R v Stafford [1992] QCA 269

Court of Appeal (Qld)|1992-08-25

IN THE COURT OF APPEAL [1992] QCA 269

This is an appeal against conviction on a charge that on or about 23 September 1991 the appellant murdered Leanne Mary Holland. The notice of appeal contained two grounds, neither of which was in the event pursued. The appellant sought and was granted leave to add two further grounds of appeal. They were:

"The learned trial judge erred in law in his directions to the jury concerning the interest of the appellant in the outcome of the trial, and its consequences for the credibility of the appellant, thus causing a miscarriage of justice;"

"The learned trial judge erred in law in admitting evidence from Rosemary Ashby of the mental makeup, character or personality of the offender and the possible motivations of the offender."

It was on these and only these grounds that the appeal was argued.

In The Queen v. Roach (CA No. 185 of 1991, CA No. 214 of 1991, delivered on 29 April 1992) this Court, as part of the ratio of its decision, stated the effect of the decision of the High Court in Robinson v. The Queen (No. 2) [1991] HCA 38; (1991) 65 A.L.J.R. 644. In doing so, it overruled two decisions of the Court of Criminal Appeal, The Queen v. Wilson (CA No. 175 of 1991, delivered on 11 December 1991) and The Queen v. Allen (CA No. 171 of 1991, delivered on 13 December 1991). Roach was followed by this Court in The Queen v. Westropp (CA No. 219 of 1991, delivered on 29 April 1992).

The difference in views between the Court of Criminal Appeal, expressed in Wilson and Allen, and this Court as to the effect of Robinson appears to stem from one sentence in the judgment in that case. At 646 the Court said:

"But to direct a jury that they should evaluate evidence on the basis of the interest of witnesses in the outcome of the case is to strike at the notion of a fair trial for an accused person."

The Court of Criminal Appeal in Wilson and Allen construed this as a prohibition, except in the most exceptional case, against a judge directing a jury, in assessing the evidence of an accused, to refer to the interest which he has in the outcome of the proceedings. However, the passage in which that sentence appears relates back to two extracts from the summing up quoted earlier by their Honours and which are also set out in the joint judgment in Roach. What those extracts encouraged, and consequently what the High Court condemned, was a comparative evaluation (or devaluation) of the testimony of witnesses according to the extent of the particular interest of each witness in the result of the trial with the consequence that, because the accused had the greatest interest, the jury were invited to single out his evidence for particular and close scrutiny on the ground that it was inherently suspect.

This Court in Roach held that the High Court's condemnation of a summing up in which the interest of an accused person is referred to did not go beyond the case where it had the effect that the evidence of the accused had to be scrutinised more carefully than the evidence of any other witness for no reason other than that he was the accused. It did not prevent the trial judge from referring to the interest of the accused in the way in which he did in Roach.

The appellant sought to argue that Roach was wrongly decided and, in the alternative, that on the test adopted in Roach his Honour's direction in this case went beyond what was permitted by that test and that consequently there was a miscarriage of justice.

We adhere to the view expressed in Roach. What the accused is entitled to, and what the courts strive to ensure that an accused receives, is a fair trial. It is however impossible to disguise the status of the accused person or to pretend that an accused person who gives evidence to the jury is not the accused. The system has evolved in a way that attempts to give maximum protection to an accused against what is thought by many to be the natural prejudice that may exist against someone from the very fact that he is the person in the dock. Special directions are given in relation to onus of proof; standard of proof; presumption of innocence; the fact that no adverse inference is to be drawn if an accused fails to give evidence; the fact that an accused bears no onus if he does give evidence and that he has no obligation to satisfy anyone of anything; that the onus never shifts; and other approaches in similar vein. Notwithstanding all these safeguards the interest of an accused person in avoiding conviction is so obvious that it cannot be disguised by model directions on the subject of interest (which no Court of Appeal has yet chosen to frame). Nor should it be, at least invariably, ignored by silence.

