Dansie v The Queen
[2020] SASCFC 103
•2 November 2020
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
DANSIE v THE QUEEN
[2020] SASCFC 103
Judgment of The Court of Criminal Appeal
(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.
Held, per Livesey J (Parker J agreeing, Nicholson J dissenting), dismissing ground 1:
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 provided were adequate, and no miscarriage of justice has been established in connection with these issues.
Criminal Procedure Act 1921 (SA) s 158; Juries Act 1927 (SA) s 7, s 11, s 12, s 13; Criminal Appeal Act 1907 (UK) s 4; Criminal Procedure Act 1986 (NSW) s 133, referred to.
M v The Queen (1994) 181 CLR 487; Libke v The Queen (2007) 230 CLR 559; SKA v The Queen (2011) 243 CLR 400; Filippou v The Queen (2015) 256 CLR 47; Peacock v The King (1911) 13 CLR 619; Plomp v The Queen (1963) 110 CLR 234; Martin v Osborne (1936) 55 CLR 367; Knight v The Queen (1992) 175 CLR 495; R v Micallef (2002) 136 A Crim R 127; R v Hillier (2007) 228 CLR 618; Shepherd v The Queen (1990) 170 CLR 573; Chamberlain v The Queen (No 2) (1984) 153 CLR 521; R v Ball [1911] AC 47; De Gruchy v The Queen (2002) 211 CLR 85; R v Georgiev (2001) 119 A Crim R 363; Zoneff v The Queen (2000) CLR 234; Edwards v The Queen (1993) 178 CLR 193; Bristow v The Queen [2020] SASCFC 91; Pell v The Queen [2020] HCA 12; Wilson v The Queen (1970) 123 CLR 334; Farquharson v The Queen (2012) 36 VR 538; R v Schulz (2016) 126 SASR 476; Murray v The Queen (2002) 211 CLR 193; Douglass v The Queen (2012) 86 ALJR 1086; R v Van Beelan (1973) 4 SASR 353; R v Gjergji (2016) 126 SASR 106; DL v The Queen (2018) 266 CLR 1; R v Becirovic [2017] SASCFC 156; Coughlan v The Queen (2020) 94 ALJR 455; Tiwary v R [2012] NSWCCA 193; Jones v The Queen (1997) 191 CLR 439; Whitehorn v The Queen (1983) 152 CLR 657; Fox v Percy (2003) 214 CLR 118; Liberato v The Queen (1985) 159 CLR 507; Briginshaw v Briginshaw (1938) 60 CLR 336; ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; Chidiac v The Queen (1991) 171 CLR 432; Fennell v The Queen (2019) 93 ALJR 1219; Fleming v The Queen (1998) 197 CLR 250; Hocking v Bell (1945) 71 CLR 430; Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; Morris v The Queen (1987) 163 CLR 454; Nguyen v The Queen (2020) 94 ALJR 686; Nudd v The Queen (2006) 80 ALJR 614; Question of Law Reserved (No 1 of 2018) (2018) 275 A Crim R 400; R v Baden-Clay (2016) 258 CLR 308; R v Cable (1947) 47 SR(NSW) 183; R v Klamo (2008) 18 VR 644; Ross v The King (1922) 30 CLR 246; Warren v Coombes (1979) 142 CLR 531; Weiss v The Queen (2005) 224 CLR 300; Western Australia v Rayney (2013) 46 WAR 1, considered.
DANSIE v THE QUEEN
[2020] SASCFC 103Court of Criminal Appeal: Nicholson, Parker and Livesey JJ
NICHOLSON J.
Introduction
On Easter Sunday, 16 April 2017, the appellant, Peter Rex Dansie, took his wife, Helen Dansie, to visit the Veale Gardens in the South Parklands of Adelaide (the Gardens). Mrs Dansie suffered from longstanding mobility restrictions and cognitive deficits resulting from a stroke in 1995. She had been in full time care in a nursing home for the previous 18 months or so and was wheelchair dependent.
Shortly after 6.00 pm, around sunset, Mr and Mrs Dansie were alone close to the northern edge of one of a number of the ponds in the gardens, identified as Rock Pool 7 and referred to during the police interviews, the evidence at trial, in the trial judgment and in these reasons as “the pond”.
