(The Honourable Justice Nicholson, The Honourable Justice Parker and The Honourable Justice Livesey)
2 November 2020
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE
Appeal against conviction.
On Easter Sunday, 16 April 2017, the appellant took his wife to the Veale Gardens in the South Parklands of Adelaide. His wife was largely confined to a wheelchair. Around sunset, she and the wheelchair fell into one of the ponds in Veale Gardens. Despite following her into the pond, the appellant later told police that he could not save his wife. She drowned.
The appellant was charged with his wife’s murder. Following a trial conducted before a Judge without a jury, the appellant was found guilty of her murder.
In this Court the appellant appeals against his conviction on the following two grounds:
1. The verdict cannot be supported having regard to the evidence.
2. The trial Judge had no or insufficient regard to aspects of the evidence which tended to cast doubt on the prosecution case as to the applicant’s intention.
Held, per Livesey and Parker JJ (Nicholson J dissenting), appeal dismissed.
1. The appellant has not shown that there was any miscarriage of justice requiring appellate intervention.
2. It was open to the trial Judge to be satisfied beyond reasonable doubt that the appellant was guilty of his wife’s murder.
3. Observations made regarding the role of the appeal court when reviewing the evidence led and findings made in a circumstantial evidence case following a trial by judge alone.
4. Observations made as to whether it is necessary to review video and audio evidence of records of an accused’s police interviews led at the trial.
Held, per Nicholson J (dissenting), allowing the appeal on ground 1:
1. The evidence did not exclude the inference that accidental drowning was a reasonable possibility.
2. The appeal should be allowed, the verdict of guilty of murder quashed and a verdict of not guilty entered.
3. Observations made regarding the role of the appeal court when reviewing the evidence led and findings made in a circumstantial evidence case following a trial by judge alone.
4. Observations made as to whether it is necessary to review video and audio evidence of records of an accused’s police interviews led at the trial.
Held, per Nicholson J (Parker and Livesey JJ agreeing), dismissing ground 2:
1. This ground, as argued, was expanded to incorporate criticism of the adequacy of the reasons provided by the trial Judge, as well as errors of law and fact of a kind which were said to give rise to a miscarriage of justice.
2. None of the suggested errors has been established, the reasons…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Dansie v The Queen [2020] SASCFC 103
Case
[2020] SASCFC 103
Decision Date
CaseChat Overview and Summary
The appeal concerned the conviction of the appellant for the murder of his wife. The prosecution's case was circumstantial, alleging that the appellant deliberately pushed his wife into a pond with the intention that she drown. The appellant maintained that his wife's entry into the water was accidental.
The legal issues before the Court of Appeal included whether the conviction was unreasonable or unsupported by the evidence, requiring the court to consider all the evidence in accordance with High Court authority. Additionally, the court was asked to determine if the trial judge provided adequate reasons for their decision, and whether the judge erred in specific respects that might have led to a miscarriage of justice or an error of law. The court also considered whether the judge had failed to properly consider certain aspects of the evidence.
The Court of Appeal noted that much of the primary factual evidence was not disputed, with the contest largely revolving around the weight to be given to intermediate findings and the inferences to be drawn. The prosecution presented a case based on a series of intermediate conclusions, including that the appellant's relationship with his wife had deteriorated, that she had become a financial burden, and that he had displayed a callous attitude towards her needs. The prosecution argued that the appellant's accounts of the incident and his rescue attempts were implausible and unreliable, and that his delay in calling for emergency services was indicative of intent. Furthermore, the prosecution highlighted the appellant's lack of distress, the unlikelihood of accidental entry into the pond, and the appellant's potential financial and relationship motives. The trial judge had rejected the possibility of a heart attack prior to entering the pond, and this conclusion was not challenged on appeal.
