Adugna v The State of Western Australia
[2005] WASCA 206
•1 NOVEMBER 2005
ADUGNA -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 206
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 206 | |
| THE COURT OF APPEAL (WA) | 01/11/2005 | ||
| Case No: | CCA:103/2004 | 10 OCTOBER 2005 | |
| Coram: | STEYTLER P WHEELER JA MCLURE JA | 10/10/05 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | MEHARI ADUGNA THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Appeal against conviction Whether trial Judge "diminished" the defence case Whether trial Judge wrongly invited the jury to speculate Whether trial Judge conveyed an impression of bias Turns on own facts |
Legislation: | Nil |
Case References: | Amado-Taylor v The Queen [2000] 2 Cr App Rep 189 (CA) Broadhurst v The Queen [1964] AC 441 (PC) Etherton v The State of Western Australia (2005) 30 WAR 65 R v Ali Ali (1982) 6 A Crim R 161 RPS v The Queen [2000] 199 CLR 620 Vakauta v Kelly (1989) 167 CLR 568 Webb v The Queen (1994) 181 CLR 41 Bardsley v The Queen (2004) 29 WAR 338 Brown v Police (1999) 74 SASR 402 Dietrich v The Queen (1992) 177 CLR 292 Jago v District Court of New South Wales (1989) 168 CLR 23 R v Jellard [1970] VR 802 R v Glennon (1992) 173 CLR 592 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : ADUGNA -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 206 CORAM : STEYTLER P
- WHEELER JA
MCLURE JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MILLER J
File No : IND 70 of 2003
(Page 2)
Catchwords:
Criminal law and procedure - Appeal against conviction - Whether trial Judge "diminished" the defence case - Whether trial Judge wrongly invited the jury to speculate - Whether trial Judge conveyed an impression of bias - Turns on own facts
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr D N Ryan
Respondent : Mr B Fiannaca
Solicitors:
Appellant : Holborn Lenhoff Massey
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Amado-Taylor v The Queen [2000] 2 Cr App Rep 189
Broadhurst v The Queen [1964] AC 441 (PC)
Etherton v The State of Western Australia (2005) 30 WAR 65
R v Ali Ali (1982) 6 A Crim R 161
RPS v The Queen [2000] 199 CLR 620
Vakauta v Kelly (1989) 167 CLR 568
Webb v The Queen (1994) 181 CLR 41
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Case(s) also cited:
Bardsley v The Queen (2004) 29 WAR 338
Brown v Police (1999) 74 SASR 402
Dietrich v The Queen (1992) 177 CLR 292
Jago v District Court of New South Wales (1989) 168 CLR 23
R v Jellard [1970] VR 802
R v Glennon (1992) 173 CLR 592
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1 STEYTLER P: After a trial by jury, the appellant was convicted of murdering his estranged wife. He appealed against that conviction, complaining of deficiencies in the trial Judge's charge to the jury. At the close of argument on the hearing of the appeal we dismissed the appeal and said that we would give our reasons in due course. These are my reasons for dismissing the appeal.
The evidence at the trial
2 The evidence at the trial established that the appellant and his wife were Ethiopian. They came to live in Australia in about June 2001. Their relationship broke down and they separated in about March 2002. The appellant's wife moved out of the unit in which she had been living with him and moved into another unit in the same block of units. On 15 May 2002 she obtained an interim violence restraining order against the appellant. The order was made final on 24 July 2002. Although the appellant and his wife worked as cleaners at the nearby Canning College, they were not in contact there, as each worked in a different area. On the morning of 3 October 2002 both were scheduled to work at the college. Neither turned up. The appellant's wife was murdered on her way to work and the appellant was arrested some time later.