Mrs Dansie was in her wheelchair but not strapped in;[1] she and the wheelchair entered the water and Mrs Dansie drowned. The appellant was the only witness. On 20 December 2019, a Judge of this Court, after conducting a trial without a jury, found the appellant to be guilty of murder.[2]
[1] The wheelchair was one supplied by the nursing home and did not have a seatbelt.
[2] R v Dansie [2019] SASC 215.
Appeal grounds
Apart from certain admissions by the appellant in the accounts given by him in various recorded interviews, the prosecution case was wholly circumstantial. The appellant relies on the following two grounds of appeal.
1.The verdict cannot be supported having regard to the evidence.
Particulars
1.1 The learned trial judge (‘the judge’) erred in finding that the prosecution had established motives for the applicant to kill the deceased.
1.2 Further or in the alternative, the judge erred in finding that those motives were sufficient to enable the inference to be drawn that the applicant had formed an intention to kill the deceased.
1.3 The judge’s finding (at [402]) that it was ‘highly unlikely that Mrs Dansie drowned accidentally in the pond’:
1.3.1is based on the judge’s assessment of the credibility of the applicant in his interviews with the police and the judge’s conclusions as to the implausibility or inadequacy of the applicant’s account rather than on prosecution evidence proving that the drowning was not accidental.
1.3.2indicates that the judge has impermissibly placed an onus on the applicant to demonstrate that the drowning was an accident.
2.In his analysis of the evidence in the case the 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.
Particulars
2.1 The applicant’s attitude to the financial matters raised by the prosecution had to be assessed against the background of:
2.1.1the many years of litigation in the SACAT and its predecessor in which the applicant was the subject of criticism about his care of his wife by the opposing parties to the litigation, Mr Grant Dansie and Ms Giorgio.
2.1.2the applicant’s overall financial position which was that he and his wife jointly owned a property at Waterfall Gully as well as two freehold properties in the south east of South Australia.
2.2 The applicant’s insistence on explaining the SACAT proceedings to the police during the search of his premises in circumstances where, on the prosecution case, he had just completed the premeditated plan to kill his wife so as to avoid the continued expense and inconvenience of the SACAT proceedings.
2.3 The applicant’s total cooperation with the police over a period of 16 hours following his wife’s death and the lack of any defensiveness in his dealings with police.
2.4 The absence of a prepared, premeditated explanation to the police about what happened at the pond.
2.5 The absence of feigned emotion following the death of his wife.
2.6 The absence of any indication of malice or ill-will towards his wife.
2.7 The potential effect on the applicant’s demeanour following the death of his wife of the fact that she had suffered a life threatening stroke 22 years previously and had lived with a significant disability since that time.
Prior to the hearing of the appeal, a Judge of this Court granted permission to appeal with respect to ground 1 and referred ground 2 for the permission question to be dealt with at the same time as the appeal. I would grant permission to appeal on ground 2. For the reasons that follow, I would allow the appeal. I would quash the conviction for murder and order that a verdict of not guilty be entered. I make the following preliminary observations concerning the two grounds of appeal.
The common form appeal grounds, as applicable in this State, are as provided for in section 158 of the Criminal Procedure Act 1921 (SA) (the CPA). Subsections (1) to (3) are in these terms.
(1)The Full Court, on any such appeal against conviction, will only allow the appeal if it thinks that—
(a) the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence; or
(b) the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law; or
(c) on any ground there was a miscarriage of justice.
(2)The Full Court may, notwithstanding that it is of the opinion that the point raised in an appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
(3)Subject to the special provisions of this Act, the Full Court will, if it allows an appeal against conviction, quash the conviction and either direct a judgment and verdict of acquittal to be entered or direct a new trial.
The chapeau to appeal ground 1 invokes the ground of appeal available under subsection 158(1)(a) of the CPA, that is, that the verdict is unreasonable or cannot be supported having regard to the evidence. However, by particulars 1.1, 1.2 and 1.3, the appellant asserts specific errors by the Judge, as to the making of two posited findings (particulars 1.1 and 1.2) and as to the Judge’s reasoning process leading to a third finding (particular 1.3).
