Alicia Jade Schiller v The Queen

[2018] VSCA 20

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0065

ALICIA JADE SCHILLER	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG, PRIEST and NIALL JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 February 2018
DATE OF JUDGMENT:	9 February 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 20
JUDGMENT APPEALED FROM:	DPP v Schiller (Unreported Supreme Court of Victoria, Justice Hollingworth, 17 March 2017 (Conviction))

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CRIMINAL LAW – Appeal – Conviction – Murder – Whether verdict unreasonable or cannot be supported having regard to the evidence – Whether open to jury to reject possibility that the applicant acted without intention to cause really serious injury – Dispute over money taken by deceased – Deceased stabbed three times with knife – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P J Smallwood	Stary Norton Halphen
For the Crown	Mr D D Gurvich QC	Mr J Cain, Solicitor for Public Prosecutions

WEINBERG JA:

1. I agree with Niall JA.

PRIEST JA:

1. I also agree with Niall JA.

NIALL JA:

Overview

1. On 9 March 2017, the applicant was convicted by a Supreme Court jury of the murder of Tyrelle Evertsen-Mostert.  The applicant seeks leave to appeal her conviction on a single ground: that the verdict of the jury on the charge of murder is unreasonable or cannot be supported having regard to the evidence.

1. Ms Evertsen-Mostert was killed by a stab wound that went through her ribs, through the pericardium, and into the heart.  She also sustained two other knife wounds, one a significant wound to the shoulder and the other an incised wound to the elbow.  There was no issue at trial that the applicant inflicted the wounds, and the only live question was whether the prosecution had proved beyond reasonable doubt that the applicant intended to cause really serious injury to Ms Evertsen-Mostert at the time she stabbed her.  The Crown did not allege that the applicant intended to kill Ms Evertsen-Mostert. 

1. On the application for leave to appeal, the applicant contended that the verdict was unsafe or unsatisfactory because there was insufficient evidence to support an inference of an intention to cause really serious injury, and the jury could not have excluded competing hypotheses consistent with innocence on the charge of murder.  I note that the applicant’s trial counsel, who did not appear before us, in his closing address to the jury contended that the applicant was guilty of manslaughter but not murder.

1. For the reasons that follow, I am not satisfied that it is reasonably arguable that the jury must, as distinct from might, have entertained a doubt about the applicant’s guilt.  More specifically, I am not satisfied that the jury was bound to conclude that there was an available inference consistent with innocence, namely that the applicant intended to inflict less than really serious injury.  The question of the intent of the applicant was necessarily a matter of inference from other facts found by the jury, and there was ample evidence on which the jury could reasonably conclude that the applicant intended to cause really serious injury to Ms Evertsen-Mostert. 

Circumstances of the offending

1. At the time of her death on 9 November 2014, Ms Evertsen-Mostert was living at 15 Ibis Court in Norlane with her partner, Jason Gentle, and their four year old son. Ms Evertsen-Mostert had been letting the applicant and her boyfriend, Luke Berg, stay in one of the bedrooms of the house.  The adult occupants of the house were regular users of drugs, including methamphetamine (‘ice’), and Ms Evertsen-Mostert was a small-time ice dealer.

1. During the afternoon or early evening of 9 November 2014, while the applicant and Mr Berg were out of the house, Ms Evertsen-Mostert took $50 from the applicant’s room so she could go and buy ice.  She intended to repay the money once she had on-sold the ice.

1. The applicant and Mr Berg arrived home while Ms Evertsen-Mostert was out of the house and the applicant soon realised that her money had been taken.  The applicant and Mr Berg became angry about the fact that money had been taken and demanded to know who had taken it.  Several acquaintances were visiting the house that day, including Travis Lines, Sarah Woods and Shane Fowler.

1. When Ms Evertsen-Mostert arrived home she went to her bedroom to divide up the ice she had bought.  Mr Fowler went into the bedroom with her.

1. The applicant and Mr Berg both entered Ms Evertsen-Mostert’s bedroom within a short period to confront her about the missing money.  The applicant jumped onto the bed, stood over Ms Evertsen-Mostert, grabbed her by the hair, and started hitting her from above.  The applicant then stabbed Ms Evertsen-Mostert three times with a short kitchen knife.

1. The evidence of the forensic pathologist, Dr Sarah Parsons, established that one wound went from Ms Evertsen-Mostert’s left shoulder through to her underarm.  One wound was a superficial incised injury to the back of her left elbow.  The fatal wound went through her ribs and into her heart, and was inflicted with at least a severe degree of force.

