Austic v The State of Western Australia
[2010] WASCA 110
•11 JUNE 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: AUSTIC -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 110
CORAM: McLURE P
BUSS JA
JENKINS J
HEARD: 16 FEBRUARY 2010
DELIVERED : 11 JUNE 2010
FILE NO/S: CACR 79 of 2009
CACR 88 of 2009
BETWEEN: SCOTT DOUGLAS AUSTIC
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :BLAXELL J
File No :INS 106 of 2008
Catchwords:
Criminal law - Appeal against conviction - Wilful murder - Summing up - Whether necessary for trial judge to identify opportunity as intermediate fact constituting indispensable link in chain of reasoning towards inference of guilt - Whether necessary for trial judge specifically to direct jury that the weight to be given to expert evidence was exclusively a matter for them
Criminal law - Appeal against sentence - Murder - Offending towards upper range of seriousness for murders - Killing of woman and her unborn child - Life imprisonment with minimum period of 25 years before appellant eligible for release on parole - Whether minimum nonparole period manifestly excessive - Proper approach to sentencing for murder under legislative scheme created by Criminal Law Amendment (Homicide) Act 2008 (WA)
Legislation:
Criminal Code (WA), s 279, s 740
Criminal Law Amendment (Homicide) Act 2008 (WA), s 10, s 19
Sentencing Act 1995 (WA), s 90
Result:
Appeal against conviction dismissed
Leave to appeal against sentence granted
Appeal against sentence dismissed
Category: A
Representation:
Counsel:
Appellant: Mr L M Levy SC
Respondent: Mr D Dempster
Solicitors:
Appellant: Carlo Primerano & Associates
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438
Alikhani v The Queen [2001] WASCA 55
Atherden v The State of Western Australia [2010] WASCA 33
Buckland v The Queen (Unreported, WASCA, Library No 980144, 3 April 1998)
Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525
Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384
Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367
Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193
Fraser v The State of Western Australia [2009] WASCA 23
Gamble v The State of Western Australia [2007] WASCA 120
Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372
Hall v The Queen (1988) 36 A Crim R 368
Hobby v The Queen (Unreported, WASCA, Library No 990013, 22 January 1999)
Hone v The State of Western Australia [2007] WASCA 283; (2007) 179 A Crim R 138
Kenneally v The Queen (Unreported, WASCA, Library No 980284, 27 May 1998)
Khoo v The Queen (Unreported, WASCA, Library No 960184, 2 April 1996)
Lauritsen v The Queen [2000] WASCA 203; (2000) 22 WAR 442
Leyshon v The State of Western Australia [2007] WASCA 223
MacKenzie v The Queen [2004] WASCA 146; (2004) 150 A Crim R 451
Meko v The Queen [2004] WASCA 159; (2004) 146 A Crim R 131
Middleton v The Queen [2000] WASCA 213
Mitchell v The Queen (1998) 20 WAR 257
Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85
Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234
Power v The Queen [1974] HCA 26; (1974) 131 CLR 623
R v Hillier [2007] HCA 13; (2007) 228 CLR 618
R v Klamo [2008] VSCA 75; (2008) 18 VR 644
Roberts v The Queen [2003] WASCA 237; (2003) 28 WAR 381
Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573
Stapleton v The Queen [2002] WASCA 328; (2002) 136 A Crim R 65
Stasinowsky v The State of Western Australia [2009] WASCA 20
Teakle v The State of Western Australia [2007] WASCA 15; (2007) 33 WAR 188
Vella v The State of Western Australia [2006] WASCA 177
Williams v The Queen (1996) 17 WAR 17
Table of Contents
McLure P's reasons.................................................................................................................. 5
Buss JA's reasons..................................................................................................................... 6
Overview of the prosecution case at trial
The evidence of the prosecution witnesses and its significance
The evidence of the defence witnesses and its significance
Appeal against conviction: grounds of appeal
Appeal against conviction: grounds 1 and 2: appellant's submissions
Appeal against conviction: grounds 1 and 2: their merits
Appeal against conviction: ground 3: appellant's submissions
Appeal against conviction: ground 3: its merits
Appeal against sentence: ground of appeal
Appeal against sentence: the relevant legislative scheme
Appeal against sentence: the appellant's submissions
Appeal against sentence: the proper approach to sentencing under the new legislative scheme
Appeal against sentence: its merits
The result of the appeals
Jenkins J's reasons................................................................................................................. 53
McLURE P: I agree with the orders proposed by Buss JA generally for the reasons he gives. I intend to shortly state my reasons for joining in the dismissal of grounds 1 and 2 in the conviction appeal. The case against the appellant was largely based on circumstantial evidence. The appellant contends the trial judge erred in failing to direct the jury that they had to be satisfied beyond reasonable doubt that the appellant (1) returned to the deceased's home after 10.30 pm on 9 December 2007 and (2) had the opportunity to kill the deceased. The appellant contends those two facts were indispensable links in a chain of reasoning towards guilt. Both facts concern the question of opportunity, the former being at a higher level of specificity than the latter.
I do not accept the premise that either of the facts are indispensable links in a chain of reasoning towards guilt. Whether or not an intermediate fact is an indispensable link in a chain of reasoning towards guilt depends upon the issues and evidence in a particular case. As noted by Dawson J in Shepherd v The Queen (1990) 170 CLR 573, 581, whether or not the presence of the accused when the crime was committed is an indispensable link in the chain of reasoning depends on the circumstances of the case.
A fact will be an indispensable link in a chain of reasoning if it is a discrete step which must be proven before addressing the next step in the reasoning process towards the ultimate inference of guilt: Shepherd (576) (Mason CJ). That is, proof of the fact is a necessary condition for establishing a further (and different) fact.
The trial judge directed the jury that they had to be satisfied beyond reasonable doubt that the appellant killed the deceased, that being an element of the offence of wilful murder. The appellant could not have killed the deceased unless he had the opportunity to and was in the presence of the deceased when she was killed. However, opportunity and/or presence were not discrete steps in the reasoning process in this case. All of the circumstantial evidence in the case comprised strands in a cable rather than links in a chain on the issue of whether the appellant killed the deceased.
The way in which the appellant has formulated the specific fact said to be an indispensable link seeks to focus attention on the evidence relating to timing (that is, the time he left his house, the time it would take to get to the deceased's house, when the deceased was stabbed having regard to the evidence of the forensic pathologist and the neighbours about what they saw and heard and when). However, that was not the
only relevant evidence of opportunity. There was the presence of the deceased's blood and DNA on the thongs worn by the appellant on the night the deceased was killed; the presence of the deceased's blood and DNA on Jim Beam cans in the appellant's refrigerator and on a cigarette packet on the back verandah of his house; the presence of the deceased's blood on the base of the Jim Beam can found on the kitchen bench in the appellant's house and the appellant's DNA on the mouth of that can; the location of the knife with the deceased's blood and DNA in a paddock in close proximity to an alternative and secluded route from the deceased's house to the appellant's house; the white Jim Beam can with the appellant's fingerprints and DNA located 20 m from the deceased's unit with evidence that the can was handled by the appellant after his first visit to the deceased's house; the appellant's lies to police about the clothing he was wearing on the evening of the murder; and the remnants of burnt clothing found in the wood stove in the appellant's house. This evidence, which went directly to the question of whether the appellant killed the deceased, ipso facto established opportunity. Opportunity was not a discrete issue which had to be determined beyond reasonable doubt before turning to the question of whether the appellant killed the deceased.
BUSS JA: On 6 April 2009, the appellant was convicted after a trial in the Supreme Court before Blaxell J and a jury of the wilful murder of Stacey Robyn Thorne, contrary to s 278 (repealed) and s 282 (repealed) of the Criminal Code (WA).
The trial judge sentenced the appellant to life imprisonment. His Honour ordered that he serve a minimum period of 25years before becoming eligible for release on parole. The sentence was back‑dated to commence on 14 December 2007.
The appellant appeals to this court against his conviction and sentence.
Overview of the prosecution case at trial
The deceased, Stacey Robyn Thorne, was aged 34 years and was 22 weeks pregnant when she died. The appellant was the father of the unborn child.
The prosecution alleged that the appellant had murdered the deceased to prevent the birth of the baby. Its case was based, in essence, on circumstantial evidence. In summary, the prosecution case at trial was as follows.
The appellant and the deceased had known each other for many years. They had been involved in a casual sexual relationship for about 12 months before the deceased's death.
The deceased lived in a home unit at 3 Hill Street, Boddington. The appellant lived at 3 Hotham Avenue, Boddington. The distance between their homes was about 350 m.
The appellant kept his relationship with the deceased secret. He went to her home only for the purposes of sex. The visits were made when he was drunk.
The prosecution alleged that before the deceased's death the appellant had attempted to persuade her to have an abortion. On 29 November 2007, the appellant sent the deceased a text message begging and pleading with her not to have the baby.
On the evening of 9 December 2007, the appellant went to the Boddington hotel. He became intoxicated. Staff at the hotel requested him to leave. He did so.
After leaving the Boddington hotel, the appellant arranged to go to the deceased's home. He arrived at about 7.45 pm. He stayed there for some time and had sexual intercourse with her.
The appellant then walked to his home, arriving at some time before 10.00 pm. His house mates, Steven Henson and Craig Kemp, were present.
Mr Kemp went to bed at about 10.30 pm. Soon afterwards, the appellant returned on foot to the deceased's home. He stabbed her 21 times with a folding knife. The stabbing occurred in her bedroom.
The appellant then walked to his home, leaving the deceased to die. He travelled through some paddocks in order to avoid detection. On the journey, he threw away the knife.
On returning home, the appellant set about destroying evidence that could implicate him in the deceased's murder. In particular:
(a)he burned his clothes in a wood‑fire heater; and
(b)he had a shower, and washed the thongs he had been wearing, to remove traces of the deceased's blood.
Later, the appellant took other steps to avoid detection. These included telling lies to the police who were investigating the deceased's murder. For example, he lied about the clothes he had been wearing when he went to the Boddington hotel and her home unit.
The evidence of the prosecution witnesses and its significance
Lenore Tink, a neighbour of the deceased, heard 'noises' on the night of the deceased's death (ts 173 ‑ 174). She first heard these noises about 10 or 15 minutes after she persuaded her husband to go to bed. This persuasion occurred, she said, at 10.35 pm based on their microwave clock (ts 174 ‑ 175). The microwave clock was accurate to within five or six minutes (ts 174). Ms Tink agreed that she first heard the noises between about 10.40 pm and 10.50 pm (ts 175). The noises were 'like singing or crying to [sic] calling out' (ts 172). Ms Tink's dogs started barking. She checked on them but found nothing amiss (ts 172). Soon afterwards, the dogs started barking again. Ms Tink went to the front door and heard the noises again. She then saw a person staggering on the footpath at the front of her property (ts 172). She told her husband what she had seen. Ms Tink then telephoned the '000' emergency number. This call was recorded at 11.12 pm (ts 182). She then saw the person stagger and fall at the front of her property. Ms Tink telephoned '000' again. This call was recorded at 11.19 pm (ts 182).
At 11.07 pm on the evening in question, another of the deceased's neighbours, Toni Gelissen, heard the deceased call out twice, 'Help me, please, someone' (ts 164).
At about 11.30 pm, the police arrived. They found the deceased about 100 m from her home (ts 181). She was dead. Shortly after the police found the deceased's body, they went to her home. They observed large quantities of blood in the doorway and on the footpath (ts 179).
Dr Karin Margolius, a forensic pathologist, carried out a post-mortem on the deceased. She concluded that the deceased had died from 'penetrating wounds to chest' (ts 457). There were about 21 wounds. These were consistent with having been inflicted by a sharp instrument such as a knife. Four of the wounds were, on their own, potentially fatal. The deceased's injuries included:
(a)Multiple wounds to the front and back of her chest. Some wounds penetrated the chest wall and damaged her ribs.
