afternoon and that the deceased had been 'amicable'. The applicant told Mr Morris that he and the deceased had cuddled as he left and that she had touched him on the outside of his jeans. The applicant left Mr Morris's house at approximately 9.30 - 9.45 pm. There was evidence before the jury that the distance from Mr Morris's home to the home of the applicant was 35 kilometres and that it would take approximately 44 minutes to drive that distance. Mr Morris gave evidence that he had told the applicant to go 'straight home'. Mr Morris said that that was because the applicant had been 'talking about Sharon, and it was just a follow up' to his earlier advice. Mr Morris then went to bed. Soon afterwards the deceased telephoned him. Telephone records show that the deceased telephoned Mr Morris at his home at 10.39 pm on Thursday 17 January 2002. In the course of the conversation the deceased told Mr Morris that the applicant had come to her home that afternoon and that he had fixed her washing machine. She told him that the applicant had wanted to have sex with her. She said that she could not do that. There is no evidence that the deceased was seen by or spoken to by any person after this telephone conversation.

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Judgment (63 paragraphs)

Parties