1. At some stage during the attack, Mr Gentle sustained a cut to his hand when he tried to intervene, and Mr Berg punched Mr Fowler, rendering him unconscious.

1. After stabbing Ms Evertsen-Mostert, the applicant took Ms Evertsen-Mostert’s mobile phone and left the house.  She discarded the knife a few streets away from Ibis Court.  When the applicant left the house, Ms Evertsen-Mostert was still alive.  An ambulance was called but Ms Evertsen-Mostert died from the stab wound to her heart.

1. The applicant was arrested on 12 November 2014 and has been in custody since that time.

The applicant’s submissions

1. On the application for leave to appeal, the applicant submitted that the evidence taken at its highest was incapable of proving the requisite intent for a conviction for murder.  Seven matters were advanced in support of that submission.

1. First, it was submitted that there was no direct evidence that the applicant acted with murderous intent (that is, an intention to kill or cause really serious injury).  

1. The second, third, and sixth matters advanced by the applicant relate to what the applicant submitted was the poor quality of the evidence of the witnesses who were present at the house and in Ms Evertsen-Mostert’s bedroom at the time of the stabbing, particularly Mr Lines, Mr Gentle and Mr Fowler.  The applicant contended that the prosecution evidence did not establish when the knife was produced or the manner in which it had been held, and that given gross inconsistences in the evidence of Mr Lines, Mr Gentle and Mr Fowler, their evidence was too unreliable to sustain a conviction for murder.

1. Fourth, the applicant relied on matters after the stabbing including the evidence that when the applicant left the house, Ms Evertsen-Mostert was still alive, conscious, alert and talking, and asked for an ambulance.  The applicant also relied on her statements made to police that she had stabbed Ms Evertsen-Mostert in the stomach rather than the heart, and statements to her mother after the event to the effect that she could not believe that Ms Evertsen-Mostert had died.

1. Sixth, the applicant relied on the evidence that suggested that the assault was neither prolonged nor sustained.  The applicant submitted that Dr Parsons’ evidence that the level of force required to cause the fatal injury was ‘at least severe’ needed to be qualified by her acknowledgement that the assessment of force was to some extent subjective and depended on factors including the sharpness of the blade and the relative kinetic energy, which in turn depended on whether the victim had been moving or stationary at the time of the injury. 

1. Finally, it was submitted that the applicant’s intoxication, evidence that the atmosphere of the house was threatening and intimating, and the brevity of the fatal encounter were consistent with the applicant having acted spontaneously and with a state of mind that fell short of murderous intent.

The applicable principles

1. The applicable principles that this Court must apply when a conviction is said to be unsafe or unsatisfactory are well established.[1]  It is necessary for this Court to ask itself whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.  That task must be undertaken in a context where the jury has the primary responsibility of determining guilt and has the benefit of seeing and hearing the witnesses.  In most cases, a doubt experienced by the appellate court will be a doubt which a jury ought also to have experienced.  As explained by the plurality in M v The Queen:

It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experience by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.[2]

[1]M v The Queen (1994) 181 CLR 487, 493-4; Libke v The Queen (2007) 230 CLR 559, 596–7 [113] (Hayne J); R v Klamo (2008) 18 VR 644, 653–4 [38]–[40] (Maxwell P).

[2]M v The Queen (1994) 181 CLR 487, 494 (Mason CJ, Deane, Dawson and Toohey JJ).

1. In Libke v The Queen,[3] Hayne J (with whom Gleeson CJ and Heydon J agreed) emphasised that the question is whether it was reasonably open to the jury to reach the verdict that it did.  In that respect, his Honour said:

But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt.  It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.  In the present case, the critical question for the jury was what assessment they made of the whole of the evidence that the complainant and the appellant gave that was relevant to the issue of consent to the digital penetration that had occurred in the park.  That evidence did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant's guilt.[4]

[3](2007) 230 CLR 559.

[4]Ibid 596–7 [113] (emphasis in original) (citations omitted) (Hayne J).

1. In this case, the Crown had to prove an actual, subjective, intention on the part of the applicant to kill or inflict really serious injury.  As recently observed in Zaburoni v The Queen:

Where liability for an offence requires proof of the intention to produce a particular result, the prosecution must establish that the accused had that result as his or her purpose or object at the time of engaging in the conduct.[5]

[5]Zaburoni v The Queen (2016) 256 CLR 482, 490–1 [17] (Kiefel, Bell and Keane JJ).