3 The principal witness for the prosecution was a man by the name of Swin Shwe. He also worked at Canning College. He knew the appellant's wife and said that he had met the appellant at work. He left home to drive to work at about 5.20 am on the day of the murder. On the way to work he saw the appellant's wife walking along the road, also on her way to work. He offered her a lift. She got into his car and sat in the front passenger seat. His evidence was that, after driving a little further, he saw the appellant walking towards the college. He stopped to pick him up also. The appellant got into the car and Shwe drove on towards the college. As the car approached a roundabout, the appellant told Shwe, twice, to stop the car. Then, the appellant put his arms around his wife's neck. Just after passing the roundabout, Shwe stopped the car. He got out of it. So, too, did the appellant and his wife. They began to struggle with each other on the side of the road. Shwe got back into the car and drove to work.
4 At about 6 am on that day, Grant Lahogue, a bricklayer, was on his way to work. He drove past the area in which Shwe had seen the appellant and his wife struggling. He saw a woman lying on the side of the road. He did not stop. However, he and a co-worker, Stuart McLean, returned some 15 minutes later. The woman (the appellant's wife) was
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- still lying in the same position. He used his mobile telephone to call for an ambulance. The time was then about 6.20 am. The ambulance arrived about five minutes later. Lahogue's evidence was largely supported by that of McLean. However, McLean added that, after he saw the woman lying on the side of the road, "… [he] just sort of put … [his] hand on the woman, the sort of pulse thing, but … [he] never really felt anything." However, when asked whether he had seen her "moving her mouth at all as if she was having trouble breathing", he responded by saying, "Yeah, just a little bit, yeah."
5 Another bricklayer, Stephen Channing, drove past the place where the appellant's wife was lying at about 6.15 that morning. He saw Lahogue's car at the side of the road and thought that it had broken down. He turned his vehicle around and came to see if he could help. It was then that he saw a woman (the appellant's wife) on the ground. He said that she was trembling or shivering and that her breathing was very shallow. It was then about 6.20 am. The ambulance arrived shortly afterwards.
6 A statement was read into evidence from a paramedic, Wendy Blackman, who attended the scene with the ambulance. In it, she said that the ambulance was called to the scene at 6.23 am and that she arrived there at about 6.51 am. The appellant's wife was, by then, deceased. Blackman observed a number of stab wounds. She said that there was "a minimal amount" of blood from the injuries and that such blood as there was appeared to be only on the deceased person's clothing and not on the ground.
7 The evidence of Dr Clive Cooke, the chief forensic officer at the Perth PathCentre, established that the deceased had suffered 11 penetrating injuries and seven "incised type injuries". Wounds were found on the deceased's hands which were consistent with her having attempted to defend herself. She also had a "slicing type" injury to the right side of her mouth which continued into the right cheek. Three of the stabbing wounds had entered the abdominal cavity and caused internal bleeding, one of them having severed the superior mesenteric artery. Death was inevitable as a consequence of internal bleeding from these wounds. The injuries were typical knife injuries. However, neither of two knives found near the location was entirely consistent with the wounds found.
8 When asked how long it would have taken the deceased woman to die, Dr Cooke said that he "would have thought at least several minutes"
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- but that there was "the potential" for longer survival, "maybe … 20 minutes or so".
9 The caretaker of Canning College, Mr Victor Keeley, also gave evidence at the trial. He said that the appellant was ordinarily punctual in arriving at work. It was put to him, in the course of cross-examination, that the appellant had had "some days off work". He responded by saying, "Yeah, I remember he had a couple off too, but he was always there every day …". In the course of re-examination he was reminded of this evidence and asked whether he remembered any day upon which the appellant had not turned up when he was expected. He responded by saying, "Yeah, the only day I can recall it was the day the incident happened. That's the only day."
10 Evidence was also given by three people who had known the appellant.
11 The first of these was Azeb Berhe. She owned a shop in Trinity Arcade in Perth. She said that the appellant came to her shop at about 2.30 pm on the day of the murder. She noticed that his shirt was crumpled. She said that he did not look happy and that he looked as if he was "panicking" for some reason.