The Court of Appeal ultimately dismissed the appeal, finding that the conviction was not unreasonable or unsupported by the evidence. The court was satisfied that the trial judge had provided adequate reasons for their decision and had not erred in the respects asserted by the appellant.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
On the basis of the written submissions of the parties and the manner in which their oral submissions developed during the hearing of the appeal, the issues to be considered on appeal are as follows.(i)Whether or not the conviction is unreasonable or cannot be supported by the evidence, thus invoking this Court’s consideration of all of the evidence in accordance with the requirements established by the High Court in cases such as M v The Queen,[7] Libke v The Queen,[8] SKA v The Queen[9] and, where a trial by judge alone is concerned, Filippou v The Queen.[10](ii)Whether or not the Judge provided adequate reasons.(iii)Whether or not the Judge erred in either of the respects asserted in particulars 1.1 or 1.2. Whilst these bear on (i) and (ii) above, they also should be treated as standalone grounds such that, if either is made out, the question of whether or not there has been a miscarriage of justice[11] will arise.(iv)Whether or not the Judge erred as asserted in particular 1.3. Whilst this bears on (i) above, it also should be treated as a standalone ground such that, if it is made out the question of whether or not there has been an error of law[12] will arise. (v)Whether or not the Judge has failed to properly consider any of the aspects of the evidence identified in particulars 2.1 to 2.7 in which case, as well as bearing on (i) and (ii) above, the question of miscarriage of justice will arise.[7] [1994] HCA 63; (1994) 181 CLR 487.[8] [2007] HCA 30; (2007) 230 CLR 559.[9] [2011] HCA 13; (2011) 243 CLR 400.[10] [2015] HCA 29; (2015) 256 CLR 47.[11] Paragraph (c) of subsection 158(1) of the Criminal Procedure Act 1921 (SA) and subject to any application of the proviso in subsection 158(2).[12] Paragraph (b) of subsection 158(1) of the Criminal Procedure Act 1921 (SA) and subject to any application of the proviso in subsection 158(2).Background and summary of the prosecution case In these reasons, unless otherwise indicated, and subject to the extent indicated, the factual matters canvassed, including any findings by the Judge, have not been challenged by the appellant on appeal. As the Judge noted, there was little dispute concerning the primary facts and much of the evidence was uncontested. The contest largely concerned the weight to be placed on various intermediate findings and what, if any, inferences were properly available to be drawn from the evidence as a whole, and, of course, ultimately, whether or not guilt was to be inferred beyond reasonable doubt. As at April 2017, the appellant was 68 and Mrs Dansie was 67. They had married in 1973 and had a son, Grant, born in 1981. By all accounts, they had a happy marriage and were each professionally productive and financially comfortable. This changed, at least in the latter two respects, in 1995. Mrs Dansie suffered a stroke and, notwithstanding a lengthy period of rehabilitation, she was left with permanent physical and cognitive disabilities. Mrs Dansie could not return to work and the appellant assumed the role as her full time carer although he continued to work part time in various occupations. Mrs Dansie’s contributory superannuation policy provided her with a defined benefits pension for life.
Evidence
Evidence Before The Court
His Honour made the following findings.[20][20] R v Dansie [2019] SASC 215 at [51]-[52].In my view, the CCTV footage supports the evidence of Mr Day[21] as to the physical capabilities of Mrs Dansie. The footage establishes that Mrs Dansie, with assistance, was capable of weight bearing on her legs for a short period of time. It also establishes that she was capable of using her right arm and hand to assist with her balance. The video also establishes that [the appellant] was capable of lifting Mrs Dansie, with some assistance from her, from the wheelchair into the standing position.[21] Mr Day has a Certificate III in Aged Care and had worked as a carer at Mrs Dansie’s nursing home for 14 years. He had regularly provided daily care to Mrs Dansie, R v Dansie [2019] SASC 215 at [38].I make the following findings:• Mrs Dansie, as a result of her stroke in 1995, was left with permanent residual weakness on her left side.• Mrs Dansie also suffered permanent short-term memory loss.• Over the years, Mrs Dansie’s mobility became more restricted, including restrictions in all limbs but more pronounced on the left side.• After her hospital admission in 2015, Mrs Dansie’s mobility worsened and she became wheelchair bound.• Over the years, there was slight deterioration in Mrs Dansie’s already compromised cognitive abilities.• As at April 2017, Mrs Dansie was unable to stand unassisted; with assistance she could weight bear for a short period of time.• Mrs Dansie retained some strength to hold herself upright by holding onto a fixture, for example, a car door.• Mrs Dansie’s strength in her arms had reduced in the months before her death but she retained some capacity to assist her carers with transfers and support, to an extent, her weight.• Mrs Dansie had impaired dexterity and required assistance with hygiene tasks; she lacked insight into her need for care.• Mrs Dansie could not manage sustained or repeated movement of her limbs due to fatigue and weakness.