(b)The most serious wound was a 15 cm penetrating wound on the top of the right breast which penetrated the lung. This permitted air to enter the lung and brought about a mediastinal shift. Death followed shortly afterwards.
(c)Multiple 'defence type' wounds to her arms (ts 440 ‑ 442).
Dr Margolius gave evidence that the period between the infliction of the injuries and the time of death was 'perhaps less than half an hour' (ts 454). She agreed, however, with the trial judge's question 'you said … from the time of infliction of the injuries death was not immediate and at least half an hour' (ts 456). Also, Dr Margolius gave evidence that the deceased would have been unconscious for some time before her death, and that she had included this period in the 'half hour or so' (ts 456).
On 10 December 2007, at 5.45 am (that is, about six to seven hours after the deceased's murder), Detective Senior Constable Brendan O'Keefe, Detective Senior Sergeant John Hindriksen, Detective Craig Mellors and Detective Darren Simmons went to the appellant's home. The detectives had ascertained details of the appellant's relationship with the deceased after speaking to members of her family (ts 138). The detectives discovered that, in addition to the appellant, Mr Kemp and Mr Henson resided at the appellant's home.
Detective O'Keefe gave evidence that when he informed the appellant of the deceased's murder, 'he didn't really appear fazed by the information' (ts 251).
On 10 December 2007, at about 5.45 am, the appellant informed the police that:
(a)he had last seen the deceased at about 9.00 pm the previous evening;
(b)he had gone to the deceased's home after being at the Boddington hotel;
(c)the clothes he had worn at the Boddington hotel were:
(i)a red 'Big Day Out' T-shirt;
(ii)black shorts;
(iii)black thongs; and
(iv)sunglasses.
The police seized these clothes as well as a blue T-shirt which the appellant said he could have been wearing.
The appellant then attended at the police station and participated in a formal record of interview (First Interview).
During the First Interview, the appellant said:
(a)He and the deceased had known each other since school.
(b)They had been involved in a casual sexual relationship for about 12 months, and he would attend her home only when drunk and for the purpose of having sex with her.
(c)The deceased had told him three to four months previously that she was pregnant, and he knew that he was likely to be the father of the child.
(d)He had not really discussed the pregnancy with the deceased, and he was not particularly concerned about it; however, he would have preferred that she not have the child, and he had asked her to have an abortion.
(e)The child would have caused him additional financial hardship. He was already contributing to the maintenance of his two daughters by another woman, his former de facto partner.
(f)He had been at home the previous day. Between midday and about 10.30 pm to 11.00 pm he had consumed 10 to 12 beers and about four or five Jim Beam cans.
(g)He had gone to the Boddington hotel the previous day. He was wearing the clothes that he had identified for the police.
(h)He stayed at the hotel for a couple of hours. He then telephoned the deceased and arranged to go to her home. He 'grabbed a couple of [Jim Beam] takeaways' before leaving the hotel. He then walked from the hotel to the deceased's home. He had sex with the deceased while at her home. He was there for 20 to 30 minutes.
(i)He then walked home. When he arrived he found his house mates watching a DVD entitled 'Lock, Stock and Two Smoking Barrels'. He made himself a sandwich, watched the DVD for a while, and then went to bed. He did not leave the house again that night.
(j)He showered before going to bed.
(k)He said there was no reason why the deceased's blood would be on his thongs. Also, there would be no reason why the police would find any of the deceased's blood at his home. He said the only time the deceased had bled in his presence was about eight months previously when she had her period.
(l)He said that he had sustained two cuts on his left hand the previous night while slicing chicken for the purpose of making the sandwich.
After the First Interview, police attended at the Boddington hotel to check the appellant's account. A video taken by the hotel's security system showed the appellant was at the hotel from about 5.30 pm the previous day. The footage revealed that the appellant was not wearing a red 'Big Day Out' T-shirt at the hotel, as he had claimed. The prosecution relied on this discrepancy as an Edwards lie (Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193) that was told out of a consciousness of guilt and a fear that the truth would incriminate him in the deceased's murder. The clothing which the video footage showed the appellant was wearing at the hotel was never located by the police.
Staff at the Boddington hotel gave evidence that when the appellant was at the hotel on the evening of 9 December 2007, he appeared to be intoxicated. Elizabeth Denton, a bar attendant, decided not to serve him any more alcohol (ts 318).
Paula Millsteed, another bar attendant at the hotel, corroborated Ms Denton's evidence. Ms Millsteed said that some time after she finished work (after 7.00 pm) she saw the appellant outside the hotel behaving in an antisocial manner. As a result, she instructed Ms Denton to cease serving alcohol to him (ts 326).
The appellant, who was not argumentative but was becoming loud, then agreed to purchase a can of Jim Beam and Winfield Blue cigarettes, and leave the hotel. Another patron, Colin Moore, agreed to purchase the can on condition that the appellant left the hotel immediately (ts 306, 319). Ms Denton gave evidence that she handed the appellant one black Jim Beam can before he left the hotel (ts 319). It was not put to Ms Denton in cross‑examination that she gave the appellant other than one can or that the can she gave him was other than black in colour. Ms Denton saw the appellant leave the hotel and turn right in the direction of Dwellingup (ts 319).
Mr Moore said in evidence that the appellant's behaviour immediately before he left the hotel was 'boisterous', but not aggressive. He said in examination‑in‑chief that he purchased a black Jim Beam can for the appellant (ts 308). He saw the appellant turn south in the direction of Dwellingup when he left the hotel, with the can in his hand (ts 307). This was not the direction to the deceased's home. Mr Moore said in cross‑examination that he saw Ms Denton get a white Jim Beam can for the appellant (ts 309), even though he was confident that the appellant left the hotel with only one Jim Beam can in his hand. Mr Moore was confident because he had paid for the drink (ts 319). According to the prosecution, this evidence was inconsistent with the appellant's assertion during the First Interview that he had purchased two Jim Beam cans.
Lyall Thorne gave evidence which contradicted the appellant's assertion during the First Interview that he had gone immediately from the Boddington hotel to the deceased's home. According to Mr Lyall Thorne, on the evening of 9 December 2007 he (Mr Thorne) was at the house where he resided with his mother and siblings. Between 7.30 pm and 8.30 pm the appellant was at Mr Lyall Thorne's home. The appellant appeared to be drunk and he asked Mr Lyall Thorne if his mother, Denise Thorne, was there. She was not. Mr Lyall Thorne said in evidence that the appellant had a black Jim Beam can in his hand. He appeared to be angry (ts 334). After a few minutes, the appellant walked away. Mr Lyall Thorne saw him talking to Kristy Jones on the corner (ts 333).
Ms Jones confirmed that at about 7.30 pm on the evening in question she saw the appellant (ts 357). He was wearing a T-shirt, shorts and a black and white cap (ts 357). She first saw him sitting on the kerb on the corner of Banksia Court and Bannister Road. He appeared to be using a mobile telephone (ts 355). She thought there was a stubby holder on the ground next to him.
Telephone records tendered in evidence revealed that the appellant made two telephone calls to the deceased on the evening of 9 December 2007. The calls were made at 6.24 pm and 7.43 pm.
The appellant's house mates gave evidence about the appellant's movements on the evening in question.
Mr Henson said in evidence that he arrived home at about 9.30 pm (ts 368). Before arriving home, he stopped at the Premier hotel in Pinjarra and purchased a six-pack of white Jim Beam cans (ts 369). Video footage from the Premier hotel's security system showed that Mr Henson made his purchase at 8.27 pm. He said it took him about an hour to drive from the Premier hotel to Boddington. During the journey, he consumed one of the cans he had purchased. He thought that he had thrown the empty can in a green bin at the front of the house when he got home (ts 372).
Detectives found only one Jim Beam can (white or otherwise) at the top of the green bin at the front of the appellant's home. This can was photographed in the location in which it was found and tendered as exhibit 50 (ts 653). It was white in colour and possessed double stamping: '22 OCT 08 A22:46' and '22 OCT 08 A22:47'.
Mr Henson gave evidence that the remaining five white Jim Beam cans he had purchased from the Premier hotel were placed by him, in their cardboard wrapper, in the refrigerator at the appellant's home (ts 372). The only white Jim Beam cans found by the police in a cardboard wrapper in the refrigerator at the appellant's home were tendered as exhibit 43 (ts 646). There were three cans and the manufacturer's stampings on the cans varied between '22 OCT 08 A22:06', '22 OCT 08 A22:16' and '22 OCT 08 A22:17'. They were found on the bottom shelf of the refrigerator (ts 646). There was only one other white Jim Beam can with similar stampings (which was not in the cardboard wrapper) found by the police in the refrigerator. This can was tendered as exhibit 42E and was found on the top shelf of the refrigerator. Accordingly, only five white Jim Beam cans with stampings consistent with the cans found in the cardboard wrapper were located at the appellant's home. A sixth white Jim Beam can with similar stampings was not found at his home.
Mr Henson said in evidence that when he arrived home Mr Kemp was there watching the DVD, 'Lock, Stock and Two Smoking Barrels'. Mr Henson lay on a couch and watched the DVD. It was about halfway through when he arrived home.
Mr Kemp's evidence was that the appellant arrived home at 9.00 pm and that Mr Henson arrived home at a 'rough guess' at 8.30 pm (ts 407). Mr Henson's evidence was that about 15 minutes after he arrived home, the appellant entered through the back door. On Mr Henson's evidence, the appellant returned home at about 9.45 pm.
Mr Henson gave evidence that he and the appellant spoke for about 15 to 20 minutes after the appellant arrived home (ts 373). According to Mr Henson, the appellant and Mr Kemp then went outside to smoke a cigarette.
Mr Henson watched the DVD until it finished and then went to his room at about 10.30 pm (ts 373 ‑ 374). He played with his mobile telephone for a few minutes and then went to sleep. Before he went to sleep, and not long after going to his room, Mr Henson heard the back door open and close (ts 374).
The appellant's home had a wood‑fire heater. Mr Kemp denied burning any clothes or seeing any other occupant of the house burning clothing in the wood‑fire heater (ts 412). Mr Kemp said that the fire had not been lit for 'at least four months' (ts 412). Mr Henson gave evidence that he had not burnt clothing in the wood-fire heater, nor had he seen either Mr Kemp or the appellant burn any clothing (ts 377).
Mr Kemp had never seen the appellant with the knife that the police alleged was the murder weapon (ts 415). Mr Henson said that neither he nor any other occupant of the house owned any pocket knives (ts 376).
After the police checked the video footage taken from the Boddington hotel which depicted the appellant in different clothes from those he said he had been wearing, the police interviewed him for a second time (Second Interview). The Second Interview was conducted on 10 December 2007 between 2.55 pm and 4.28 pm. During the Second Interview the appellant maintained in essence the account he had given earlier.
The appellant did, however, make a number of concessions and admissions during the Second Interview. These included:
(a)He accepted that he was wrong about the clothes he said he had been wearing at the Boddington hotel.
(b)He accepted that he had spoken to Kristy Jones on the evening in question, although he maintained that it was at the hotel. He did not recall attending Denise Thorne's home, although he admitted he may have gone there to speak about a wallet that went missing from his home about six weeks previously.
(c)Detective Hindriksen asked questions about what he thought may have been blood on the appellant's thongs. The appellant said it was possible that it was the deceased's blood, although he could not recall there being any blood on the floor of her home the night before.
(d)He admitted his thongs had been found in the bathroom of his home. Although he said it may have been possible that he had washed his thongs because they had mud on them, he accepted that there had been no rain.
A large amount of forensic evidence was accumulated in the course of the investigation. Most of this evidence did not implicate the appellant. In particular:
(a)DNA analysis confirmed that all of the blood in the deceased's home was the deceased's blood.
(b)All fingerprints found in the deceased's home, except for two, came from the deceased. The other two fingerprints could not be identified, but they did not belong to the appellant.