12 The second, Almaz Belay, had known both the appellant and his wife. She and the appellant had an arrangement whereby the appellant picked her son up from day care from time to time. No such arrangement was made in respect of the day of the murder. However, on that day, she received a telephone call from the appellant at 6.50 am. He told her that he could not pick up her son. She said that he sounded "different, unhappy". He told her that he had had a fight with his ex-wife. She asked him why that had happened. The appellant became very quiet. Then, she asked him what he had done and whether he had hurt his wife. He did not respond. She then asked, "Did you kill her?" Again, he made no response. She repeated her questions but the appellant remained silent. After a while the appellant hung up his telephone. Belay subsequently made inquiries at a number of hospitals in an attempt to find out whether or not the appellant's wife had been admitted there.
13 The third person was Fitsum Kidane. On 3 October 2001 he was having a meal at the home of a priest. He had, by then, heard that the police were looking for the appellant. The telephone rang while he was at the priest's house. This was at about 6.30 pm. One of the priest's daughters answered the phone. She said that the appellant was on the
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- telephone. Kidane took the telephone and spoke to the appellant. He told the appellant to wait where he was so that Kidane could take him to the police. Kidane then drove to the place where the appellant was and took him to the Cannington police station.
14 The only other evidence which is material for present purposes is that of Detective Senior Constable Cameron Western. He had walked from the scene of the crime to the appellant's home at a normal walking pace. He said that the journey took 13 minutes and 39 seconds.
15 The appellant did not give evidence at the trial.
Grounds of appeal
16 There are three grounds of appeal. The first is that the trial Judge "diminished" the defence case in identified respects. The second is that the trial Judge wrongly invited the jury to speculate as to who, other than the appellant, might have attacked the deceased woman and why. The third is that the trial Judge failed, in the course of his summing up to the jury, to maintain the appearance of impartial justice, by making comments which were said to have conveyed an impression of bias against the appellant and his defence as regards the "amount" of circumstantial evidence against the appellant and the timing of the incident and the time of death.
17 I will deal with each of these grounds in turn. However, before doing so, I should make some general comments about the law in this respect.
18 The fundamental requirements of a trial judge's summing up to the jury are "correct directions in point of law, an accurate review of the main facts and alleged facts, and a general impression of fairness": Amado-Taylor v The Queen [2000] 2 Cr App Rep 189 (CA), per Henry LJ, Hidden and Alliott JJ, citing Rose LJ in an unreported judgment. The trial must not only be impartially conducted, it must also be seen to be so: RPS v The Queen (2000) 199 CLR 620 at 652, per Callinan J. Lord Devlin has written (The Judge (1979) p 4) that:
"… [I]impartiality and the appearance of it are the supreme judicial virtues. It is the verdict that matters, and if it is incorrupt, it is acceptable. To be incorrupt it must bear the stamp of a fair trial. The judge who does not appear impartial is as useless to the process as an umpire who allows the trial by battle to be fouled or an augurer who tampers with the entrails".
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- (See also RPS at 653; Webb v The Queen (1994) 181 CLR 41 at 57).
19 A manifestation of apparent bias towards counsel may only constitute relevant, apprehended bias in respect of a party if it is such as to give rise to an appearance of bias against the party himself or herself. Disparaging comments about counsel's conduct may or may not produce that appearance: RPS, at 652.
20 Knowledge of his or her own integrity can cause a judge to fail to appreciate that comments made during a trial might wrongly convey to a party, or to a lay observer, an impression of bias: Vakauta v Kelly (1989) 167 CLR 568 at 571 - 572. Also, if a judge goes too far in revealing his or her views, there is a danger that a jury will be overawed by them; the summing up must reveal a fair balance: Broadhurst v The Queen [1964] AC 441 (PC) at 464, per Lord Devlin, delivering the reasons of the Court. However, it is important to assess a summing up as a whole, taking into account any relevant context, including any arising from what was said by counsel in their closing addresses: R v Ali Ali (1982) 6 A Crim R 161 at 168, per Nagle CJ at CL.