By appeal ground 2, the appellant complains that the Judge paid no or insufficient regard to seven particularised aspects of the evidence which the appellant submitted cast doubt on the prosecution case that the appellant intended to drown his wife. The contention is one of improper reasoning in the sense of a failure to give appropriate consideration to particular aspects of the evidence and defence submissions. However, the appellant, in his submissions, also complains of inadequate reasons. Further, the particulars in 2.1 to 2.7 can also be understood as particulars of appeal ground 1 (unreasonable verdict).
Senior counsel for the appellant[3] commenced his oral submissions with the observation that the criminal law does not easily tolerate binary approaches to the problems it has to solve. Counsel submitted that the prosecution and the Judge had pursued a binary approach in this case: did Mrs Dansie die by accident or by murder? Counsel submitted that in characterising the matter in this way there is a risk, manifested in this case, that the tribunal of fact will be diverted from addressing the correct question – has the prosecution proved beyond reasonable doubt that Mrs Dansie was murdered by the appellant? A failure to focus on the correct question can lead to a failure to properly examine all of the evidence. It was the Judge’s focus on this binary proposition throughout his Honour’s reasons that underpinned the appellant’s two grounds of appeal. I make the following observations with respect to this overarching complaint.
[3] The same senior counsel who appeared at trial appeared on appeal.
First, the focus of the criminal law at the most fundamental level is quintessentially binary – has the prosecution proved that the offence charged was committed by the offender charged or has it failed to do so. This is the fundamental and only fundamental question to be determined. But that does not deny, where a particular case permits, that the issue before the court can be characterised at a more basic binary level provided that the fundamental binary task is adhered to.
The appellant was consistent in his records of interview, adduced in the trial, that immediately prior to the incident he and Mrs Dansie had decided to leave the Gardens and that at the time the wheelchair entered the water he was holding the handles and attempting to push the wheelchair away. However, he could not explain how or why the wheelchair and Mrs Dansie thereupon entered the water. According to the appellant, whilst his actions of pushing, insofar as they were causal, were deliberate, the outcome was not intended; it was entirely accidental. As such, the ultimate factual dispute before the Judge was reduced to the question of whether or not the appellant’s actions of deliberately pushing the wheelchair were performed with the intention of pushing Mrs Dansie into the water in order for her to drown. This remained, on appeal, the fundamental issue dividing the parties.
The Judge, at the beginning of his judgment and before he had discussed any issues of law or fact,[4] summarised the case before him in these terms.
The prosecution alleges that [the appellant], for financial and relationship motives, murdered his wife by pushing her into the pond and deliberately drowning her. [the appellant], in his interviews with the police, stated that her death was accidental and that he attempted to save Mrs Dansie from drowning in the pond.
The issue at trial was whether the prosecution could prove that Mrs Dansie was murdered thus excluding accidental drowning as a reasonable possibility.
Defence counsel, in giving a brief statement of the issues in contention,[5] immediately following the prosecutor’s opening, said this.
The issue in the trial is going to be whether the death of Mrs Dansie was indeed homicide or accident. The defence case will be there is insufficient evidence to prove beyond reasonable doubt this was murder.
This was consistent with the prosecution opening.
[4] R v Dansie [2019] SASC 215 at [2]-[3].
[5] Criminal Procedure Act 1921 (SA), section 136.
No other person was in the vicinity at the time. The prosecution alleged and set out to prove that Mrs Dansie entered the water and drowned because the appellant deliberately pushed the wheelchair into the water, intending her to drown. The prosecution eschewed a case based on accidental entry with the appellant seizing the opportunity to jump in and drown Mrs Dansie under the guise of trying to save her.
The prosecution did not allege that the appellant had engaged in an unlawful and dangerous act manslaughter, nor was there any basis for such an allegation. There were in fact only the two alternatives, as opened on by the prosecution, Mrs Dansie in the wheelchair entered the water by accident or the appellant deliberately pushed her in.
As a consequence, the actus reus for murder, that is, the appellant’s act said to have caused[6] death, as alleged by the prosecution, was the act of pushing the wheelchair into the water and was, in effect, conceded. Whilst the prosecution still had to prove this element to the Judge’s satisfaction, the focus of the contest throughout the trial was whether the prosecution had proved the essential element of specific intent, that is, whether at the time the appellant pushed Mrs Dansie in he did so deliberately intending she should drown.
[6] In the sense of being a substantial cause of death.