(c)Shoe impressions found outside the appellant's home belonged to the police who initially attended the crime scene.
(d)Tyre impressions found outside the deceased's home belonged either to a van that was usually parked at the front of the block of units or to another vehicle that was parked there regularly.
(e)Shoe impressions inside the deceased's home were made by thongs, but they did not match the appellant's thongs. The police were unable to estimate the age of the impressions.
(f)Bloody footprints inside the deceased's home belonged to the deceased.
Senior Constable Brett McCance, a blood pattern specialist, gave evidence that the stabbing of the deceased was consistent with it having occurred while she was between the bed and the wall in her bedroom.
A bloodied footprint trail suggested that the deceased had gone from the bedroom to the lounge room and then out the front door onto the porch. The trail indicated that she had then travelled along Hill Street to the front door of number 5. Eventually, the blood trail ended in the front yard of 9 Hill Street, where she died.
About three days after the murder, Detective Hindriksen found a silver Excalibur fold‑back knife in a paddock near the deceased's home. The paddock was between the deceased's home and the appellant's home. The knife was not concealed and had red‑brown staining (ts 267). A DNA profile taken from the red‑brown stain matched the deceased's profile.
The prosecution alleged that the knife was the murder weapon. Dr Margolius was, however, equivocal as to whether the knife in fact caused all of the deceased's injuries. She was of the view that the knife could have caused most of the wounds. She was uncertain as to some of the wounds because of their depth (ts 459).
The police obtained a black 'KTM' cap from inside the deceased's home. The appellant had been seen wearing this cap at the Boddington hotel on the evening in question.
The police also found a black Jim Beam can inside the deceased's home. DNA analysis of swabs from the can matched the appellant's profile. This evidence supported the prosecution's contention that the appellant had been at the deceased's home. In any event, the appellant admitted this contention in his records of interview with the police.
The police also found a cigarette butt on a table in the deceased's home. The butt had the appellant's DNA on it.
A mobile telephone of the deceased was located. When the police downloaded messages from the telephone, they found an SMS from the appellant, sent to the deceased about 10 days before her death, in which he begged and pleaded with her not to have the baby.
A white Jim Beam can was located about 20 m from the boundary of the deceased's unit. It was across the road (ts 762). The can was labelled 'NB 31' by the police and it became exhibit 20 at the trial (ts 486). The can was tested for fingerprints and DNA. The appellant's fingerprints were found on the outside of the can and a DNA profile matching the appellant's profile was found on the mouth of the can.
The white Jim Beam can with the appellant's fingerprints and DNA was alleged by the prosecution to be of significance for several reasons. First, the can was, on the prosecution's case, one of the cans bought by Mr Henson at the Pinjarra hotel on the evening of 9 December 2007. Secondly, on the prosecution's case, the can could only have been deposited 20 m from the deceased's home after Mr Henson had returned to the appellant's home. Thirdly, on the prosecution's case, the can was deposited in the location in which it was found when the appellant returned to the deceased's home for a second time, and was probably dumped there before the appellant entered her home for a second time that night.
Significant features of the various Jim Beam cans were, on the prosecution's case, these:
(a)Exhibit 20: the white Jim Beam can found near the deceased's unit: this can was stamped twice with '22 OCT 08 A22:23'.
(b)Exhibit 42A ‑ F: the six white Jim Beam cans found on the top shelf of the refrigerator at the appellant's home: exhibit 42E was stamped twice with '22 OCT 08 A 22:23'.
(c)Exhibit 43: three white Jim Beam cans found, still in the cardboard wrapper, on the bottom shelf of the refrigerator at the appellant's home: stampings varied between '22 OCT 08 A22:06', ' 22 OCT 08 A22:16' and '22 OCT 08 A22.17'.
(d)Exhibit 50: the empty white Jim Beam can found at the top of the green bin at the front of the appellant's home: stamped '22 OCT 08 A22:46' and '22 OCT 08 A22:47'.
(e)Exhibits 20 and 42E had identical stampings: exhibits 43 and 50 had similar stampings.
It was the prosecution's contention that exhibits 20, 42E, 43 and 50 comprised the six‑pack which Mr Henson had purchased at the Pinjarra hotel on the evening in question.
The only Jim Beam cans that could be associated with a cardboard wrapper were the six white Jim Beam cans comprising exhibits 20, 42E, 43 and 50 because they bore stampings consistent with those on the cardboard wrapper.
The prosecution called Phillip Gock, a representative of Jim Beam Australia. He gave evidence that the stamping appearing on the bottom of each can is a batch code number. The batch code number indicates the 'best before' date, which is one year after the date on which the can is produced, the plant where it was manufactured and the time of production. The letter 'A' indicates that the can was produced in Adelaide. The last four digits indicate the time at which the can was filled. About 200 ‑ 300 cans are accumulated at one time and then organised into six‑packs. The cardboard wrapper of a six‑pack also carries a batch code reference. All the cans in a six‑pack and the cardboard wrapper have the same batch code, with some variations in the times at the end of the code (ts 701 ‑ 703).
The police found the following items at the appellant's home:
(a)A packet of Winfield Blue cigarettes was found on the back verandah and DNA analysis of the packet revealed the presence of the deceased's blood.
(b)On some of the six white Jim Beam cans found on the top shelf of the refrigerator there was red‑brown staining which tested positive for blood. The DNA profile on one of the cans matched the deceased's profile.
(c)A white Jim Beam can ('AC29') was found on the kitchen bench. A DNA test on the mouth area of the can revealed a profile which matched the appellant's profile. Four stains on the can tested positive for human blood. Three of these stains had a mixed DNA profile consistent with having come from the appellant and the deceased: these stains were 10 billion times more likely to have come from the appellant and the deceased than from two unknown people. The fourth stain, on the bottom of the can, had a DNA profile which matched the deceased's profile. Further, this stain had what appeared to be 'ridge detail'. Although the fingerprint experts were unable to identify the print, the prosecution alleged that the stain was made by the appellant when he handled the can at a time when he had the deceased's blood on his fingers.
(d)Remnants of burnt clothes were found in the wood‑fire heater. As I have mentioned, the clothes worn by the appellant, as seen on the video footage taken at the Boddington hotel on the evening of 9 December 2007, were not located. The prosecution alleged that the clothes burnt in the wood‑fire heater were in fact the clothes worn by the appellant when he killed the deceased, and that he burned them for the purpose of avoiding detection. A piece of newspaper found in the wood‑fire heater depicted an advertisement in the Boddington local newspaper. That advertisement appeared only in the editions of 15 and 22 November 2007. This suggested that the clothes were burnt after 15 November 2007.
(e)Rubber thongs found in the bathroom on 10 December 2007 (that is, the day after the murder) had five stains that tested positive for blood. There were three stains on the left thong and two on the right thong. Four of these stains had DNA profiles which matched the deceased's profile.
On 14 December 2007, the appellant was interviewed by the police for a third time (Third Interview). He maintained in effect what he had said during the Second Interview.
The appellant was asked about the mobile telephone text message located on page 17 of exhibit 79. It reads:
Hey stacey i just got a call saying that if she is pregnant u r never gona c yr girls again.I will do anything 4 u 2 not have it please.Just let me no.Please stacey anything.
The message was sent on 29 November 2007.
The appellant admitted sending this message but claimed its contents were untrue in that he had never received a telephone call from the mother of his two daughters concerning the deceased's pregnancy. He explained that he had sent the message in order to determine whether the deceased was in fact pregnant. According to the prosecution, the appellant's statement in the course of the First Interview that he was not overly concerned about the deceased's pregnancy, was a lie.
The evidence of the defence witnesses and its significance
The appellant denied that he had murdered the deceased. His case was that after he arrived home from the deceased's unit, he never left the house again that evening. It was also his case that, on one interpretation of the time periods revealed by the evidence, he did not have the opportunity to commit the murder.
The appellant, who was aged 32 years when the deceased died, did not give sworn evidence in his own defence. He relied on the video records of his interviews with the police.
As to the inconsistencies between the appellant's statements in the First Interview about his clothing and what the police discovered subsequently about his clothing on the evening of the murder, the appellant's contention was that he had made an honest mistake. He had told the police what he thought he was wearing that night.
The appellant raised the possibility that the murder had been committed by another person. In particular, it was contended on his behalf that there were two other possible suspects. They were the deceased's nephew, Spencer Thorne, and her cousin, Denise Thorne. Early in the investigation, these people were identified by the police as suspects (ts 271).
When the deceased died, Spencer Thorne lived at 12 Christie Street, Ranford. He lived there with others including Susan Woods (Spencer's grandmother and the mother of the deceased); David Thorne (the deceased's father); David Spencer Thorne (the deceased's brother); David Spencer Thorne's girlfriend, Vianne, and their son, David. The distance from Ranford to Boddington is about 2 km from the Bannister Road and Crossman Road turn‑off (ts 182). Spencer Thorne said the house was about a 15 minute walk from Boddington (ts 193).
When the deceased died, Spencer Thorne was aged 13 years. David Spencer Thorne gave evidence that 'hunting's been a big part of our family for years and we'll go out hunt kangaroos, emus, whatnot and yeah we've learnt Spencer to skin a kangaroo at an early age … He'd only used knives when he go fishing or hunting … liked a sharp knife. He's use a knife or yeah a sharp knife for hunting or skin a kangaroo or whatever' (ts 153).
According to David Spencer Thorne, on one occasion Spencer Thorne got into an argument with children and stabbed the swimming pool with a knife. The deceased had intervened and taken the knife from him (ts 154). This was admitted by Spencer Thorne in evidence. He said that he had taken a knife from 'somewhere near home' on one occasion and had stabbed the swimming pool because he was not allowed in it (ts 195). However, Spencer Thorne said that it was not the deceased who had taken a knife from him, but his grandfather (ts 196).
The police showed Spencer Thorne photographs of knives. He identified knives as being similar to ones he had owned when the deceased was murdered (ts 200), but said the knives he was shown were not the ones he had owned (ts 201).
Spencer Thorne admitted in evidence that he had 'a little bit of a bad temper' (ts 203). His exhibition of 'bad temper' in court comprised telling the court he was 'going to get angry in minute' (ts 203) and 'his getting my angry' (ts 217). He had been expelled from school for bad behaviour.
Spencer Thorne had previously been dealt with in the Children's Court for numerous offences, including aggravated burglary and stealing.
Spencer Thorne denied in evidence that he had killed the deceased (ts 218). He also denied ever threatening to stab or kill anyone. Further, he denied having threatened to kill or stab either a police officer called Frank Farmer or the deceased (ts 1096 ‑ 1098).
The deceased was involved in a feud with her cousin, Denise Thorne, at the time of her death. Denise Thorne gave evidence that she and the deceased had not spoken for about two and a half years before her murder (ts 509). The disagreement between them concerned Denise's ex‑boyfriend.
Apart from being estranged, in the sense that they did not speak, there was evidence of three incidents over a period of two and a half years:
(a)An incident in Hill Street in late 2005 when Denise Thorne was assaulted by the deceased and Brenda Thorne (ts 548, 592).
(b)An incident at the Boddington hotel involving verbal abuse between Denise Thorne and the deceased, and a physical fight involving Brenda Thorne and Denise Thorne and her daughter. The encounter was unplanned (ts 511, 521, 590).
(c)An incident at the Crossman roadhouse involving verbal abuse. The encounter was unplanned. According to Bruce Green, the proprietor of the roadhouse, Denise Thorne 'never said a word, stood there with her head hanging down and the other … two or three women were abusing the hell out of her' (ts 1209).
Denise Thorne said in evidence that she had been at her mother's home in Ranford on the day of the deceased's murder. Denise Thorne gave evidence that she spent the night at her own home, although she left her home at about 10.30 pm to endeavour to borrow a cigarette lighter from a friend nearby. The friend lived near the deceased's home. On her evidence, she would have been in the vicinity of the deceased's home at the time of, or shortly before, the deceased was attacked.