Ground 1: Diminishing the Defence Case
The absence of a knife
21 The first of the respects in which the trial Judge is said to have diminished the defence case relates to evidence, relied upon by the counsel for the appellant, that the appellant had not previously been seen to possess a knife. In his evidence Shwe had said that he had never seen the appellant with a knife at any time. Another witness, Kiflu Nigussie, who had also worked as a cleaner at Canning College, knew the appellant and his wife. He, too, said that he had never seen the appellant with a knife during the period in which he worked at Canning College. In the course of his closing submissions, counsel for the appellant told the jury that the evidence was that the appellant had not carried a knife.
22 In the course of his summing up to the jury, the trial Judge referred to this submission. He went on to say, "It wasn't actually he didn't carry one. It's just that no-one ever saw one." A little later, he said:
"[Counsel for the appellant] … says there's no evidence of a knife. It was not found. No knife was found at … [the appellant's] place, but you can't conjecture about that. It's true, there isn't any evidence. No knife was found that seems to be consistent with what happened. So there must have been a
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- knife but no-one knows where it is. You can't conjecture what might have happened to it. It wasn't at the accused's place. He's quite correct about that."
23 Counsel for the appellant submits that, by these comments, the trial Judge undermined the defence case. He contends that the trial Judge should have told the jury that no evidence was adduced by the State to the effect that the appellant ever carried a knife. He also contends that, by saying that defence counsel was correct in saying that the knife had not been at the appellant's place, the trial Judge implied that counsel had been incorrect in other submissions made by him.
24 In my opinion there is no substance to these contentions. The trial Judge was obliged to correct the inaccurate statement which had been made by defence counsel in the course of his closing submission. In the course of doing so, he made the point that no-one had seen a knife in the possession of the appellant. Nothing further was required from him in that regard. I am unable to see anything in the passage which I have quoted from his Honour's summing up, or in any other passage, which could have been regarded as diminishing the defence case in this respect. There is nothing in the fact that the trial Judge twice emphasised the correctness of submissions which had been made on behalf of the accused concerning the failure to find a knife, or in the circumstance that he made no similar emphasis as regards other, more general, submissions, which could sensibly be taken to have diminished the force of what was said.
Lack of forensic evidence
25 The second respect in which the trial Judge is said to have diminished the defence case is as regards the lack of forensic evidence. The evidence had revealed that a number of items had been taken from the appellant's unit and analysed. Evidence had also been collected from the crime scene, including scrapings from under the deceased woman's fingerprints, soil samples, a "scrunchie" which had been found there and the imprint from a footprint found near the body of the deceased woman. However, there was no DNA or other forensic evidence which connected the appellant with the blood of the deceased woman or with the site at which she was murdered. His DNA was not found in the fingernail scrapings. Neither the scrunchie nor the footprint could be connected with him. A statement from Sergeant Victor Webb of the Crime Scene Unit, who had examined Mr Shwe's vehicle, was read in evidence and recorded that no fingerprints had been lifted from the vehicle.
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26 When referring to the defence case in this respect, the trial Judge said, in the course of his summing up:
"Then … [counsel for the accused] referred to the exhibit list and said 27 items were taken from the accused's unit. They were all examined. No DNA or forensic value was found in any of them to link the accused to the death of the deceased, and that's correct. There's no forensic evidence to link the accused or anyone else for that matter to the death of this lady.
He referred to a footprint near the scrunchie and said there's no evidence it was the accused. All it indicates is that there was a person there at some point of time. Well, that's true. Somebody could have walked through there at any time and left a footmark in that area but it's just that the evidence is neutral. There's no evidence to say that the footprint which was found matched any shoe of the accused."
27 Once again, counsel for the appellant contended that the reference to the correctness of individual submissions made on behalf of the accused diminished the value of the other submissions which had been made. He pointed, in this respect, to the fact that at no point in the course of his summing up did the trial Judge make similar comments with regard to the correctness of submissions made by the prosecutor.
