R v Williams [2000] QCA 518

Director of Public Prosecutions (Queensland) for respondent

[1] DAVIES JA: I agree with the reasons for judgment of Douglas J and with the order he proposes.

[2] HELMAN J: I agree with the order proposed by Douglas J and with his reasons.

[3] DOUGLAS J: The appellant was convicted of the murder of his estranged wife. The heart of the Crown case was a tape recorded confession made to police. The learned trial judge instructed the jury that it could not convict the appellant unless it accepted the reliability of the appellant's admission to the killing. There was also a body of circumstantial evidence.

[4] There was a large body of undisputed evidence. This is largely collected in the respondent's outline of submissions but may be summarised from it as follows.

[5] The deceased died of multiple stab wounds to vital areas of her body. There had been hostility between the appellant and the deceased for some time, though the appellant had held out some hope of a reconciliation even though the deceased had commenced a new relationship.

[6] On Friday 13 February 1998 the appellant had telephoned the deceased five times between 7 p.m. and 10 p.m. They had argued and the appellant was angry. Later that evening he drove to the deceased's address and parked away from her house to take her by surprise. He entered the house without invitation and when he left the deceased was dead on their bedroom floor. Her blood was all over his clothes and he had removed her shorts. He had apparently staged a robbery, removing jewellery, credit cards, a domestic violence order, a Valentine's Day card from himself, and he had damaged the back door, locked the front doors and left through the garage. He then dumped her jewellery in a drain on the way to his car and disposed of the knife that had killed her along the highway going home.

[7] He put his bloodied clothes in a bag in a cupboard at his flat and he hid the deceased's shorts and her personal credit cards in his backyard.

[8] In his original statement to police the appellant falsely denied going to the deceased's home that Friday, but when the detectives who interviewed him on tape raised the inconsistencies in his account, and advising him that his car had been seen near the deceased's home, he readily made a confession. It occurred in circumstances when he was told that there would be a search of his premises and a scientific examination of the evidence. He then said "I think you know I did it". His version became that he left his place at about 11 p.m. and parked his car in a street near the deceased's home. He said he had walked around for about an hour before using his daughter's key to enter the house. He said he picked up the knife in the kitchen during a struggle with the deceased and stabbed her. He claimed he did not mean to kill her and then showed police where he put the knife, the jewellery, the bloody clothes and other property.

[9] Three weeks after his arrest the appellant wrote to his children in a letter which said inter alia:

"... I guess you don't understand. After all I don't expect you to but hopefully one day you will and hopefully you will be able to forgive me in time ... I never wanted or intended anything to happen to your mother but it did and God knows I would change it if I could ... I hope I haven't lost your love. I am sure sorry will never be enough but I don't know what else to say. Please forgive me."

[10] At the trial the appellant alleged that he had been pressured into making a false confession by threats made by police over a long period of time. He said that he had gone to confront the deceased and her boyfriend and had persuaded one Lili Johnstone to go with him. She was an 86 year old close friend. He said that they took separate cars and parked away from the house. He claimed that he then found the body and called out to Lili but stopped her from notifying the police and sent her home.

[11] Lili Johnstone gave a similar narrative although the pair gave different descriptions of where the cars were parked. Notice of alibi was not given until five months after his arrest, and neither the appellant nor Mrs Johnstone had mentioned it to police at an earlier stage. She had initially told police that she had learned of the death in a newspaper and she also said that she was in contact with the appellant almost every second day after his arrest.

[12] There was, as I said, other circumstantial evidence. Relevantly the appellant's daughter, Cindie, noticed that he left his flat for a short time on the evening in question and returned without his car claiming it had broken down. She said that the following morning he drove the car home. It was a very noisy car. (The Crown case was that the appellant had deliberately driven the car a distance from his flat so that his later departure for the deceased's house and his arrival back in the early hours of the morning would not have been noticed.)

[13] Importantly the appellant spoke to a solicitor in January 1998 and told her various things, including that he was having difficulties with the deceased. When this solicitor learned of the deceased's death she committed her memory of the conversations to writing. Inter alia, the appellant said to the solicitor the following:

"(a) The only out of it for him would be if she (the wife) were dead and that she deserved to die for the hell that she had put him and the kids through."

"b) Well you know I might as well kill myself. I might as well end it now, just to be done."

[14] The appellant delivered two outlines of submissions to this court. The latter arrived on 2 October 2000. He had previously abandoned the grounds of appeal which formed the original Notice of Appeal.