David Spencer Thorne confirmed in evidence that the estrangement involved Denise Thorne 'getting jealous over a certain ‑ one of her ex‑partners' in relation to the deceased (ts 141). This was supported by Brenda Thorne's evidence (ts 227 ‑ 228). Brenda Thorne said there was a physical fight at a hotel involving herself and Denise Thorne about a month or two before the deceased's murder (ts 237). Spencer Thorne confirmed the estrangement (ts 209).
Denise Thorne smoked cannabis from time to time. She could become aggressive occasionally because she suffered from mood swings as a result of smoking the drug.
There was no evidence that the deceased was heard on occasions before her death apparently arguing with other family members. Ms Gelissen lived about 50 m from the deceased's home. She gave evidence that on occasions she had heard 'raised voices, loud noises, party noises' and had recognised Brenda Thorne's voice. She did not recall hearing the deceased's voice. She did, however, know that the deceased lived in the relevant block of units (ts 166 ‑ 167). On the evidence, Brenda Thorne had been living in the unit next door to the deceased for 'up to about a year' before the deceased's death (ts 222). Ms Gelissen did not give evidence that she knew this fact.
As to the six-pack of Jim Beam cans purchased by Mr Henson and said to comprise exhibits 20, 42E, 43 and 50, the appellant relied on a body of evidence to raise the possibility that exhibit 20 had come from some other source than Mr Henson and, by coincidence, had the same stampings on it. In particular, the appellant pointed to the following:
(a)The evidence of Mr Gock that there were 27,400 cases of 24 cans (a total of 657,600 cans) produced on 22 October 2007 bearing the date '22 OCT 08' (which is the 'best before' date) (ts 704).
(b)Of that production run, many of the cans would have been delivered to Perth (ts 709).
(c)Graham Roberts, the publican of the Premier hotel at Pinjarra, gave evidence that he had taken delivery of Jim Beam cans on 24 October 2007 and 29 November 2007. The November order comprised 4,800 cans (ts 1157).
(d)Senior Constable Frank Farmer, a police officer, gave evidence of numerous other places in the area where alcohol could be purchased (about eight in total) (ts 1187 ‑ 1189).
As to the staining of the Jim Beam cans located at the appellant's home, an alternative scenario was put to Dr Hallam by the appellant's trial counsel. The scenario was that the appellant had the deceased's DNA on his fingers as a result of foreplay earlier in the evening when they had sex. It was suggested that vaginal secretions on his fingers were transferred to the cans when he returned home. After he cut his fingers at home, he handled the cans and his DNA (from his blood) and the deceased's DNA (from her vaginal secretions) provided the mixed DNA profile discussed by Dr Hallam. According to Dr Hallam, this scenario was possible, but unlikely. She said 'Blood is such a good source of DNA that if this blood had come from [the appellant], I would expect at an absolute minimum to be able to detect the Y chromosome so would be able to detect male DNA. There was no evidence of male DNA and there was no evidence in the remaining test areas that would be consistent with the blood coming from [the appellant]' (ts 1138). Also, Dr Hallam was of the opinion that the scenario put to her was 'more difficult to envisage' in respect of exhibit 46 (the white Jim Beam can found on the kitchen bench that tested positive for human blood) (ts 1150).
The same scenario was put to Dr Hallam in relation to the deceased's DNA which was located on the Winfield Blue cigarette packet at the appellant's home.
The appellant called numerous witnesses in his defence. They gave evidence about his aversion to blood and also character evidence.
Jodie Marie Densham, the appellant's former de facto partner, gave evidence that the appellant was a good father to his daughters and was a 'very placid and gentle person'. She had never known him to be violent (ts 1212). Ms Densham also said that the appellant was not a person who showed his emotions (ts 1213). She was asked whether she had ever expressed her views to the appellant about the deceased being pregnant to him. She said she had not and had never sent an SMS to the appellant about the deceased's pregnancy (ts 1221). Ms Densham said she and the appellant separated in February 2006 (ts 1210).
Other defence witnesses who gave evidence about the appellant's good character, his honesty, and being a gentle person, included:
(a)Robert William Densham, Ms Densham's father, who spoke of the appellant's gentle and placid nature and his aversion to blood and harm (even to animals) (ts 1229).
(b)Wayne Harry English, who spoke as to the appellant's character (ts 1241) and said the appellant did not like the sight of blood (ts 1242).
Although a number of defence witnesses gave evidence as to the appellant's character, many had had only limited contact with him or their contact was confined to specific topics or time periods. For example:
(a)Ms Densham said that since her separation from the appellant their communications were focused on their daughters (ts 1217).
(b)Mr Densham had had only two visits with the appellant since his separation from Ms Densham (ts 1232).
(c)Christopher Dean Salmeri had not had a lot of contact with the appellant since his separation from Ms Densham (ts 1239).
(d)Mr English had had no in‑depth conversations and limited contact with the appellant (ts 1246, 1248).
(e)Sandra Louise Sherry had never seen the appellant different from the way he usually was, even after his separation from Ms Densham (ts 1258).
Appeal against conviction: grounds of appeal
There are three grounds of appeal against conviction, which read:
1.The learned trial judge erred in law by failing to direct the jury that in order to find the appellant guilty of either count on the indictment they had to be satisfied beyond reasonable doubt of any fact that was an indispensable link in the chain of reasoning towards a finding of guilt.
2.The learned trial judge erred in law by failing to identify for the jury those facts that were indispensable links in the chain of reasoning and were required to be proved beyond reasonable doubt.
3.The learned trial judge erred in law by failing to direct the jury that the weight to be given to expert testimony was exclusively a matter for them.
On 13 August 2009, Miller JA granted leave to appeal on these grounds.
It is convenient to deal with grounds 1 and 2 together.
Appeal against conviction: grounds 1 and 2: appellant's submissions
Counsel for the appellant submitted that a fundamental issue at trial was whether the appellant had an opportunity to commit the offence.
According to counsel, before the jury could return a verdict of guilty they had to be satisfied beyond reasonable doubt of two indispensable facts in a chain of reasoning. These facts were that:
(a)the appellant had the opportunity to inflict the injuries upon the deceased; and
(b)the appellant had returned to the deceased's home after 10.30 pm on 9 December 2007.
It was submitted that there was a body of evidence which related to the period between 10.30 pm and 11.30 pm on the evening in question. It was said that the most significant pieces of evidence were:
(a)Dr Margolius' opinion that it would have taken half an hour for the deceased to die after the infliction of the wounds.
(b)Mr Henson's evidence that he went to bed at about 10.30 pm.
(c)Ms Tink's evidence that:
(i)she heard crying or singing-type noises at the front of her property some time between about 10.35 pm and 10.50 pm; and
(ii)she made two '000' emergency telephone calls: the first at 11.12 pm and the second at 11.19 pm, the second call having been made after she saw the deceased stagger and fall into her front yard.
(d)Ms Gelissen's evidence that she heard someone call for help at 11.07 pm.
Counsel for the appellant referred to these extracts from the trial judge's summing up:
(a)[I]t is the prosecution which has the duty of proving every element of the charge and because each charge is a criminal one, the prosecution has a very high standard of proof to meet, which is proof beyond reasonable doubt.
Before you can return a true verdict of guilty against the [appellant] the prosecution must satisfy you beyond reasonable doubt that he is indeed guilty. You must be satisfied beyond reasonable doubt that the prosecution has proven each and every one of the facts, or the elements, which go to make up the particular charge. This does not mean that the prosecution has to prove beyond reasonable doubt each and every fact which is alleged by prosecution witnesses. In order to establish guilt all that needs to be proved beyond reasonable doubt is each of the elements of the charge against the [appellant] (ts 1272). (emphasis added)
(b)[A]n inference is simply a logical deduction or conclusion which arises from the proven facts. However, in a criminal trial proof of guilt is required beyond reasonable doubt and for this reason there are certain rules that you must follow when drawing inferences. Firstly, you must satisfy yourself that a proposed inference is a reasonable one. There is simply no room for guessing, speculation, conjecture or for looking for theories unsupported by the evidence. Secondly, before you draw an inference against the accused you must be satisfied it is the only inference or conclusion that can be drawn consistent with the proven facts.
It follows from those rules that in a circumstantial case you can only come to the finding that the [appellant] committed the alleged offence if you are satisfied that that is the only reasonable inference in all of the circumstances. I have also explained to you that you can only bring in a verdict of guilty if you are satisfied beyond reasonable doubt the state has proven each and every one of the elements of the particular charge. That does not mean that each and every fact or piece of evidence relied upon by the state must itself be proved beyond reasonable doubt. So the state doesn't have to prove that on a particular exhibit you can be satisfied beyond reasonable doubt that it was Stacey's DNA or it was Stacey's blood. It doesn't have to prove beyond reasonable doubt that it was the [appellant's] clothes that were burnt in the heater. Those are matters which collectively have to be looked at as a whole and on the basis of all of the evidence you decide where the only reasonable inference is that it was the [appellant] who killed Stacey Thorne and whether you can be satisfied beyond reasonable doubt that no other person could have killed Stacey Thorne. So you have to look at the whole of the evidence, the surrounding evidence, to decide that the only reasonable inference is that the accused is guilty.
If, however … there is any other reasonable explanation consistent with innocence then you would necessarily be left with a reasonable doubt and it would be your duty to acquit. In other words, before you can bring in a verdict of guilty the united force of all of the surrounding circumstances must exclude any reasonable inference consistent with innocence and satisfy you beyond reasonable doubt that the [appellant] is guilty (ts 1291 ‑ 1292). (emphasis added)
Counsel relied in particular on the passages I have emphasised.
It was submitted that although the prosecution did not have to prove each and every fact alleged to the standard of beyond reasonable doubt, the directions in these passages were wrong in law to the extent that they related to facts which were indispensable facts in a chain of reasoning towards an inference of guilt beyond reasonable doubt.
Counsel argued that as the question of opportunity was critical to the prosecution's case against the appellant, the trial judge should have directed that facts relating to this question were required to be proved beyond reasonable doubt.
Appeal against conviction: grounds 1 and 2: their merits
The critical issue at the trial was whether the appellant was responsible for the deceased's death.
The prosecution's case against the appellant was based, in essence, on circumstantial evidence.
As Gleeson CJ and Kiefel J noted in AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438, circumstantial evidence is sometimes spoken of as though it were inherently less compelling than direct evidence. Their Honours said, however:
Often, especially in identification cases, the truth is the opposite. Undisputed objective circumstances may be more reliable than direct testimony [27].
Where the prosecution relies upon circumstantial evidence, guilt should not only be a reasonable and rational inference, but should be the only reasonable and rational inference that could be drawn from the circumstances. See Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234, 243 (Dixon CJ); Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, 578 (Dawson J).
Circumstantial evidence must not be considered on a piecemeal basis. It must be evaluated in its entirety. See R v Hillier [2007] HCA 13; (2007) 228 CLR 618, where Gummow, Hayne and Crennan JJ said:
The case against Mr Hillier was a circumstantial case. It has often been said that a jury cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances (See, eg, Martin v Osborne (1936) 55 CLR 367 at 375; Plomp v The Queen (1963) 110 CLR 234 at 243 per Dixon CJ). It is of critical importance to recognise, however, that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence (Shepherd v The Queen (1990) 170 CLR 573 at 579 per Dawson J) [46].