It may readily be accepted that directions of the kind disapproved in Robinson have the effect of placing the accused in a real position of disadvantage through the making of invidious comparisons with other witnesses. No doubt there may be other ways in which directions in this troublesome area may result in unfairness to an accused person. It is possible (as counsel for the appellant submits) that the eventual solution is a rule that there be no reference whatever to the interest of an accused person who gives evidence. Such a solution would in our view be an admission of impotence, and a concession that the question is too difficult and subtle to be assisted by anything that a trial Judge might say. We do not think that the problem would best be addressed by a rule requiring universal silence. In a case like the present, to which we refer below, fair consideration of what the accused has to say may more likely be achieved by addressing the problem and redressing any prejudice which might otherwise flow by an appeal to the jury's sense of fair play. In the end that is more effective than ignoring the problem; and certainly more effective than a complex direction that an accused's evidence is not to be discounted any more by reason of interest than that of any other witness even though the accused's interest might be greater than theirs. Such a direction smacks of sophistry.

In order to consider the appellant's alternative argument, we set out the terms in which his Honour directed the jury on this question.

"You look to the probability of what witnesses have to say. Ultimately, the Crown must prove these matters beyond reasonable doubt, but probability, of course, is also a factor that you can take into account.

You look to the interest of the person who is giving evidence. A number of people in this case have an interest in the outcome of the matter. The police have an interest in the outcome of the matter, of course, a professional interest in the matter. They have charged the accused person with this offence and naturally they have an interest in it. The father and sister of the deceased child and so forth, you might feel, have some interest in the matter.

The accused man has an interest in the matter, a very important interest. You don't overlook these things, but, for example, in respect to the accused man, it would be quite wrong for you to say, "Oh, he has a very important interest. I am not going to take any notice of what he has to say." Now, that would be depriving him completely of any opportunity of giving evidence in his own defence, if you were to adopt that attitude. It would be artificial of you to fail to take into account that he has an interest in the matter, of course, but it would be, I repeat and urge upon you very strongly, quite wrong to say, "I am not going to take notice of anything he says because he is charged with the offence." That would be quite wrong and you would be failing to do justice to him if you were to adopt that attitude.

You must seriously take into account his evidence and the prospect that what he says might well be true, and only take into account his interest in the matter to the extent that it is fair to do so, while still allowing, out of fairness to the man, the very important feature: that he might well be telling the truth and he might well be innocent.

You see, what I am trying to tell you about that is this: to use your commonsense about the matter and to be fair to him. It would be artificial, as I say, to disregard his interest, and that applies to every witness. You don't discard people's evidence because they have an interest in the matter; you just fairly appropriate a factor that is just and proper in the particular case to that particular component.

You look, as I said, to the reliability of witnesses as you saw them. You might think that some witnesses appeared to you to be more reliable persons than other witnesses, and you are entitled to take that into account, taking into account, as I say, your experience of the world, your judgment of people in general. This is where your position as a body of 12 jurors is so important."

That passage must be read, as it would have been understood by the jury, in the context of the case. It is therefore necessary to say something about the evidence in the case.

There was no doubt that the girl, Leanne, who was 12 years old at the time, had been murdered. The question in issue was whether the appellant was the murderer.

The girl had been killed by a series of blows to her head with a blunt instrument. However, she had a number of other curious wounds to her body. Some were markings or traceries, which appeared to have been done with a sharp point such as a pin, close to her vagina and her anus, suggesting some sexual motivation, though she had not been sexually violated. There were also burn marks to parts of her body. Some were consistent with a burn from a lighted cigarette; others consistent with burning by a naked flame. They were all consistent with the child having been tortured immediately prior to her death.

No doubt bearing this in mind his Honour warned the jury against the risk that their natural outrage at this girl's death and the way in which she had been killed might prejudice them against the appellant. He warned them also of the importance of approaching the matter without any such prejudice and told them that they should consider calmly and rationally whether it was this man, the appellant, who committed the murder. He also told them that, in considering the appellant's evidence, they should bear in mind that the trial was a stressful occasion for him.