1. In order to succeed on her appeal (should leave be granted), the applicant must establish that that the jury, properly instructed and acting reasonably on the basis of all of the evidence before it, could not have concluded that there was only one reasonable inference available as to the applicant’s intent when she stabbed Ms Evertsen-Mostert.  Put another way, this Court must be satisfied that on all of the evidence the jury was bound to find that there was another reasonable inference available on the evidence, namely that the applicant intended to inflict less than really serious injury.  

Consideration

The evidence at trial

1. In order to deal with the ground of appeal, it is necessary to set out in some greater detail the evidence at trial.

1. Ms Evertsen-Mostert had regularly sold ice from the Ibis Court property, using her bedroom for the purpose of weighing, separating, bagging, and ultimately selling ice.  Her partner, Mr Gentle, and two other men, Mr Fowler and Mr Lines, would perform a security function when Ms Evertsen-Mostert was preparing and selling the drugs, and one of them would usually be present in her bedroom when she prepared drugs or when transacting sales.  The applicant and her partner, Mr Berg, were also living in the house and occupying another bedroom.

1. On the day of the incident, Ms Evertsen-Mostert, Mr Fowler, Mr Gentle, Mr Berg and the applicant were present at the house.  Mr Lines, who did not live at the house but very often visited, was also present at the house together with his partner, Ms Woods.

1. It was not in dispute at trial that Ms Evertsen-Mostert took $50 from the applicant’s room when the applicant and Mr Berg were away from the house.  Ms Evertsen-Mostert then left the house to purchase drugs.  When the applicant and Mr Berg returned to the property, they realised that the money was missing.  There were various accounts by those who gave evidence as to the nature and extent of the applicant’s response to the money having been taken.

1. Mr Lines gave evidence that both the applicant and Mr Berg were getting a bit uptight and carrying on about the missing money.  He said that the applicant was saying that ‘she was going to stab people and gut people and everything else, if that’s what it takes to get the money back’.  He said that both the applicant and Mr Berg asked Mr Lines about the money, who told them that he did not know anything about it.  On that day, Mr Lines saw that the applicant had three knives with her.  One was a small fruit knife, approximately five or six inches, while the other two were bigger carving knives, ‘probably twice the size’.  The applicant was ‘carrying on about how she was going to use them and that on people if she didn’t get that money back’.

1. In cross-examination, Mr Lines denied using ice at Ms Evertsen-Mostert’s house on that day.  He agreed that ice was being sold by Ms Evertsen-Mostert at the house every day, but she did not use it herself.  Mr Lines said that there were weapons all over the house, including knives and cross-bows, and agreed that there were weapons he could access, such as a chisel or knife, if things turned nasty.  He identified that he and Mr Fowler were the main two who heard the things being said by the applicant about gutting or cutting someone, and saw that she had knives.

1. Ms Woods gave evidence that she heard the applicant say that she was going to hurt the person who had taken the money.  In cross-examination, Ms Woods agreed that she and Mr Lines used ice at the house on 9 November 2014.  Ms Woods agreed that she had told police that she did not see any weapons on that day and did not see the applicant with any knives.  Ms Woods said that she did not hear the applicant say she was going to gut anybody, only that she was going to hurt the person.

1. Mr Fowler also gave evidence that the applicant was becoming quite agitated after the money had been taken, although he said that he did not hear any threats being made towards Ms Evertsen-Mostert or anyone else about the missing money.  In relation to the missing money, Mr Fowler gave evidence that the applicant had said ‘I am not f-ing happy … about it going missing but when [Ms Evertsen-Mostert] gets back it’ll be sorted all right one way or another’. 

1. After returning to the house, Ms Evertsen-Mostert went to her bedroom to separate the ice that she had purchased.  Mr Fowler accompanied her into the bedroom.  Mr Berg then entered the bedroom and asked Ms Evertsen-Mostert about the money that had gone missing.  Ms Evertsen-Mostert told Mr Berg that $50 had been handed to her by her son, who had been playing in the room earlier.  Mr Berg (who was maintaining that a larger sum had been taken) became agitated about the discrepancy in amounts and started to raise his voice.  During the argument, Ms Evertsen-Mostert told Mr Berg that she had written him a note telling him where the money had gone.