In Shepherd, Dawson J noted that the inference which the jury may actually be asked to make in a case based on circumstantial evidence may simply be the accused's guilt (579). His Honour then qualified that general proposition by stating that in most, if not all, cases, the ultimate inference of guilt must be drawn from some intermediate fact, whether that intermediate factual conclusion is expressly identified or not (579). His Honour then made these observations about the proof of intermediate facts:
Proof of an intermediate fact will depend upon the evidence, usually a body of individual items of evidence, and it may itself be a matter of inference. More than one intermediate fact may be identifiable; indeed the number will depend to some extent upon how minutely the elements of the crime in question are dissected, bearing in mind that the ultimate burden which lies upon the prosecution is the proof of those elements. For example, with most crimes it is a necessary fact that the accused was present when the crime was committed. But it may be possible for a jury to conclude that the accused was guilty as a matter of inference beyond reasonable doubt from evidence of opportunity, capacity and motive without expressly identifying the intermediate fact that the accused was present when the crime was committed (579). (emphasis added)
See also Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521, 626 ‑ 627 (Deane J); Edwards (210) (Deane, Dawson & Gaudron JJ).
However, if an intermediate fact is an indispensable link in a chain of facts necessary to prove guilt, then the intermediate fact must be proved beyond reasonable doubt before the jury may conclude that the accused is guilty. See, in the context of lies, Edwards (210). In Shepherd, Dawson J said in relation to a trial judge's summing up about intermediate facts:
[I]t may sometimes be necessary or desirable to identify those intermediate facts which constitute indispensable links in a chain of reasoning towards an inference of guilt. Not every possible intermediate conclusion of fact will be of that character. If it is appropriate to identify an intermediate fact as indispensable it may well be appropriate to tell the jury that that fact must be found beyond reasonable doubt before the ultimate inference can be drawn. But where ‑ to use the metaphor referred to by Wigmore on Evidence, vol 9 (Chadbourn rev 1981), par 2497, pp 412 ‑ 414 ‑ the evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning. It should not be given in any event where it would be unnecessary or confusing to do so. It will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence (579).
See also Chamberlain No 2 (626 ‑ 627).
In the present case, there was a very powerful circumstantial case against the appellant.
Most of the circumstantial evidence went to, amongst other things, the issue of opportunity. But proof beyond reasonable doubt of an opportunity for the appellant to kill the deceased was, in the circumstances of the present case, an integral aspect of proof beyond reasonable doubt that he did, in fact, kill her.
There was this body of evidence as to the time when the deceased was attacked, and the opportunity for the appellant to have walked from his home to her home and carry out the attack:
(a)Dr Margolius said that the period between the infliction of the injuries and the time of death was 'perhaps less than half an hour' (ts 454). She agreed, however, with the trial judge's question 'you said … from the time of infliction of the injuries death was not immediate and at least half an hour' (ts 456). Also, Dr Margolius gave evidence that the deceased would have been unconscious for some time before her death, and that she had included this period in the 'half hour or so' (ts 456). These opinions involved, without doubt, estimates.
(b)Mr Henson said that he went to his room at about 10.30 pm (ts 373 ‑ 374). He played with his mobile telephone for a few minutes and then went to sleep. Before he went to sleep, and not long after going to his room, Mr Henson heard the back door open and close (ts 374).
(c)Ms Tink said that:
(i)she heard 'noises' on the night of the deceased's death (ts 173 ‑ 174);
(ii)she first heard these noises about 10 or 15 minutes after she persuaded her husband to go to bed: this, she said, was at 10.35 pm, based on their microwave clock (ts 174 ‑ 175);
(iii)the microwave clock was accurate to within five or six minutes (ts 174);
(iv)she first heard the noises between about 10.40 pm and 10.50 pm (ts 175);
(v)the noises were 'like singing or crying to [sic] calling out' (ts 172);
(vi)her dogs started barking, and she checked on them but found nothing amiss (ts 172);
(vii)soon afterwards, she heard the noises again, and then saw a person staggering on the footpath at the front of her property (ts 172);
(viii)she told her husband what she had seen and then called the '000' emergency number, this call being recorded at 11.12 pm (ts 182);
(ix)she then saw the person stagger and fall at the front of her property, and made another call to the '000' emergency number, this call being recorded at 11.19 pm (ts 182).
(d)Ms Gelissen said that at 11.07 pm she heard the deceased call out twice, 'help me, please, someone' (ts 164).
(e)The police officers arrived at about 11.30 pm and found the deceased, who was then dead, about 100 m from her home (ts 181).
(f)Acting Sergeant Spence said that the distance from the appellant's home to the deceased's home was only 350 m (ts 181).
It was reasonably open to the jury to be satisfied (including satisfied beyond reasonable doubt) on the basis of this evidence that the appellant had the opportunity to commit the offence.
Further, and in any event, the body of evidence as to the time the deceased was attacked, and the opportunity for the appellant to walk from his home to the deceased's home and carry out the attack, was supported by other circumstantial evidence which was probative of the appellant having been at the scene of the crime and, by inference, of opportunity and guilt. The other circumstantial evidence included:
(a)The white Jim Beam can located about 20 m from the boundary of the deceased's unit. It was across the road (ts 762). The appellant's fingerprints and DNA were on the can. There was powerful circumstantial evidence that the can in question was one of the cans bought by Mr Henson at the Pinjarra hotel on the evening of 9 December 2007. If so, the can could only have been deposited 20 m from the deceased's home after Mr Henson had returned to the appellant's home and upon the appellant returning to the deceased's home for a second time.
(b)The presence of the deceased's blood/DNA on the thongs worn by the appellant on the night the deceased was killed.
(c)The presence of the deceased's blood/DNA on Jim Beam cans in the appellant's refrigerator and on the cigarette packet on the back verandah of his home.
(d)The presence of the deceased's blood on the base of the Jim Beam can found on the kitchen bench in the appellant's home and the appellant's DNA on the mouth of that can.
(e)The location of the knife, with the deceased's blood/DNA, in a paddock in close proximity to an alternate and secluded route from the deceased's home to the appellant's home.
All of the circumstantial evidence which I have recounted, together with the evidence of the appellant's motive to kill the deceased, the absence of any evidence as to the appellant's whereabouts after about 10.30 pm on the night of the murder (apart from his out‑of‑court assertions to the police that he did not leave home again that night), the appellant's lies to the police about the clothing he was wearing earlier in the evening when he attended the Boddington hotel, the remnants of burnt clothing found in the wood‑fire heater in the appellant's home, and the non‑recovery of the clothes worn by the appellant that night, compels the conclusion that the only reasonable inference open is that the appellant had the opportunity to and did, in fact, kill the deceased. All of the circumstantial evidence I have mentioned is relevant directly to an inference of guilt. The individual items of evidence are properly to be characterised, in terms of Wigmore's metaphor, as strands in a cable relevant to proof beyond reasonable doubt that the appellant did, in fact, kill the deceased.
In the present case, it was not necessary or desirable for the trial judge to identify opportunity as an intermediate fact constituting an indispensable link in a chain of reasoning towards an inference of guilt. This was a case in which it was possible and appropriate for a jury to conclude that the appellant was guilty as a matter of inference, beyond reasonable doubt, from the evidence of motive, opportunity, and presence at the scene of the crime, and from the other evidence I have referred to, without expressly identifying opportunity as an intermediate fact.
The trial judge emphasised to the jury that they could not convict the appellant unless the prosecution proved his guilt beyond reasonable doubt. For example, his Honour's summing up included these directions:
(a)Before you can return a true verdict of guilty against the accused the prosecution must satisfy you beyond reasonable doubt that he is indeed guilty. You must be satisfied beyond reasonable doubt that the prosecution has proven each and every one of the facts, or the elements, which go to make up the particular charge. This does not mean that the prosecution has to prove beyond reasonable doubt each and every fact which is alleged by prosecution witnesses. In order to establish guilt all that needs to be proved beyond reasonable doubt is each of the elements of the charge against the accused.
The presumption of innocence also means that if the prosecution fails to bring sufficient, or if it leaves you with a reasonable doubt in your mind as to the guilt of the accused, then the only true verdict is not guilty. Another effect of the presumption of innocence is that the accused doesn't have to come along and prove anything. He doesn't have to prove that he is innocent. He is entitled to remain silent and still be acquitted if the prosecution fails to prove its case beyond reasonable doubt (ts 1272).
(b)Obviously, I need to explain to you the difference between wilful murder, murder and manslaughter. All three of these offences are homicides which involve the unlawful killing of one person by another, so the common elements of all three offences are, firstly, that the accused caused the death of the alleged victim and, secondly, that the killing was unlawful.
In this regard the law provides that any person who causes the death of another directly or indirectly by any means whatever is deemed to have killed that person. However, not only must the state prove beyond reasonable doubt that it was the accused who caused the death of the deceased, it must also prove beyond reasonable doubt that that killing was unlawful (ts 1274).
(c)Obviously, the state can only prove the offence of either wilful murder or murder by satisfying you beyond reasonable doubt as to what the accused had in his mind at the time of committing the act which caused the death. In the absence of an express admission by the accused that he intended to kill or intended to cause grievous bodily harm, such an intent can only be proved by way of inference from all of the surrounding circumstances.
I will explain to you shortly the rules that apply when you are asked to draw an inference as to the accused's intent. In essence, you can only find that the accused intended either to kill or to cause grievous bodily harm if you're satisfied that that is the only reasonable inference in all of the circumstances as you find them to be, so to summarise what I've said about the four possible verdicts in this case, if you're satisfied beyond reasonable doubt that the accused unlawfully killed Stacey Thorne while intending to cause her death, then he will be guilty of wilful murder (ts 1275).
(d)[W]hen you are asked to draw inferences in a criminal trial special rules apply. This is because of the burden that rests on the prosecution to prove its case beyond reasonable doubt. Accordingly, before you can draw any inference against the accused you must be satisfied that it is the only inference which can reasonably be drawn consistent with the proven facts. If you think that there may be some alternative inference consistent with innocence which is open on the proven facts, then you should not make the adverse inference against the accused. That is a simple rule of fairness which should be quite obvious to you when the burden of proof is beyond reasonable doubt (ts 1276).
(e)I come now to the evidence which is relevant to the question of intent. If you come to the conclusion you are satisfied beyond reasonable doubt that the accused killed Stacey Thorne you would then need to go on to consider whether or not he had a particular intent in his mind at the time.
Now, virtually all of the evidence I have summarised so far goes to the question of whether it was the accused who killed Stacey Thorne and I have not yet dealt with the evidence relevant to the question of intent. As you know, it is alleged that the accused killed Stacey Thorne either with intent to kill her, as alleged in count 1 of the indictment, or alternatively with intent to cause her grievous bodily harm as alleged in the second count in the indictment. If you get to the stage that you are satisfied beyond reasonable doubt the accused did kill Stacey Thorne then you will next need to consider whether you are satisfied beyond reasonable doubt that he had either of those alleged intents (ts 1315).
(f)Finally, I need to remind you that when determining whether or not you are satisfied beyond reasonable doubt that the accused killed Stacey Thorne you are obliged to consider the whole of the evidence, so you do not limit yourself to considering only those circumstances alleged in the prosecution case, you also take account of all of the circumstances raised by the defence case. In the end you must determine whether, on the basis of all of the circumstances as you find them to be, the only reasonable inference is that it was the accused who killed Stacey Thorne.
If you are not satisfied that that is the only inference from all of the evidence and that it is reasonably possible that someone else killed Stacey Thorne then your verdict will be not guilty. If, however, you are satisfied beyond reasonable doubt that it was the accused who killed Stacey Thorne then you will need to go on to consider what intent he might have had in his mind at that time. If you are satisfied beyond reasonable doubt and the only reasonable inference is that the accused intended to cause the death of Stacey Thorne then your verdict will be guilty of wilful murder. If, on the other hand, you consider that an alternative reasonable inference is that he intended to cause only grievous bodily harm then your verdict will be guilty of murder.
If you are not satisfied beyond reasonable doubt that he had either of those intentions then your verdict will be guilty of manslaughter (ts 1317 ‑ 1318).