My second observation is that, in these circumstances, it was quite understandable for the Judge to reduce the reason for Mrs Dansie’s death to the binary proposition of murder or accident – there was no third alternative. However, it does not necessarily follow that his Honour reached his verdict by reasoning to a preference for one explanation rather than the other or by failing to examine evidence relevant to reasonable doubt as to murder. It will be necessary to analyse the Judge’s reasoning and structuring of his judgment in order to determine whether or not, his Honour was and remained mindful of the correct question and standard of proof and conducted such examination of the evidence and submissions as he did with those requirements as his touchstone.
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.
In 2005, the Public Advocate was appointed Mrs Dansie’s guardian on a limited basis jointly with the appellant. The joint guardianship ceased in 2009 at which time the appellant became sole carer. Following hospitalisation for an illness, Mrs Dansie went into a nursing home for respite care in September 2015.
Further agreed background was summarised by the Judge in the following terms.[13]
[13] R v Dansie [2019] SASC 215 at [28]-[32].
In November 2015, the Public Advocate and [the appellant] were again appointed joint guardians. [The appellant] wanted her to return to the Waterfall Gully residence. The Public Advocate considered that the premises were unsuitable. The dispute was to be determined in the South Australian Civil and Administrative Tribunal (SACAT). In September 2016, [the appellant] conceded that Mrs Dansie should stay at the Nursing Home. Mrs Dansie’s status at the Nursing Home then changed from being in respite care to becoming a permanent resident. This change had financial ramifications for [the appellant].
For reasons not fully explained, [the appellant] and his son Grant became estranged not long after Mrs Dansie returned home after completing her rehabilitation in 1996. In 2000, Grant left home while in his final year at school. After finishing school, Grant studied at Griffith University in Brisbane and then in Copenhagen. Since 2001, he has lived overseas and currently lives in Norway. Grant always attempted to maintain a loving and caring relationship with his mother despite that, after her stroke in 1995, she was a “different person”.
Grant considered that [the appellant] deliberately obstructed him from having access to, and contact with, his mother. He also became concerned that [the appellant] was not providing Mrs Dansie with adequate or appropriate care. Grant was not able to ascertain how his mother’s finances were organised. Ms Ginny Giorgio, a neighbour and friend of Mrs Dansie, had similar concerns. It appears that [the appellant], from 1995, controlled Mrs Dansie’s finances. [The appellant] always denied suggestions that he did not appropriately care for his wife or that he did not look after her finances properly.
The relevance of the evidence, whether the allegations be right or wrong, is that the concerns of Grant and Ms Giorgio led to a number of contested applications before the Guardianship Board (later the SACAT) commencing in December 2005. The applications and decisions are summarised in Exhibit P39. I discuss the relevance of the applications later in these reasons. By way of agreed background, I note the following:
• On 9 December 2005, the Guardianship Board ordered that the Public Advocate be appointed “limited guardian” for Mrs Dansie in relation to whom Mrs Dansie had contact. Grant’s application for an administration order was dismissed. [The appellant] continued to look after the finances without supervision.
• On 24 October 2007, [the appellant] was formally appointed administrator; this required him to file a yearly financial report of Mrs Dansie’s finances.
• On 14 May 2009, the Office of the Public Advocate ceased acting as a limited guardian for Mrs Dansie.
• Mrs Dansie inherited $46,686.00 following the death of an uncle. After deducting approximately $7,000 (being a deficit in her accounts), [the appellant] invested the remaining amount in the home.
• Between 2010 and 2014, the financial examiner at the Public Trustee examined the financial reports filed by [the appellant] and found them to be satisfactory.
• On 20 November 2015, SACAT appointed [the appellant] and the Public Advocate (represented by David Cripps) as joint guardians for Mrs Dansie. The SACAT also made a finding that Mrs Dansie had a “mental incapacity”.
• Between January 2016 through to June 2016, the Public Advocate and [the appellant] were in dispute as to whether Mrs Dansie should return to live at the Waterfall Gully residence. The Public Advocate had concerns about the suitability of the premises.
• On 20 June 2016, the Public Advocate applied to review the Guardianship Order as the joint guardians were “unable to act jointly” about the suitability of the premises.
• On 5 September 2016, the Public Advocate withdrew the application for sole guardianship as [the appellant] had agreed that Mrs Dansie should stay at the Nursing Home rather than reside at the Waterfall Gully residence.