1. According to Mr Fowler, in the middle of the argument, the applicant entered the bedroom.  She came in quite hurriedly and jumped up onto the foot of the bed.  She then grabbed Ms Evertsen-Mostert by her hair and ‘in a hammer fist like motion she was trying to strike down on the top of her head’.  The applicant said ‘[i]t’s not all about just him you cunt’.  Whilst she was being struck in the head, Ms Evertsen-Mostert was trying to put her head down and raised her hands to cover her head.  By that stage, Mr Fowler tried to reach in between the applicant and Ms Evertsen-Mostert.  He put his hand across Ms Evertsen-Mostert’s chest to turn her around.  She grabbed hold of Mr Fowler’s chest, and he put his other arm around her, trying to ‘cover her like a blanket’.  Mr Fowler was then struck on the head and was knocked unconscious.  By the time Mr Fowler regained consciousness, Mr Gentle was in the bedroom saying, ‘[l]adies, please stop, stop, just please stop’.  Mr Gentle’s hand was bleeding.  Ms Evertsen-Mostert was standing, was grey in colour, was perspiring a lot, and she was clutching her left-hand side near her ribs.

1. At some point prior to the incident, Mr Gentle had entered the bedroom.  He gave evidence that the applicant came into the room and jumped on the bed.  Mr Gentle went to grab the applicant and was cut on the hand by a knife or something in the applicant’s pocket.  Mr Gentle’s son saw him bleeding so he took him out of the room.  When Mr Gentle came back into the room, he saw the applicant grab Ms Evertsen-Mostert on the back of the hair and punch her.  She made contact with Ms Evertsen-Mostert in the left side of the chest, around breast height.  Mr Gentle saw the applicant’s arm move towards Ms Evertsen-Mostert twice.  Mr Gentle also observed Mr Berg hit Mr Fowler in the head with a helmet which knocked him out.

1. After the stabbing Mr Gentle saw the applicant outside of the bedroom.  She was holding a baby blue knife, which was approximately six inches in length.  Although she sustained very serious injuries, Ms Evertsen-Mostert remained conscious in the initial period after the attack.  Mr Gentle said that Ms Evertsen-Mostert said to him, ‘I think you had better ring an ambulance’ and ‘[s]he got me three good ones’.  

1. Mr Fowler called an ambulance, and both he and Mr Gentle spoke to the operator. 

1. On 10 November 2014, the applicant spoke with her mother by telephone.  An acquaintance of the applicant, Nerida Williams, overheard some of the things that the applicant said to her mother.  In cross-examination, Ms Williams gave evidence that the applicant had expressed shock that Ms Evertsen-Mostert had died and conveyed to her mother that she did not think she had inflicted injuries that could have killed her. 

1. The applicant later told police that she believed that she had stabbed Ms Evertsen-Mostert in the stomach and not the heart.

The forensic evidence

1. Dr Parsons was a forensic pathologist at the Victorian Institute of Forensic Medicine who conducted a post mortem on the body of Ms Evertsen-Mostert.  Bruises and abrasions were observed on various areas of the body.  Scarring consistent with intravenous drug use was found in the bend of the left arm.  An incised injury was found on the back of the left shoulder measuring 3 centimetres in length and was suggestive of a single-bladed weapon.  A ‘through and through’ wound was found at the top of the shoulder that had gone in at the back and out through the front.  That wound had been caused by a sharp instrument, consistent with a knife.  A stab wound was found under the left breast which went through the skin, through the subcutaneous tissue, through a rib and nicked two other ribs, through the pericardium, and into the heart.  That was the wound that caused death.  The level of force required to cause this injury was at least severe.  A superficial incised injury was found on back of the left elbow that was caused by something with a sharp edge.

Conclusion

1. The critical issue for the jury was relatively confined and the Crown case a strong one.  The evidence relevant to the critical issue of intent did not necessarily depend on a resolution of each of the differing accounts as to what occurred in the lead up to the fatal assault.  The evidence clearly established the applicant was angry with Ms Evertsen-Mostert as a result of her taking the money, the aggressive nature of the confrontation which occurred in Ms Evertsen-Mostert’s bedroom, and the fact that the applicant had jumped on the bed, pulled Ms Evertsen-Mostert’s hair, and struck her.  Of critical importance was the use of a knife to inflict three serious wounds.  The third and fatal one was directed to the upper torso, delivered with at least severe force, and penetrated the heart.  None of those matters was seriously in dispute. 