[15] The appellant's first ground is that he was denied a fair trial by reason of the failure of his legal representatives at the trial to follow his express instructions to seek the exclusion of the confessional statements from evidence. The express instructions he said he gave were that he wished to have a voir dire to test the reliability and voluntariness of the confessional statements made to the police. Accepting for the purpose of argument that he did give such instructions, one is driven to the conclusion that had a voir dire been conducted in the circumstances of this case it would only have advantaged the Crown in the sense that the Crown would have had advance warning of the challenge to be made to the confessional evidence before the trial actually commenced. The decision to not undertake a voir dire was clearly a tactical one and such a decision, when made by counsel, can only amount to a miscarriage of justice when it is "flagrantly incompetent" ... "unless the inference is the only one available and is compelled by the circumstances, it should not be drawn": R v Paddon [1998] QCA 248; [1999] 2 Qd R 387. The appellant was represented by very senior and experienced counsel. The decision made was an appropriate one.

[16] I am not persuaded that there is anything in this ground of appeal.

[17] Next the appellant complains that the learned trial judge erred in failing to make a ruling on the admissibility of the appellant's confessional statements. This appears to be a reference to the decision of the High Court in MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512 where the court in considering an appeal from the Court of Criminal Appeal of the Supreme Court of New South Wales ruled upon a circumstance where a trial judge did not inform the accused of his right to ask for the voluntary nature of any confession he may have made to be determined on a voir dire in the absence of the jury, and in circumstances where a voir dire was not conducted.

[18] It is correct that in this case the learned trial judge did not so inform the accused. In my respectful view the nature of the attack upon the alleged confession was not such that compelled the learned trial judge to do so. In MacPherson's case the accused had conducted his own defence. In the present case the appellant was well represented. In any event his Honour in his summing up said this:

"Even if you thought it was possible that the accused was told in effect that he could be assaulted if he did not confess and that was one of the factors which made him confess, the question is still whether you think that the confession may be unreliable and I have said to you that because of the way in which the case has developed here, it really is a situation that if you think there was pressure put on him in the way he said and he confessed because of that, it would be necessary for you to disregard the confession, on the basis that it would be unreliable."

[20] Next the appellant complained about the circumstances in which a letter written by him to his children (referred to above) was tendered. He complains that if evidence such as this was to be relied upon then the Crown ought to have tendered it in the Crown case. The fact is that the appellant always knew that the Crown had possession of that letter and that proof that it was written by him only occurred when he admitted that in cross examination. At that point the letter became admissible. He had the opportunity to proffer an explanation for the evidence. He did not.

[22] The next set of grounds concerns the evidence of Lili Johnstone. It is claimed that she was disadvantaged in her answering questions put to her due to the fact that her hearing aid was not working and there was no prior meeting with the defence. The appellant claims that he was disadvantaged by the failure of the prosecution to fully play a taped interview with Mrs Johnstone during the trial.

[23] The difficulty facing the appellant with respect to Mrs Johnstone's evidence is that it was outrageous and coloured by the fact that she had said that she first learned of the death of the deceased through the newspaper. Further, though complaining of her voice being husky at the trial the transcript reveals that by her answers she fully understood the questions which were asked of her. As to the tape, the only part of that which was played was that which was used to prove the previous inconsistent statement with respect to the time when she learned of the death. The appellant was not there at the time of that conversation and the fact that he did not personally review the tape could not have been to his disadvantage.

[24] There is nothing in these grounds of appeal.

[25] The balance of the grounds of appeal go towards an attempt to show that the verdict of the jury was perverse. Various facts are pointed to, including the fact that the jury would have had to completely discount the evidence of the alibi witness. For the reasons expressed above one can see why the jury did in fact discount her evidence. For the sake of completeness I shall set out those grounds of appeal. They are:

(g) the fact that Kenneth Peter Stevenson, boyfriend of the deceased, was aware of a bunch of flowers and a valentines day card that was received by the deceased well after the last contact by him was made;

(i) discrepancy in times Kenneth Peter Stevenson the last spoke to the deceased;

(j) incorrect and misleading information given to the jury by the Defence Barrister;

(k) the appellant was denied a fair trial by reason of the failure of his legal representatives to take express instructions and act on those instructions set out in his affidavit;

(l) prosecution misleading jury as to probative evidence;

(m) that the learned trial Judge erred in giving weight to evidence in his summing up;

(n) Crown witness Detective Paul Skillen misled the jury about alleged murder weapon;

(p) his Honour erred in law in that he ruled the evidence of Leanne Turner to be admissible;

[26] The evidence against the appellant was overwhelming. Even without the confession made to the police officers, there was a very strong case that it was he who killed the deceased. The grounds of appeal go to minor matters, all of which were dealt with either by the judge in his summing up or, where they are not, they are of marginal interest in the end. The general thrust of the appellant's appeal seems to have been based upon his claim of being denied a fair trial by reason of the failure of his legal representatives to take express instructions and act on those instructions to conduct a voir dire, and upon the alibi evidence. As I have said above I believe there is nothing in these grounds of appeal.