28 However, in the course of his closing address, the then counsel for the appellant had told the jury, on a number of occasions, what instructions had been given to him by the appellant, who, as I have said, had not given evidence. So, for example, he had told the jury that the appellant had not been present at the scene of the crime and also that the reason the appellant had attended Berhe's shop on the day of the murder was in order to try to obtain work. There had been no evidence to support either of those contentions or, indeed, some others which had been advanced by the then counsel for the appellant in the course of his address to the jury. Consequently, the trial Judge was obliged to correct what had been said. It was in this context that he chose, in some instances, to emphasise the correctness of what had been said by counsel for the appellant in other respects. I am not at all persuaded that this would have been understood by the jury as diminishing the defence case or that it otherwise gave rise to any unfairness.
29 It is important to mention, in this respect, that the trial Judge was at some pains to ensure that the jury did not read too much into his
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- corrections of what had been said by counsel for the appellant. He said, in that regard:
"… I don't want you to think I've been critical of his address to you in any way. I've just tried to straighten up any areas where you might have thought he was saying the accused says this or says that. The accused says nothing. He hasn't given evidence, so … [counsel for the accused] can't say, 'He instructs me to say this or that.' He can only make submissions as to what conclusions you can draw from the evidence. I don't want you to think I've been critical of him, but I just needed to straighten that point out with you."
31 This submission overlooks other references to the lack of forensic evidence which were made by the trial Judge in the course of his summing up to the jury. I have earlier referred to the trial Judge's comment that, notwithstanding that a number of items were taken from the accused's unit and examined, no DNA or other forensic evidence linked him with the death of the deceased. I have also mentioned his comments with respect to the footprint. Finally, the trial Judge mentioned a defence submission to the effect that the attack had been ferocious and that some DNA from the deceased woman might have been expected to have been found on the appellant if he had been involved. In my opinion, these references fairly and adequately summarised the critical aspects of the defence submission and nothing more was required. Moreover, it seems to me that his Honour was right to say that the "bottom line", as regards the absence of forensic evidence, was that nobody was linked to the crime.
32 Finally, in this respect, counsel for the appellant points to the fact that, after acknowledging the force of the defence submission that the stabbing had been ferocious, the trial Judge went on to say to the jury that the extent to which there was blood was "another question". He contends that the trial Judge should have gone on to explain to the jury what he meant by that. However, it seems to me that, if he had done so, this would have assisted the prosecution case rather than the defence case. I have already mentioned the uncontested evidence of Blackman to the
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- effect that there was "a minimal amount" of blood from the deceased woman's injury and that such blood as there was appeared only to be on her clothing and not on the ground. I have also referred to Dr Cooke's evidence to the effect that the bleeding which caused the death of the deceased woman was internal bleeding.
The absence of protest
33 The next respect in which the trial Judge is said to have diminished the defence case relates to the evidence of Shwe that, when he picked up the appellant, the deceased woman made no protest. This point was emphasised by the then counsel for the accused in the course of his address to the jury, seemingly in support of the proposition that it could not have been the appellant who was picked up by Shwe. The trial Judge is said to have diminished this submission by pointing out to the jury that, when considering it, they would have to consider the fact that the appellant and his wife both worked at the Canning College and that the two had not been alone in the vehicle.
34 In my opinion the trial Judge's comments were appropriate and went no further than the circumstances required. A trial Judge is entitled to comment on the evidence, to the extent required, in order to enable the jury to know what are the issues which it is necessary for them to resolve and how the evidence in relation to those issues might be approached: Etherton v The State of Western Australia (2005) 30 WAR 65 at [80], per Roberts-Smith JA. The matters raised by his Honour were matters which needed to be considered by the jury and it was entirely reasonable for his Honour to have raised them, in my respectful opinion.