In my opinion, there is no doubt, on the basis of these passages in the context of the trial judge's summing up as a whole, that the jury must have understood, as a matter of common sense and elementary logic, that they could not be satisfied beyond reasonable doubt that the appellant was guilty of wilful murder unless, relevantly, they were satisfied beyond reasonable doubt that he had the opportunity to and did, in fact, kill the deceased. In the circumstances, no further or other directions on these issues were necessary. In particular, it was unnecessary for his Honour to have directed the jury that facts relating to the question of opportunity or the appellant having returned to the deceased's home after 10.30 pm on the evening in question were required to be proved beyond reasonable doubt.
Grounds 1 and 2 fail.
Appeal against conviction: ground 3: appellant's submissions
The prosecution called several expert witnesses to prove a variety of circumstantial evidence. The experts included Dr Margolius and Dr Hallam. The appellant did not call any expert witnesses. Instead, counsel for the appellant put some alternative possibilities and theories to the experts with a view to explaining away otherwise incriminating evidence.
According to counsel for the appellant, two critical areas of evidence concerned:
(a)the time at which the wounds were inflicted upon the deceased; and
(b)how the deceased's blood and/or DNA came to be present on several objects.
It was submitted that Dr Margolius could not provide an exact time of death and she could not give a precise estimate of the time it would have taken the deceased to die after she had sustained the injuries.
Also, it was submitted that Dr Hallam, in response to a theory put to her on behalf of the appellant as to how DNA from the appellant's blood and DNA from the deceased's vaginal secretions came to be present on a Jim Beam can, said it was a possible, but unlikely, scenario.
Counsel for the appellant accepted that there is no rule of law that at every criminal trial in which opinion evidence is adduced the trial judge must give a direction that the weight to be given by the jury to expert evidence, whether contested or uncontested, is exclusively a matter for the jury, and the jury is not bound to accept the expert's opinion. See Middleton v The Queen [2000] WASCA 213 [49] (Anderson J, Kennedy & Wheeler JJ agreeing).
However, counsel argued that, in the particular circumstances of this case, where the expert opinion evidence was 'critical', it was essential to a fair trial for this direction to have been given.
Appeal against conviction: ground 3: its merits
The expertise of Dr Margolius and Dr Hallam concerned evidence in respect of which the jury would require expert assistance. That is, the opinions of the experts were necessary to enable the jury properly to appreciate and evaluate the evidence which the opinions addressed.
Although the jury were not bound to accept and act upon the evidence of Dr Margolius and Dr Hallam, their evidence was uncontested (that is, there was no expert evidence to the contrary) and the jury were not entitled capriciously to disregard it. See Hall v The Queen (1988) 36 A Crim R 368, 370 (Roden J); Hone v The State of Western Australia [2007] WASCA 283; (2007) 179 A Crim R 138 [124] (Miller JA, Steytler P relevantly agreeing & Wheeler JA agreeing); R v Klamo [2008] VSCA 75; (2008) 18 VR 644 [44] (Maxwell P, Vincent JA agreeing).
The jury were entitled to consider the evidence of Dr Margolius and Dr Hallam in the context of other relevant evidence, including:
(a)The deceased's blood/DNA on the appellant's thongs.
(b)The burnt clothing found in the wood-fire heater.
(c)The white Jim Beam can (exhibit 20) found near the deceased's home and its connection with the white Jim Beam cans purchased by Mr Henson.
(d)The appellant's motive.
The trial judge emphasised that the inferences (if any) to be drawn from the expert evidence, in combination with other evidence as to the surrounding circumstances, was a matter solely for the jury. He directed them, relevantly:
Although it is entirely a matter for you, the expert evidence in combination with the evidence of the surrounding circumstances would entitle you to draw the following inferences as the only reasonable inferences but, as I say, I am just simply trying to assist you. I am not suggesting these should be your findings of fact: firstly, that the staining on the six cans at the top of the fridge occurred at or about the same time; secondly, that the staining occurred some time after 9.30 pm given that can E belonged to the six pack brought home by Steve Henson; thirdly, that the accused had been drinking from the can found on the kitchen bench and that most probably that can had been in the fridge beforehand; fourthly, that all stains came about as a result of the accused handling the cans; fifthly, that all stains were human blood. This is so even though only one can had the confirmatory test for human blood. In that regard, it is hardly likely in all the circumstances that only one set of stains on one can would be human blood and all the rest are vegetable matter or some other such reactor to the presumptive blood test, and the sixth inference you may well draw as the only reasonable inference is that in handling the cans the accused transferred DNA material that had come from Stacey Thorne.
The critical issue for you to consider is whether the DNA material from Stacey Thorne was in her blood as distinct from some other source such as vaginal secretions, and probably the most obvious stain where that is critical is with the fingerprint stain on the bottom of the can on the kitchen bench which was made in blood and what was indeed human blood and from which Dr Hallam got Stacey Thorne's DNA.
As I say, the critical issue is whether the DNA material on the cans which matched with Stacey Thorne was in her blood as distinct from some other source such as vaginal secretions. In this regard there is a fairly compelling inference in all of the circumstances that the DNA profiles on the cans came about as a result of the accused handling them while he had Stacey Thorne's blood on one or more of his fingers.
However, the defence has suggested that there are other possible inferences consistent with the accused's innocence, and the scenario which has been put to Dr Hallam and which she says is possible is that the accused had Stacey Thorne's DNA on his fingers as a result of foreplay earlier in the evening, that he handled the cans after coming home, thus transferring the DNA from vaginal secretions to the cans, that he then cut his fingers and either washed the wounds or handled the cans while there was condensate on them; this resulted in his own blood from his fingers being transferred to the cans on top of the previously deposited vaginal secretions, so the proposition put is that the result for human blood could come from the accused's own blood, the result providing Stacey's DNA profile could come from the vaginal secretions with two separate handling of the cans in that way.
Ms Fordham put that hypothesis to Dr Hallam during cross examination. It is Dr Hallam's evidence that such a sequence of events is possible by way of explaining the DNA results. However, it would require lots of vaginal secretions to be deposited and for the blood from the cut finger to be very diluted. It is also Dr Hallam's evidence that it would be very unlikely that there would be enough blood to give a positive test for blood yet not provide a DNA profile of that blood. She finds it difficult to envisage a situation whereby that result would be obtained.
I now come to the cigarette packet and there is evidence of a similar nature concerning analysis of stains on the cigarette packet that was found on the back verandah which you may well think was the cigarette packet that the accused purchased at the hotel earlier that evening. The photographs of those stains are exhibit 93.5. According to Dr Hallam, there were four stains on the cigarette packet that gave positive reactions for blood, that being the presumptive test. However, only two of those stains provided DNA profiles and that is why there are only two results listed in table 10.
Stain B on the cigarette packet provided a mixed DNA profile from at least two individuals but the low quality of the profile meant that the results were unreliable. Stain C, on the other hand, provided a single DNA profile which matched that of Stacey Thorne. It is Dr Hallam's evidence that the chance of finding this DNA profile in stain C if it had come from someone other than and unrelated to Stacey Thorne is less than one in 10 billion.
Yet again, an obvious inference from the results of analysis is that stain C on the cigarette packet is Stacey Thorne's blood. However, the defence case is that there is an alternative inference available. As I understand the defence case, that alternative inference would be that Stacey's DNA was yet again transferred to the cigarette packet as a result of the accused having her vaginal secretions on his finger or fingers, and the further alternative, it may be that Stacey handled the cigarette packet while the accused was at her unit.
It is also submitted that the positive reaction for blood could be due to the accused's cut finger or could even have been a false positive. Although Dr Hallam, on my reading of the transcript, was not specifically cross examined about the cigarette packet, the effect of her evidence overall is that such a scenario is possible but very unlikely. You should also bear in mind that on the defence case there are a total of seven stains on the cans and cigarette packet which would have to have occurred in such unlikely ways. The chances of this happening coincidentally seven times is something you are entitled to take into account. In this regard, it is entirely a matter for you to decide whether the coincidence of that type of event occurring seven separate times is a reasonable possibility, thus providing an alternative reasonable explanation for the DNA and blood results from each stain (ts 1302 ‑ 1304).
Earlier in his summing up, the trial judge distinguished between the law and the facts. He directed the jury that although he was the judge of the law, they were the judges of the facts (ts 1271).
A little later, his Honour said:
You have heard all of the evidence and it's entirely for you to decide which of it you accept and which of it you reject. You might accept all of a witness's [sic] evidence or you might reject all of it or you might accept parts of it and reject the rest. That's entirely a matter for you, to assess the evidence and decide which evidence you accept and which evidence you reject (ts 1273).
I have no doubt that the jury would have understood his Honour's reference to 'the evidence' and a 'witness' evidence' in this passage to include expert evidence and an expert witness' evidence.
The trial judge noted the point explicitly in the course of discussing several aspects of the expert evidence.
His Honour said in relation to whether the jury should draw the inference that the knife located in the paddock was the murder weapon:
Although it is entirely a matter for you, I accept that if you accept the evidence of the blood tests and the DNA analysis, then the only reasonable inference is that that knife was indeed the murder weapon, but you must go through that process and see whether there might be some alternative explanations to the results from the knife and where it was found and if you think there is some alternative reasonable explanation, then you shouldn't draw the adverse inference that that was the murder weapon (ts 1277). (emphasis added)
His Honour also said in relation to Dr Hallam's calculations and explanations concerning the DNA evidence:
You also then have evidence of Dr Hallam's mathematical calculations of the chance that the DNA on that particular item came from some other individual in the human population. If you accept the evidence of Dr Hallam as to those matters, then those are circumstances which you can take into account in deciding whether or not you should draw the inference as the only reasonable inference that the DNA on a particular exhibit was indeed the DNA of either the accused or Stacey Thorne.
For example, with a number of exhibits where Dr Hallam's evidence was to the effect there was a less than one in 10 billion chance that the DNA on an exhibit was someone other than Stacey Thorne's or someone closely related to Stacey Thorne it is a matter for you, as I say, but you would probably have no difficulty in coming to the conclusion that the only reasonable inference is that was indeed Stacey Thorne's DNA because there is only a one in 10 billion chance essentially that it wasn't (ts 1283). (emphasis added)
His Honour said in the course of discussing the evidence that the stains on the appellant's thongs were the deceased's blood:
Although it is entirely a matter for you, it is open for you to conclude on the basis of that evidence that the stains on the thongs were indeed Stacey Thorne's blood. It is also open to you to accept the accused's admission that he had worn the thongs the previous night but before doing that, you would need to carefully consider why it was that they did not bear his DNA. In that regard, if you accept the evidence that they were found near the shower and that they were damp, then those facts may well be relevant and you may well infer that the thongs had been washed (ts 1301). (emphasis added)
Counsel for the appellant complained about this passage in the trial judge's summing up:
The other thing I would say about the DNA results: I would remind you of Dr Hallam's evidence that a small proportion of the DNA results were not of sufficient quality for her to draw any reliable conclusions from them. It is important that you don't go on a frolic of your own with this table of DNA results and come to your own conclusions. You must rely on Dr Hallam's expertise in determining what results are significant (ts 1283).
Counsel focused on the words 'you must rely on Dr Hallam's expertise in determining what results are significant'. According to counsel, there was a danger that his Honour was telling the jury that they had to rely on Dr Hallam's evidence.
There is no merit in this complaint. The trial judge repeatedly told the jury that fact‑finding, including fact‑finding on expert evidence, was a matter for them. In the impugned passage, his Honour was merely directing the jury not to speculate in relation to the DNA results; in particular, they should not endeavour to draw their own conclusions on the table of DNA results if those conclusions had no basis in the evidence adduced at the trial. It is readily apparent from his Honour's summing up as a whole that the jury would have understood that they were not bound to accept any evidence, including expert evidence, but they were not entitled to form their own views, contrary to the expert evidence, on technical, scientific or mathematical issues that required expert training or experience.