The Crown case against the appellant was a strong circumstantial one, the main features of which were:

(a)On 23 September 1991 the day on which, on the Crown case, the deceased girl was murdered, the deceased and the appellant had been left alone in the home in which they both lived with the deceased's father and sister, the latter of whom was living in a de facto relationship with the appellant.

(b)Blood was found on a number of items in the boot of the appellant's car; the blood was shown to be of the same type as the deceased's, a type which was found in only 1½% of the Australian population.

(c)Also found in the boot was a strand of hair similar in length, colour and texture to that of the deceased girl and a maggot of the type and age found on the deceased's body. Furthermore, swabs taken from inside the boot lid and lip had human blood on them which could not be grouped.

(d)Blood consistent with the deceased girl's was found in a number of places in the house.

(e)Car tracks of the same type as those of the appellant's car were found on the track which led to the body; however tyres with tracks of this kind were not uncommon.

(f)A hammer which was kept beside the appellant's bedside table was missing; such an instrument was consistent with having caused the injuries to the deceased's head.

(g)The appellant told lies to the interviewing police.

(h)A fold-up chair usually kept in the boot of the appellant's car was found in the spare room in the house, the appellant claiming that he had put it there after cleaning the car on 23 September.

There were other circumstantial facts of less importance and others in respect of which there was some doubt as to their accuracy, which it is unnecessary to mention here.

It is in this context that it is necessary to view his Honour's direction on the question of interest. It was sub- mitted that having broached the subject of the interest of witnesses and having identified the accused as a person having such an interest his Honour's further statements made it worse for the accused. His Honour told the jury that it would be quite wrong to say "I am not going to take notice of anything he says because he is charged with the offence". His Honour further stated that the accused might well be telling the truth and that "you don't discard people's evidence because they have an interest in the matter..". It was submitted that such statements were objectionable as being in the "faint praise" category and that they enhanced the problem.

We do not think that those submissions are correct. It is of course difficult, and sometimes impossible, for an Appeal Court to tell when a trial Judge is redressing what he perceives to be an imbalance. If in the present case his Honour perceived some hostility, contempt or disbelief in the jury in the course of the accused's evidence, or during addresses, then the further comments of the learned trial Judge may readily be seen as an attempt to encourage the jury to be fair to the accused and to dissuade them from rejecting his evidence out of hand on the basis that he had an interest in the matter. The present case is an example of a particularly strong Crown case followed by the accused giving evidence in which he could not account for the particular facts adduced against him, in which he made a number of contradictory statements and in which he simply denied having done what was alleged. It is a good example of a case where there is a risk, whether the trial Judge broaches the subject of interest or not, of a jury summarily rejecting the accused's evidence on the basis of his interest.

In such a context the further comments of his Honour seem to be the means by which his Honour attempted to redress what he perceived to be an imbalance, or to eliminate the risk of a facile rejection of the accused's denial. On analysis his evidence comes down to little more. His Honour pointed out the risk of "failing to do justice to him" and the need to be fair to the accused man. We do not think that the additional comments may fairly be criticised as faint praise or as compounding any problem that arose from the broaching of the subject.

The appellant's further submission involved the following steps:

1.His Honour referred to the fact that the accused man had a very important interest in the matter;

2.He referred to this after mentioning other people who had "an interest" or "some interest" in the matter; by inference his Honour was saying that the accused's interest was very much more important than that of any of the others;

3.His Honour later said that they should appropriate a factor that was just and proper in the case to the particular component, that is interest.

4.He was therefore saying that you discount the evidence of a witness by a proportion equivalent to his or her interest in the outcome; and consequently that the jury should discount the accused's evidence by more than they would discount the evidence of any of the others, simply because he was the accused man.