1. There was ample non-contentious evidence upon which the jury could conclude that the applicant was guilty of murder.  To the extent that the applicant impugned the evidence of Mr Fowler, Mr Lines and Mr Gentle, that attack did not undermine these essential aspects of the Crown case.

1. The applicant submitted that the evidence of Mr Lines, Mr Fowler and Mr Gentle was so unreliable as to render the verdict unsafe.  In relation to Mr Lines it was argued that his evidence that the applicant had threatened to cut or gut the person who had taken the money and that the applicant was in possession of three knives on the day was unreliable on the basis that it was proffered to the police some 15 months after the event, that he had left out evidence of drug use in his statements to the police, and that his evidence was not corroborated by the other people in the house.  His delay in making a statement to police, longterm drug use, and past convictions were also said to undermine the reliability of his evidence. 

1. In relation to Mr Fowler the applicant relied on the fact that in his first two statements to police he left out any references to having witnessed the incident between the applicant and Ms Evertsen-Mostert and in his first three statements he omitted any reference to drug trafficking and drug use.  Mr Gentle gave evidence that neither he nor Ms Evertsen-Mostert were involved with drugs which was patently false.

1. The various discrepancies between the witnesses’ accounts were capable of being assessed and considered by the jury.  The jury were directed about the potential unreliability of the evidence of Mr Lines and Mr Gentle in clear and unexceptionable terms, and they were well placed to make findings of fact in relation to that evidence.  The advantage they had in seeing all of the evidence is not one enjoyed by this Court.  

1. It was for the jury to resolve those factual matters before it came to draw inferences as to the applicant’s state of mind.  Any shortcomings in the individual accounts given by Mr Lines, Mr Gentle and Mr Fowler were matters for the jury to weigh as part of the overall context in which the assault occurred. 

1. Moreover, it was open to the jury to convict the applicant even if the jury did not accept the evidence of Mr Lines, Mr Fowler and Mr Gentle on those few matters on which there was a genuine contest.  

1. It is possible to deal briefly with the specific matters raised by the applicant.  First, the absence of any direct evidence as to intent is unremarkable.  The jury were instructed that it would be necessary for them to draw inferences as to the applicant’s intent from the facts they found, and that they could not infer that the applicant intended to cause really serious injury unless it was the only reasonable inference open on the facts.  It was for the jury to determine what inferences were available from the facts found by them.

1. It was open to the jury to accept the evidence of Mr Lines as to the hostility and anger felt by the applicant towards Ms Evertsen-Mostert and that she had threatened to gut, cut or hurt Ms Evertsen-Mostert.  It was also open to the jury to accept the accounts given by Mr Gentle and by Mr Fowler even though Mr Fowler had been knocked unconscious before the stabbing and even though neither Mr Gentle nor Mr Fowler had seen the stabbing.  

1. The absence of evidence as to when the knife was produced, how it was held during the attack, and the statements that the applicant made after the attack to the effect that she was shocked that Ms Evertsen-Mostert had died and believed she had stabbed her victim in the stomach not the heart were matters that formed part of the factual matrix, and it was open to the jury to regard them as of little consequence.  They did not undermine the Crown case to any appreciable degree and did not stand in the way of a rational conclusion as to guilt.  Indeed the applicant’s statement to the police that she believed that she had stabbed the applicant in the stomach, even if that genuinely was her belief, was capable of supporting rather than undermining the Crown case.  

1. The fact that Ms Evertsen-Mostert remained conscious for a period of time and was speaking after the attack said nothing about the applicant’s intent at the time she stabbed Ms Evertsen-Mostert.  

1. Dr Parsons acknowledged in her evidence that the actual force needed to penetrate the pericardium and the heart depended on a number of variables including the sharpness of the blade and whether the victim was moving at the point of impact.  That evidence was a matter for the jury to assess.  It was well open to the jury to conclude that the applicant used at least severe force in delivering the fatal wound. 

1. Finally, the evidence of the applicant’s drug use, the short time period in which the assault occurred, and the overall atmosphere of the house were matters for the jury to weigh.  In the light of the uncontroversial facts it was open to the jury to give them little or no weight in assessing the applicant’s intent. 

1. None of the matters advanced by the applicant precluded the jury from inferring that the applicant intended to cause really serious injury and that no other inference was reasonably open.  None of the matters relied on by the applicant, either alone or in combination, give rise to a reasonable doubt as to the applicant’s guilt. 

1. In my view, the application for leave to appeal conviction should be refused.

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