I am satisfied that the trial judge's directions in relation to that aspect of the defence which related to the expert evidence clearly conveyed to the jury that it was for them to consider the expert evidence in the light of the alternative possibilities and theories put to the experts by the appellant's trial counsel with a view to explaining away otherwise incriminating evidence. The jury would have been in no doubt that it was for them to determine the facts, including those facts that depended upon expert evidence.
Ground 3 fails.
Appeal against sentence: ground of appeal
The sole ground of appeal against sentence alleges that the trial judge erred in law by imposing a minimum non‑parole period that was manifestly excessive in light of the standard of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies on the scale of seriousness of crimes of that type and the appellant's personal circumstances.
On 13 August 2009, Miller JA ordered that the application for leave to appeal be referred to the hearing of the appeal.
Appeal against sentence: the relevant legislative scheme
On 1 August 2008, s 10 and s 19 of the Criminal Law Amendment (Homicide) Act 2008 (WA) (CLA (Homicide) Act) came into operation. The offence of wilful murder and the penalty of strict security life imprisonment were abolished. Also, the then existing offence of murder was repealed. A new offence of murder was created with accompanying changes to the penalty.
By s 279(4) of the Criminal Code, as currently enacted, an adult who is guilty of murder must be sentenced to life imprisonment, unless special circumstances apply.
By s 90 of the Sentencing Act 1995 (WA), as currently enacted, a court that sentences an offender to life imprisonment for murder must either set a non‑parole period of at least 10 years (s 90(1)(a)) or order that the offender must never be released (s 90(1)(b)).
Section 740 and cl 2(3) of sch 1 of the Criminal Code (being the transitional provisions applicable to the legislative amendments enacted by s 10 and s 19 of the CLA (Homicide Act)) require that a person convicted of, but not sentenced for, murder or wilful murder before the amendments came into operation, must be sentenced under s 279(4) ‑ (6) as inserted by the CLA (Homicide) Act, as if he or she had been convicted of murder under the new s 279(1) of the Criminal Code.
Accordingly, as the trial judge noted in his sentencing remarks (ts 27), notwithstanding that the appellant committed the offence in question on 9 December 2007, before the enactment of the CLA (Homicide) Act, the appellant was required to be sentenced in accordance with s 279(4) of the Criminal Code and s 90 of the Sentencing Act, as currently enacted.
Appeal against sentence: the appellant's submissions
Counsel for the appellant referred to a number of cases which, it was submitted, indicated the standards of sentencing customarily observed in relation to the fixing of a minimum non‑parole period for offences of this type. In particular, counsel referred to Stasinowsky v The State of Western Australia [2009] WASCA 20, Khoo v The Queen (Unreported, WASCA, Library No 960184, 2 April 1996), Williams v The Queen (1996) 17 WAR 17, Buckland v The Queen (Unreported, WASCA, Library No 980144, 3 April 1998), Hobby v The Queen (Unreported, WASCA, Library No 990013, 22 January 1999), Lauritsen v The Queen [2000] WASCA 203; (2000) 22 WAR 442, Alikhani v The Queen [2001] WASCA 55, Roberts v The Queen [2003] WASCA 237; (2003) 28 WAR 381, Vella v The State of Western Australia [2006] WASCA 177, Gamble v The State of Western Australia [2007] WASCA 120, Leyshon v The State of Western Australia [2007] WASCA 223, Meko v The Queen [2004] WASCA 159; (2004) 146 A Crim R 131, Teakle v The State of Western Australia [2007] WASCA 15; (2007) 33 WAR 188, Stapleton v The Queen [2002] WASCA 328; (2002) 136 A Crim R 65, Kenneally v The Queen (Unreported, WASCA, Library No 980284, 27 May 1998), Mitchell v The Queen (1998) 20 WAR 257 and MacKenzie v The Queen [2004] WASCA 146; (2004) 150 A Crim R 451.
It was submitted that the minimum non‑parole period of 25 years imposed by the trial judge was manifestly excessive in light of the standard of sentencing customarily observed with respect to the crime, as revealed by the cases which I have listed, the place which the appellant's criminal conduct occupies on the scale of seriousness of crimes of the type in question, and the appellant's personal circumstances.
According to counsel for the appellant, the minimum non‑parole period of 25 years was manifestly excessive for a case which did not involve multiple victims or multiple offences. Also, he argued that the period of premeditation by the appellant was 'not … particularly lengthy' and that a psychologist had assessed the appellant as being at a low risk of reoffending.
Appeal against sentence: the proper approach to sentencing under the new legislative scheme
It is necessary to consider the proper approach to sentencing under the new legislative scheme including the continuing relevance (if any) of sentencing dispositions under the previous legislative scheme.
Wilful murder was defined under the previous legislative scheme as, relevantly, unlawfully killing another, intending to cause his or her death or that of some other person.
Murder was defined under the previous legislative scheme as, relevantly, unlawfully killing another under any of the following circumstances:
(a)if the offender intended to do to the person killed or to some other person some 'grievous bodily harm' (it being immaterial that the offender did not intend to hurt the particular person who was killed);
(b)if death was caused by means of an act done in the prosecution of an unlawful purpose, which act was of such a nature as to be likely to endanger human life (it being immaterial that the offender did not intend to hurt any person);
(c)if the offender intended to do 'grievous bodily harm' to some person for the purpose of facilitating the commission of a crime which was such that the offender may be arrested without warrant, or for the purpose of facilitating the flight of an offender who had committed or attempted to commit any such crime;
(d)if death was caused by administering any stupefying or overpowering thing for either of the purposes set out in par (c) above;
(e)if death was caused by wilfully stopping the breath of any person for either of the purposes set out in par (c) above,
(it being immaterial, in the case of each of pars (c), (d) and (e), that the offender did not intend to cause death or did not know that death was likely to result).
At all material times, 'grievous bodily harm' has been defined in s 1(1) of the Criminal Code to mean 'any bodily injury of such a nature as to endanger, or be likely endanger life, or to cause, or be likely to cause, permanent injury to health'.
For the offence of wilful murder under the previous legislative scheme, the sentencing court was bound to impose either strict security life imprisonment or life imprisonment. For the offence of murder under the previous legislative scheme, the sentencing court was bound to impose life imprisonment.
The principal distinction between strict security life imprisonment and life imprisonment was the difference in the minimum period that the offender was required to be held in custody before being considered for release on parole. The sentencing court had to set a minimum term of at least 20 and not more than 30 years for an offender sentenced to strict security life imprisonment for wilful murder, unless it was bound to order that the offender be imprisoned for the whole of the offender's life. The court was bound to order that the offender be imprisoned for the whole of the offender's life if it was necessary to do so in order to meet the community's interest in punishment and deterrence. The sentencing court had to set a minimum term of at least 15 and not more than 19 years for an offender sentenced to life imprisonment for wilful murder. The sentencing court had to set a minimum term of at least 7 and not more than 14 years for an offender sentenced to life imprisonment for murder.
In Stasinowsky, Steytler P and McLure JA, in their joint reasons, undertook a detailed review of the relevant authorities and concluded that the approach taken by the Full Court in Lauritsen to determining the length of the non‑parole period for offenders sentenced to strict security life imprisonment had resulted in excess weight being given to the potential for rehabilitation in some cases. See Stasinowsky [68] ‑ [73].
Steytler P and McLure JA set out the considerations which in their view were especially relevant in considering the length of the non‑parole period where strict security life imprisonment was imposed. The considerations enumerated by their Honours were these [86]:
(a)In the worst category of cases (those in which, taking into account only the circumstances of the offence and any aggravating factors, the community's interest in punishment and deterrence demand a whole of life sentence), a sentence of strict security life imprisonment for the whole of the offender's life must be ordered.
(b)In cases that do not fall within (a) (those that do not fall into the worst category), the court must set a non-parole period of between 20 and 30 years.
(c)When setting the non-parole period, it must not be overlooked that parole will only be granted, if at all, at the will of the executive.
(d)The non-parole period is the minimum time that a judge determines justice requires that the offender must serve having regard to the circumstances of the case.
(e)In setting the non-parole period all relevant sentencing factors will be considered, including the circumstances of the offence, all aggravating and mitigating factors and the offender's antecedents. The court will endeavour to achieve the recognised sentencing objectives, including retribution, general deterrence and personal deterrence.
(f)Although some of the factors to be considered at this stage (such as remorse and age) bear on an assessment of the prospect of rehabilitation, that prospect will not be the primary focus.
(g)When considering age, either youth or more advanced age may be material. Were it not for the fact that s 91(4) requires that, at the stage of deciding whether or not to impose a whole of life sentence, the court is only to take into account the circumstances of the commission of the offence and any aggravating factors, youth might have been thought to have its greatest weight, as a sentencing consideration, at that point. That is because, the younger the offender, the longer a life sentence will be. However, youth is also material for other reasons. It reflects upon the maturity of the offender and also upon his or her prospects of rehabilitation. Imprisonment may also be harder for a young person than it is for an older person. For an older offender, age may be relevant for the reason that the anticipated life span of the offender might be such that, absent a shorter non-parole period, that person can have no realistic expectation of life after prison. It may also be relevant to the threat likely to be posed by the offender on release.
(h)No factor necessarily takes precedence. Also, we have not endeavoured to make an exhaustive list of potentially relevant factors. The exercise is one of a discretionary nature, taking into account all relevant circumstances.
(i)When the issue is being considered at an appellate level, the court must not lose sight of the fact that appellate courts are required to respect the discretionary nature of a sentencing judge's decision. It cannot substitute its own opinion for that of the sentencing judge merely because it would have exercised the discretion in a different way: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]; Dinsdale [58].
See also Fraser v The State of Western Australia [2009] WASCA 23 [15] (McLure JA, Steytler P & Miller JA agreeing).
Section 279 of the Criminal Code, as currently enacted, which created the new offence of murder, reads, relevantly:
(1)If a person unlawfully kills another person and ‑
(a)the person intends to cause the death of the person killed or another person; or
(b)the person intends to cause a bodily injury of such a nature as to endanger, or be likely to endanger, the life of the person killed or another person; or
(c)the death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life,
the person is guilty of murder.
Alternative offence: s. 280, 281, 283, 284, 290 or 291 or Road Traffic Act 1974 s. 59.
(2)For the purposes of subsection (1)(a) and (b), it is immaterial that the person did not intend to hurt the person killed.
(3)For the purposes of subsection (1)(c), it is immaterial that the person did not intend to hurt any person.
(4)A person, other than a child, who is guilty of murder must be sentenced to life imprisonment unless ‑
(a)that sentence would be clearly unjust given the circumstances of the offence and the person; and
(b)the person is unlikely to be a threat to the safety of the community when released from imprisonment,
in which case the person is liable to imprisonment for 20 years.
…
As I have mentioned, for the offence of murder under the new legislative scheme, where the sentencing court imposes life imprisonment it must either set a non‑parole period of at least 10 years or order that the offender must never be released. See s 90(1) of the Sentencing Act. The 10‑year period is the statutory minimum where life imprisonment is imposed. The legislation does not specify a maximum term of years.
These observations may be made about the new offence of murder:
(a)Section 279(1)(a) reflects the definition of wilful murder under the previous legislative scheme.
(b)Section 279(1)(b) reflects, in part, that limb of the definition of murder under the previous legislative scheme which referred to the offender intending to do to the person killed or to some other person some 'grievous bodily harm'. However, s 279(1)(b) has been circumscribed. It embodies only that part of the definition of 'grievous bodily harm' in s 1(1) of the Criminal Code which refers to 'any bodily injury of such a nature as to endanger, or be likely to endanger life'. It does not embody that part of the definition which refers to 'any bodily injury of such a nature as … to cause, or be likely to cause, permanent injury to health'.
(c)Section 279(1)(c) reflects that part of the definition of murder under the previous legislative scheme which referred to the death being caused by means of an act done in the prosecution of an unlawful purpose, which act was of such a nature as to be likely to endanger human life.