35 I should say, in any event, that the evidence overwhelmingly established that it was the appellant who was picked up by Shwe. Shwe said, in the course of his evidence, that he knew the appellant and that he had met him at work. He said that he had previously picked up the appellant and his wife (he said that he had given the appellant a lift on four prior occasions) and that the appellant had told him at that time that the two were married. He said that he and the appellant had greeted each other when he picked him up. While he could not remember exactly what the appellant had been wearing at the time, this was hardly surprising in the circumstances. When it was put to him, in the course of cross-examination, that "somebody" had got into his car on that day, he responded by saying, "It's not somebody, it's … [the appellant]". He insisted that the reason why he had picked up the appellant was because he knew him. While Shwe had had some hesitation in identifying the
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- appellant from a photoboard, he explained that this was because "sometimes … after a long while some people might have their hair differently".
Absences from work
36 The last of the respects in which the trial Judge is said to have diminished the defence case relates to evidence of the appellant's absences from work.
37 Counsel for the accused had made the point to the jury that the day of the murder was not the only day upon which the appellant had not attended at work. He referred, in this respect, to the evidence of the college caretaker, Keeley. I have earlier mentioned that Keeley had initially said that the appellant "had a couple [of days] off" but that he "was always there every day and he was always punctual". Counsel for the appellant complains that the trial Judge made very limited reference to defence counsel's proposition concerning the appellant's prior non-attendance at work. His Honour said, in that respect, that Keeley's evidence had not been "specific". Counsel for the appellant also complains that his Honour had earlier distorted Keeley's evidence, after reading it to the jury, by saying that the effect of it was that there had been no day, apart from the day of the murder, upon which the appellant "didn't front up at work".
38 In my opinion there is no substance to these complaints. The trial Judge was right to say that Keeley's evidence had not been specific. Moreover, after referring to defence counsel's submission in respect of the appellant's prior absences from work, the trial Judge read to the jury the evidence which had been given by Keeley in the course of re-examination. As will be apparent from what I have said above, the effect of that evidence was that there had been no occasion, other than the day of the murder, upon which the appellant had not turned up at work when he was expected. It was immediately after this that his Honour referred to the fact that, on the evidence of Keeley, there was no other day than the day of the murder upon which the appellant had not "fronted up" at work and it must have been obvious to the jury that, by this, his Honour meant no more than that this was the only day upon which he had failed to turn up when expected.
General undermining
39 Finally, counsel for the appellant contended that, when the whole of the trial Judge's address to the jury is considered, including each of the
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- matters already referred to, its effect was generally that of diminishing or undermining the defence case. I am not at all persuaded that this is so. I have already said that the trial Judge was required, at certain points in the course of his summing up, to correct misapprehensions which had been created by the then counsel for the accused. Otherwise, it seems to me that the propositions which had been made by counsel for the accused were fairly explained by the trial Judge to the jury, emphasising, from time to time, the correctness of points which had been made. It is important, also, to bear in mind in this respect that the trial Judge had earlier emphasised to the jury that it was for them "to judge the facts and to find alone what the facts are". He went on to say:
"I won't be giving any views on the matter. I won't be making any submissions to you. I will be telling you what the law is. I will be referring to the facts from time to time. If I refer to the facts, for example … [read] some evidence to you, it's to bring to your attention things which I think may be important. I don't have a view on the case and I can't say this any more strongly, that it's not for me to express any view as to whether the accused is guilty or not guilty of wilful murder or anything else. I am entirely neutral. It is your task to reach that decision.
So if I give any impression at any stage in the trial or if I do now or in the next hour or so that I favoured one side or the other, I don't. I most certainly don't and I don't want to give you that impression. So if, for example, I draw to your attention anything that either … [the prosecutor] or .. [defence counsel] have said which may need to be looked at in a particular light or I might have a comment about it, that's only a comment designed to assist you, not a criticism and certainly not a point of view because, as I have said many times, it's your exclusive responsibility to decide the facts of the case and to reach the verdict."