• Mrs Dansie’s flexibility was severely restricted but she maintained reasonable balance when sitting in her wheelchair.• [The appellant] was physically capable of lifting Mrs Dansie from the seated position to the standing position with some assistance from Mrs Dansie.(Footnote supplied)Evidence of Professor Byard – Forensic Pathologist ([53] to [69]) The Judge dealt with the forensic pathologist’s evidence at length and concluded that death by drowning had been established which is not challenged by the appellant.[22] Mrs Dansie was found by Professor Byard to be 174 cm tall and 117 kilograms in weight; she was borderline morbidly obese. [22] Mrs Dansie was found on examination to have significant narrowing with atherosclerosis of one of her coronary arteries. On the basis of Professor Byard’s evidence, the Judge rejected “even as a reasonable possibility” the suggestion that Mrs Dansie may have had a heart attack prior to entering the pond. This conclusion has not been challenged. The possibility, based on Professor Byard’s evidence, that Mrs Dansie may have suffered a heart attack once she was in the pond as a result of shock, although there was no pathological evidence of this, was acknowledged. However, given that the prosecution’s case was confined to the appellant having deliberately pushed her into the pond with intent, whether or not any such heart attack contributed to death did not interfere with the substantial cause of death analysis relied on by the prosecution.The layout and topography of the Gardens and the pond ([70]-[93])
Decision
Reasons for decision
NICHOLSON J
The prosecution adduced a substantial body of evidence in support of its circumstantial case. The prosecution contended that the following intermediate conclusions of fact arose from that body of evidence and that, taken in combination, they proved beyond reasonable doubt that the appellant pushed Mrs Dansie into the water intending her to drown.(i)The relationship between the appellant and Mrs Dansie as at April 2017 had deteriorated from the appellant’s perspective and that from at least 2016 onwards the appellant was no longer a caring and devoted husband.(ii)Mrs Dansie had become more of a financial burden and this might worsen as a result of the Public Advocate pursuing matters in the South Australian Civil and Administrative Tribunal (SACAT).(iii)For at least the 18 months or so that Mrs Dansie had been in full time care prior to her death, the appellant demonstrated a callous and uncaring attitude towards her physical needs and improvements to her quality of life.(iv)For various reasons, including the content of the accounts given by the appellant about what occurred that night and his manner of giving them, the objective evidence taken from the scene and about the scene, and other aspects of the appellant’s behaviour, the appellant’s account of accidental entry into the pond was inherently implausible and unreliable.(v)For various reasons, including the content of the accounts given by the appellant about what occurred that night and his manner of giving them, the objective evidence taken from the scene and about the scene, and other aspects of the appellant’s behaviour, the appellant’s account of his attempts to rescue Mrs Dansie was inherently implausible and unreliable. The prosecution argued that this was “reflective of a lack of credit in the [police] interview”. It was also contended that the fact that the appellant did not get Mrs Dansie out of the pond when he could have was a fact probative of specific intent. (vi)The appellant’s explanation for his delay (of up to 20 minutes) in making the emergency (“000”) call was implausible; the delay was explainable on the basis that the appellant waited sufficiently long so that the first responders would not be able to revive Mrs Dansie.(vii)In the six hours or so after the death, whilst in the presence of and when he spoke to the first responders and to members of the police, the appellant demonstrated a remarkable lack of distress and concern for his wife.(viii)The objective evidence taken from and concerning the scene of the drowning strongly indicated that entry into the water by accident was highly unlikely.(ix)After arrival at the Gardens, the appellant had taken off his Armani watch and left it together with his dentures and his wallet containing $400 cash in the front console inside the parked car while he took Mrs Dansie around the Gardens.(x)Also in the car was a change of clothes for the appellant but not for Mrs Dansie.(xi)The appellant said that he was safety conscious and that on previous visits, he had checked the depth of other ponds and a creek with a stick which he found to be about one foot deep.(xii)However, the appellant took Mrs Dansie to the only pond with a depth of one metre or more and in which it was possible to accidentally drown and which was in a secluded location.(xiii)For various reasons the appellant would be financially better off if Mrs Dansie died and, as such, had a financial motive.(xiv)For various reasons the appellant had what was described as a relationship motive, in particular, the appellant was keen to pursue other romantic or sexual interests.(xv)Some seven months prior to the visit to the Gardens, the appellant had taken out a funeral expenses policy for $15,000 which would respond in case of the death of Mrs Dansie by accident and had made a number of internet searches enquiring about the cost of funerals notwithstanding that Mrs Dansie appeared to be in good health and was unlikely to die by accident.The Judge’s reasons: the judgment structure and summary of its content