If that is the proper inference to draw from his Honour's direction in this respect then we would agree that the appellant should succeed for it would, in consequence, require the jury to discount the evidence of the appellant more than that of any other witness for no reason other than that he was the accused. However, we do not think that that is the correct view of his Honour's direction. Rather it is to take phrases out of the context in which they appear. The context was, as we have indicated, one in which his Honour was warning the jury against a facile rejection of the accused's evidence. In that context his Honour's statement referred to in steps 1 and 2 above were no more than a recognition, in that context, of the obvious. The sentence relied on in step 3 reads, in whole, as follows:

"You don't discard people's evidence because they have an interest in the matter; you just fairly appropriate the factor that is just and proper in the particular case to that particular component."

We would construe this sentence as making the point, which his Honour had earlier made in that and the preceding two paragraphs that a witness' evidence should not be discarded because he or she has an interest in the matter. No more should be done than to pay some regard to that interest in assessing the credibility of that witness. In other words, his Honour's plain meaning was not that some balancing should take place but simply that a witness' evidence should not be discarded because of an obvious interest, even a very important interest which that witness has in the outcome of the proceedings.

In our view, therefore, the direction was an adequate one and the appeal fails on this ground.

Dr Ashby was, at the relevant time, a specialist pathologist in the Department of Health. In that capacity she carried out an autopsy upon the body of the deceased girl. After giving evidence of her examination, which was undoubtedly relevant and admissible, she was asked:

"Dr Ashby, are you able to say from the injuries what the state of the mind of the person involved might be?"

"There are certain features that suggest a sexual motivation but are the not the usual sexual drive. These markings or traceries are sometimes found upon the bodies of victims who have sustained a violence which may not be obviously sexual, but provide a sexual satisfaction to the perpetrator. In this instance there is an indication that there might be a more direct sexual interest in relation to the anal and buttock region. A certain amount of interest in this region is perfectly normal and acceptable, but in some instances it can become a predominant and overwhelming and an infliction of any trauma to these areas may be associated with decoration, if you will, of various markings on the skin with plant material, flowers or leaves rather than actual marks on skin may be used to decorate the body in relation to wounds that have been made upon it."

She went on to say that what she called traceries or scratch marks were the decorations in this case. This followed an opening in which counsel for the Crown had referred to the killing as being "a sadomasochistic lust for killing".

Neither when the Crown Prosecutor said this nor when Dr Ashby gave evidence did the Crown intend to prove that the appellant had any of the characteristics described in the Crown opening or by Dr Ashby. The evidence was then plainly irrelevant.

Curiously it may have acquired a marginal relevance at a later time because of evidence which the defence elicited about the murder of another 12 year old girl shortly after this murder. The subsequent murder occurred only one or two kilometres from the deceased's house and the person charged with that murder lived in the same caravan park as one of the deceased's friends who was a witness in this case. The argument presumably was that the person who committed that murder could have committed this one. Dr Ashby, who had performed the autopsy in the subsequent case also, was, however, able to say that the body of the other girl bore no marks of the kind referred to above, thus excluding the likelihood that the subsequent murderer had also murdered Leanne.

Nevertheless the evidence was plainly irrelevant when tendered and the only question was whether its wrongful admission caused the trial to miscarry. It could not have done so unless the attribution to the murderer of the characteristics to which Dr Ashby referred was likely to be prejudicial to the appellant. We do not think it was. Moreover the case was an overwhelming circumstantial case against the appellant and we think that on the evidence properly admissible the jury would without doubt have convicted.

MINUTE OF ORDER:Appeal against conviction dismissed

CATCHWORDS:CRIMINAL LAW - SUMMING-UP - appellant convicted of murder after direction concerning accused's interest in outcome of trial - whether any comment ought be made at all on interest of witnesses - whether evidence of sadistic state of mind of killer relevant - whether miscarriage of justice

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Reasons for Judgment of the Court delivered the 25th day of August 1992

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