Ground 2: Speculation
41 In the course of summarising the prosecution case to the jury, the trial Judge referred to Dr Cooke's evidence that there had been "quite a nasty deep cut across the centre of the upper lip which continued towards the side of the mouth … going into the right cheek". The trial Judge mentioned that the prosecutor had placed some significance on the disfiguring nature of this wound and that he had suggested that the person
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- who inflicted it did so for a particular purpose. His Honour went on to say, "Who then would do such a thing and why? So the crown say it's consistent with the husband disfiguring her, no-one else. It's for you to consider." A little later in the course of his summing up, while dealing with items of circumstantial evidence which had been relied upon by the prosecutor, his Honour returned to the facial wound and said, "That mouth wound - who would do that; if it was a stranger. Life is not like that says Mr Dempster [the prosecutor]." Counsel for the appellant contends that, by asking these questions, the trial Judge impermissibly invited the jury to speculate as to why anyone else, apart from the appellant, would want to injure the face of the deceased woman in that way.
42 It is obvious, from each of the passages referred to, that the trial Judge was not himself putting any question to the jury. In each instance, he was merely summarising the submission which had been advanced on behalf of the prosecution. The effect of that submission had been that the wound was consistent with one which might have been inflicted by a person with a personal grudge or anger directed towards the deceased woman rather than by a complete stranger. In my respectful opinion, his Honour did no more than fairly summarise that proposition. This ground, too, fails.
Ground 3: Bias
43 That leaves the contention, advanced by ground 3, that the trial Judge made comments in the course of his summing up to the jury which conveyed an impression of bias against the appellant with respect to the amount of circumstantial evidence against him and as regards his counsel's contentions in respect of the time of death.
44 So far as the circumstantial evidence is concerned, the appearance of bias is said to arise principally from the fact that the trial Judge informed the jury that he had found some 18 items of circumstantial evidence, whereas the prosecutor had found only six. By saying that, he is said to have given the jury the impression that there was far more circumstantial evidence against the appellant than the prosecutor had relied upon and, consequently, to have promoted the State's case in a manner which was impermissible.
45 It is important to consider what was said by the trial Judge in the context of the whole of his summing up (see Ali Ali, above, at 167). He directed the jury, in a manner which is accepted to have been uncontroversial, as regards the nature of circumstantial evidence and the manner in which it should be dealt with by the jury. Then, he went on to
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- identify the circumstantial evidence which had been adduced in the case. Having done so, he summarised the prosecution's submissions in that regard. It was in that context that he mentioned that the prosecutor had confined the circumstantial evidence to "six pieces" but that he had himself identified "about 18 pieces".
46 In my opinion, his Honour was entitled to approach his task in this way. There is nothing untoward in explaining the nature of circumstantial evidence and the manner in which it should be approached and then identifying what evidence falls within that description. Nor, in my opinion, was there anything untoward in mentioning that he had identified about "18 pieces", when the Crown had identified only six. The trial Judge explained to the jury, in this context, that he had "spread them out more". It was consequently plain from what he said that he was not suggesting that the circumstantial case against the accused was stronger than that advanced by the prosecutor. All that he was saying was that he had broken down some of the items referred to by the prosecutor into smaller "pieces". In these circumstances, and given what his Honour had said to the jury, at the very outset, concerning his own role and that of the jury, I am unable to accept that what was said by him was indicative of any bias.
47 As to the timing of the stabbing and the time of death, I have mentioned that Dr Cooke said that death would have eventuated within "20 minutes or so". The evidence at the trial revealed that the appellant had made a telephone call from his home at 5.56 am on the morning of the murder. Counsel for the accused consequently made the point to the jury that, because it took some 14 minutes to get from the crime scene to the appellant's home, and because, on the evidence of McLean and Channing the deceased woman was still alive at about 6.20 am, it could not have been the appellant who killed the deceased woman.