In Atherden v The State of Western Australia [2010] WASCA 33, Wheeler JA (McLure P & Owen JA agreeing) said in relation to the new offence of murder:
It follows from the creation of a new offence, which may be committed by a person who has either an intention to kill or an intention to cause bodily injury of such a nature as to endanger life, with the same penalty range available in relation to offenders holding either intention, that it will not invariably be the case that killing with an intention to cause bodily injury of such a nature as to endanger life must be regarded, for sentencing purposes, as necessarily less serious than killing with an intention to cause death. Examples of cases in which an intention to cause bodily injury of such a nature as to endanger life may be more seriously regarded than an intention to cause death can be imagined. For example, the case of a revenge attack, where a person deliberately wishes to cause bodily injury of such a nature as to endanger life, but not cause death, in order that the victim may experience a lengthy period of suffering, may be regarded as more serious than killing with an intention to cause death, if the latter type of killing could reasonably be regarded as a 'mercy killing', or took place in the heat of the moment, after significant provocation. Further, in many cases, it may be difficult to discern precisely what the offender's intention was, so that the offender will fall to be sentenced largely for his or her conduct, rather than for his or her intention.
Broadly, it may be accepted that the value which the community places on human life is such that it is likely that, other things being equal, killing with an intention to cause death will be more seriously regarded. However, to state that is to say no more than that the offender's intention is one of a range of circumstances which will be relevant to determining an appropriate sentence [30] ‑ [31].
I agree with those comments.
Parliament enacted the new offence of murder (including the accompanying sentencing framework) in response to the final report of the Law Reform Commission of Western Australia on the Review of the Law of Homicide, Project 97, September 2007.
A court may, at common law and apart from any reliance on such provisions as s 19 of the Interpretation Act 1984 (WA), have regard to reports of law reform bodies to ascertain Parliament's intention in enacting a statutory provision. See CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408; Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85, 112 ‑ 113.
The Commission, in its final report, recommended, relevantly, that a court sentencing an offender to life imprisonment for the new offence of murder must fix a minimum non‑parole period of 10 years, instead of the minimum non‑parole period of 7 years under the previous legislative scheme for murder. Its rationale was as follows:
The mental element of murder is currently an intention to cause grievous bodily harm ‑ an intention to cause an injury of such a nature as to be likely to either endanger life or cause permanent injury to health. The Commission has recommended that an intention to cause a permanent injury should not be sufficient to establish the offence of murder. Therefore the lowest level of culpability has been excluded from the definition of murder. Further, by abolishing mandatory life imprisonment, some cases that would have previously received the lowest minimum term may now be dealt with by a finite sentence or other penalty. Therefore, the Commission has concluded that it would be appropriate to increase the lower limit for the minimum term to 10 years (316).
Parliament accepted the recommendations in this passage and implemented them in the new legislative scheme.
The Commission, in its final report, recommended against increasing the upper limit of 30 years for the minimum non‑parole period under the previous legislative scheme (316). This recommendation was rejected by the Parliament. As I have mentioned, there is no upper limit for the minimum term that the sentencing court may set where an offender is sentenced to life imprisonment for the new offence of murder.
The Attorney General, the Hon JA McGinty, in his second reading speech on the Bill which, upon enactment, became the CLA (Homicide Act), said, relevantly:
New offence and penalty for murder: Western Australia is the only state in Australia that currently has separate offences for wilful murder and murder. As recommended by the Law Reform Commission, this bill will consolidate the crime of wilful murder into the crime of murder. As highlighted by the Law Reform Commission in its report, there are many factors that affect the seriousness of a murder. It is not necessarily the case that murders committed with an intention to kill are the most serious crimes. Further, it is often difficult to distinguish between whether a person had an intention to kill someone or an intention to do them grievous bodily harm.
…
The bill will also consolidate and simplify the sentencing regime for murder, and will give courts the ability to impose tougher sentences on murderers. Under the proposed new laws, the court will have a full range of sentencing options available to it when dealing with all murderers … In keeping with the government's tough‑on‑crime policy, the new sentencing regime for murder is likely to lead to tougher sentences for murderers that are more in line with community expectations in ensuring that the punishment matches the seriousness of their crime. The consolidated crime of murder will now carry a presumptive penalty of life imprisonment with a minimum non‑parole period of 10 years and no maximum. Courts will also be able to impose a whole‑of‑life sentence upon all murderers. Such sentences are currently only available when a person is guilty of wilful murder …
The proposed changes to the law will significantly increase the power of judges to set non‑parole periods that are commensurate with serious murders. At the same time, the bill recognises that there may be cases of murder for which it would be unjust to impose a sentence of life imprisonment because of the circumstances of the offence and the offender and because the offender was not likely to be a threat to the community when released.
(See Western Australia, Parliamentary Debates, Legislative Assembly, 19 March 2008, pp 1209 ‑ 1210.)
A non‑parole period is the minimum period of imprisonment that justice requires the offender to serve. It mitigates the offender's punishment in favour of rehabilitation through conditional freedom after imprisonment for the minimum period. See Power v The Queen [1974] HCA 26; (1974) 131 CLR 623, 628 ‑ 629; Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367, 367; Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372, 396; Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525, 531.
Several observations may be made in relation to the determination of the non‑parole period where an offender is to be sentenced to life imprisonment for the new offence of murder and the sentencing court has decided to proceed under s 90(1)(a) of the Sentencing Act and fix a minimum period (instead of proceeding under s 90(1)(b) and ordering that the offender must never be released).
First, the considerations which the sentencing court must take into account in setting the non‑parole period are all relevant sentencing factors, including the circumstances of the offence, all aggravating and mitigating factors and the offender's personal antecedents.
Secondly, the non‑parole period must be set by reference to achieving or satisfying all relevant sentencing objectives, including punishment, retribution, person deterrence and general deterrence.
Thirdly, sentencing dispositions under the previous legislative scheme will generally be of some assistance in determining the length of the non-parole period for the new offence of murder where the sentencing court has decided to impose life imprisonment and set a minimum period under s 90(1)(a) of the Sentencing Act. It is essential, however, to bear in mind the following:
(a)The increase in the statutory minimum period from 7 to 10 years was made in the context of eliminating from the definition of murder, the unlawful killing of another person where the offender (merely) intends to cause bodily injury of such a nature as to cause, or be likely to cause, permanent injury to the health of the person killed or another person. See [163] and [167] above.
(b)The strict ranges of available non‑parole periods based on the distinctions under the previous legislative scheme between wilful murder and murder, and between wilful murder carrying strict security life imprisonment and wilful murder carrying (merely) life imprisonment, have been abolished. These strict ranges were not always appropriate to the facts and circumstances of a particular offender and his or her offending. The proper exercise of the sentencing discretion is no longer constrained by the rigidity of the previous legislative scheme (including the sentencing framework).
(c)The comments of Wheeler JA in Atherden [30] ‑ [31].
Fourthly, the offender's intention in relation to the particular killing is a relevant fact or circumstance (invariably, if not always, a very significant matter) to be considered together with all the other relevant facts and circumstances of the offending and the offender in determining the appropriate non‑parole period.
Fifthly, the removal of the demarcation between wilful murder and murder, and the abolition of the strict ranges of available non‑parole periods under the previous legislative scheme, may result in some increase in the non‑parole period for offending that would formerly have attracted a non‑parole period at or very close to the upper limit of a previously applicable range.
Appeal against sentence: its merits
The trial judge identified numerous features which placed the appellant's offending towards the upper end of the range of seriousness for wilful murders.
These features were:
(a)The deceased was very vulnerable (ts 28).
(b)The appellant had taken advantage of the deceased's trust to enter her home (ts 28).
(c)The deceased had no way of defending herself once the appellant commenced attacking her with the knife (ts 28).
(d)The deceased was cornered in her bedroom and had no means of escape (ts 28).
(e)The attack was unprovoked (ts 28).
(f)There were 21 separate stab wounds which demonstrated that it was 'a very savage and determined attack over a significant period of time' (ts 28).
(g)Some of the stab wounds were inflicted after the deceased had fallen to the floor (ts 28).
(h)The appellant left the deceased to bleed to death in her bedroom: she did not die immediately (ts 28).
(i)The deceased must have suffered agony during her last 20 - 30 minutes while she staggered out of her home and down the street, seeking help (ts 28).
(j)Notwithstanding the appellant's intoxication with alcohol, the offence was not spontaneous: it was a premeditated murder, the appellant having waited until his housemates had gone to bed before returning to the deceased's house.
(k)The route taken by the appellant on his return from the deceased's house after killing her and his subsequent conduct in disposing of various incriminating items of evidence revealed that he had his 'wits about [him]', and was acting coolly and rationally at the time (ts 29).
(l)The appellant killed the deceased to 'extinguish the potential life' of his unborn child so that he 'would not suffer the inconvenience or embarrassment of her birth' (ts 29).
(m)The shallowness of the appellant's motive, when compared to the monstrous lengths to which he went to achieve this result, was the true measure of the enormity of his crime (ts 29).
(n)The appellant's lack of remorse was underscored by the defences he ran at trial, including his attempts to blame the deceased's death on two of her relatives and the cross‑examination to which he subjected one of these relatives, Spencer Thorne, who was her 13-year-old nephew.
The trial judge noted the appellant's personal circumstances (ts 25 ‑ 26).
The appellant was aged 34 years at the time of sentencing. He had no relevant prior convictions. As I have mentioned, the appellant had previously been in a de facto relationship, which produced two daughters. He had been a good father to them. Numerous character referees spoke of the appellant's previous good reputation, and gentle and placid nature. He had a good and stable work history.
The trial judge identified some other factors that were relevant to the sentencing outcome. The appellant's increasing consumption of alcohol had been a factor in the breakdown of his de facto relationship. It had also affected his work performance. The appellant had suffered from depression and had been referred by his general medical practitioner to a psychologist. He had continued to receive counselling until shortly before he killed the deceased. A psychological report indicated that although the appellant had shown no sadness or grief at the deceased's death, he may in fact be an emotionally repressed person. More significantly, the psychologist assessed the appellant as being at a low risk of any future violence towards others.
The trial judge said that under the previous legislative scheme the appellant's offending would have attracted strict security life imprisonment with a minimum period in the range of 20 to 30 years (ts 29). He concluded that under the new legislative scheme the minimum term which justice required that the appellant should serve, having regard to all the circumstances of the case, was 25 years (ts 30).
In my opinion, the minimum non‑parole period imposed by the trial judge was not manifestly excessive. The features of the appellant's offending, as noted by his Honour and as summarised at [178] above, undoubtedly justified his Honour's characterisation of the crime as towards the upper end of the range of seriousness.
The most serious aggravating factor in the appellant's offending was the deliberate killing of the unborn child. In any event, the sentencing dispositions in Stasinowsky (24 years) and Fraser (27 years), which were upheld by this court, demonstrate that a minimum non‑parole period in the order of 25 years or more will not, of itself, be manifestly excessive for a murder involving (only) one victim.
Although the psychologist expressed the opinion that the appellant was at a low risk of relevant re‑offending, his refusal to admit his guilt precludes a reliable assessment of this prospect.
Despite the appellant's period of premeditation being not particularly lengthy, the circumstances of his crime were dreadful. It was committed in a calculated and savage manner and for a shallow and appalling motive. The trial judge correctly recognised that little weight could be afforded to the appellant's personal antecedents. The appellant's demonstrable lack of remorse underscored this finding.
An examination of the minimum non‑parole period of 25 years in the context of the sentencing framework under the new legislative scheme, the customary standards of sentencing revealed by comparable cases under the previous legislative scheme (in particular, Stasinowsky and Fraser), the objective seriousness of the offending, and the appellant's
personal circumstances, does not indicate that the trial judge's sentencing disposition was plainly unreasonable or unjust.
The result of the appeals
I would dismiss the appeal against conviction.
Leave to appeal against sentence should be granted, but the appeal should be dismissed.
JENKINS J: I agree with Buss JA.
30
39
3