48 The trial Judge first dealt with the prosecutor's submissions to the jury in that regard. After mentioning that the prosecutor had told the jury that he wanted to cover what counsel for the defence would be putting to them in this respect, he went on to say:
"This, Dr Cooke said, was a difficult issue and the question of how long she might have survived is not an exact science because you will appreciate, of course, that when those workmen saw her at around 6.20, they saw some sign of movement and so, Mr Dempster says, well, Dr Cooke's estimate can't be correct because the person who killed her didn't kill her
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- only 20 minutes before 6.20. The evidence of Dr Cooke about that, I will just tell you what it was, was this: I asked him the question:
'You said that death was probably pretty well inevitable. Untreated by surgery, how long would it have taken the deceased person to die from the combination of those three that went into the central abdominal cavity?---Yes, sir. As you know, that's always a difficult question to answer. Best location in particular, because you can - with this bleeding into the back of the abdomen, as it accumulates it doesn't tend to spread out much, because of its location in this retroperitoneal space. It is covered by peritoneum at the back of the abdomen. That expands in a balloon-like way. As the pressure builds up then it stops the bleeding and so in some people that can slow things down so that maybe death is delayed 20 minutes or so, whereas in others, depending on exactly what's happening with them, death may be more rapid. So I would have thought at least several minutes, but leave the potential open for maybe some longer survival, 20 minutes or so.'
So he didn't pinpoint it at 20. He put it at 20 minutes or so. That's probably all I need to refer to about it. I will come back to what … [defence counsel] says about it shortly."
49 A little later in the course of his address, the trial Judge came to the defence submission in this respect. After summarising that submission, he went on to say, "… of course it all depends on what you make of Dr Cooke's evidence as to the extent to which the 20 minutes you can rely on; the 20 minutes or so was his estimate".
50 Counsel for the appellant contends that, by saying this, the trial Judge "distorted" Dr Cooke's evidence, given that he had limited the range as being from "several" minutes to 20 minutes, the larger number taking account of the "potential … for longer survival". In my opinion, there was no such distortion. As will be apparent, the trial Judge read to the jury precisely what had been said by Dr Cooke. There is no suggestion that he misread the transcript in any way. Moreover, after making the comment which is complained of, the trial Judge went on to say, in his very next sentence, "How precise is it is a question for you." He consequently made it plain that this was a question for the jury and not for himself.
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51 The evidence which had been advanced at the trial left it open to the jury to find that the appellant had left the scene of the crime as late as 5.40 am (or later, if he had been running) in order to get home in time to make the telephone call at 5.56 am. Lahogue had seen the deceased woman lying at the side of the road at about 6 am. It was a matter for the jury whether, if the deceased was still alive at 6.20 am, this was consistent with the injuries having been inflicted at a time when the appellant could still have been at the scene, in the light of the evidence given by Dr Cooke. In my respectful opinion, his Honour was right, in this context, to remind the jury that Dr Cooke had not been precise in his estimate of time in circumstances in which he reminded the jury, also, that it was for them to decide this issue.
52 Counsel for the appellant made a second complaint in this regard, arising out of what was said by the trial Judge a little later in the course of his summing up. Having made the comments to which I have referred, his Honour went on to reiterate, for the jury, what had been the critical times. After mentioning the last of these, being the time at which the appellant had made a telephone call from his home (5.56 am) the trial Judge said:
"… but … [defence counsel] says, on the other hand, someone saw the woman alive at about 6.20; therefore, if Dr Cooke is right, it would have taken 20 minutes or so to die; she might have died later."
53 Counsel for the appellant suggests that his Honour was, once again, diminishing the defence case by suggesting, in this passage, that the deceased woman might have taken longer to die than had been suggested by Dr Cooke. I do not read what was said by his Honour in that way. To the contrary, it seems to me that his Honour was doing no more than repeating a defence submission to the effect that the deceased woman might have died later than 6.20 am, making it even less likely that it could have been the appellant who killed her, given that he was home by 5.56 am.
54 This ground, too, fails.
55 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Steytler P. I agree with those reasons and have nothing to add.
56 MCLURE JA: I agree with the reasons of Steytler P.
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