• On 1 March 2017, Suzanne Rozman replaced David Cripps as the Public Advocate.
• On 6 March 2017, Ms Rozman raised with [the appellant] the possibility of a review of the administration order and an investigation into Mrs Dansie’s finances.
• On 27 March 2017, Grant Dansie and Ms Giorgio filed applications to review the appointment of [the appellant] as administrator and joint guardian. The application was listed for hearing in July 2017.
In general terms, at the time of Mrs Dansie’s death, [the appellant] remained in sole control of Mrs Dansie’s finances and was a joint guardian with the Public Advocate; applications to review both matters were before the SACAT. I deal in more detail, later in these reasons, with the Public Advocate’s contact with [the appellant] leading up to the death of Mrs Dansie.
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
In this section, because the structure of the trial judgment received some attention during submissions on appeal, I have retained the Judge’s headings, subheadings and sub-subheadings.[14] The Judge’s reasons were structured as follows.
Overview (paragraphs [1] to [3])[15]
[14] Whilst the Judge used bold, italics bold and italics for his Honour’s three levels of headings, in order to not interfere unduly with the structure of my judgment, I have used, in this section, italics bold, italics and underlined italics.
[15] Paragraph references refer to the trial judgment. They have been added by me and did not form part of his Honour’s headings.
The Judge briefly described the drowning incident in neutral terms and characterised the issue at trial as “whether the prosecution could prove … [murder] thus excluding accidental drowning as a reasonable possibility”.
General overview of evidence (paragraphs [4] to [8])
The Judge identified three broad categories of evidence relied on by the prosecution, being evidence tending to prove: improbability of drowning by accident; motive; and conduct consistent with and probative of murder rather than accident. The Judge referred to the defence submission that the evidence was not sufficient to exclude accident as a reasonable possibility.
Legal elements of murder (paragraphs [9] to [12])
Under this heading, the Judge outlined in conventional terms the elements of the offence of murder and the fundamental requirements concerning the presumption of innocence and the prosecution’s burden of proof.
The Judge noted that the prosecution had confined its case to the appellant having deliberately pushed Mrs Dansie into the water such that if it failed to prove the specific intent required for murder as at the time Mrs Dansie entered the water, its case would fail.
There is no challenge to the Judge’s directions of law under this heading.
Circumstantial evidence ([13] to [21])
The Judge provided a lengthy direction on the proper approach to deciding a case based solely on circumstantial evidence with reference to standard authorities.[16] The Judge concluded this discussion with the following.[17]
While a circumstantial case is not to be considered piecemeal it is important to bear in mind inferences, explanations and submissions put forward by an accused in relation to individual items of circumstantial evidence. To put that another way, resolution of the case depends upon my assessment of all the evidence and that includes, of course, not just inferences in favour of the prosecution but inferences, explanations and submissions put forward on behalf of the accused.
Thus, the question is whether on all of the evidence in the case the prosecution has proved the guilt of [the appellant] beyond a reasonable doubt; that not only should his guilt be a rational inference, but that it should be the only rational inference that the circumstances enable me to draw.
(Emphasis in original)
There is no challenge to the Judge’s directions of law under this heading.
[16] Peacock v The King [1911] HCA 66; (1911) 13 CLR 619 at 634 (Griffith CJ) and 661 (O’Connor J), Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234 at 242 (Dixon CJ) and 252 (Menzies J), Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367 at 375 (Dixon J), Knight v The Queen [1992] HCA 56; (1992) 175 CLR 495 at 502 (Mason CJ, Dawson and Toohey JJ), R v Micallef [2002] NSWCCA 480; (2002) 136 A Crim R 127 at [42] (Dunford J), R v Hillier [2007] HCA 13; (2007) 228 CLR 618 at [48] (Gummow, Hayne and Crennan JJ) and Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573 at 590-591 (McHugh J) and Chamberlain v The Queen (No 2) (1984) 153 CLR 521 at 535.
[17] R v Dansie [2019] SASC 215 at [20]-[21].
Motive ([22] to [23])
The Judge provided conventional directions as to the potential role of motive as a piece of circumstantial evidence bearing on intention with reference to standard authorities.[18] Again, there is no challenge to these directions of law.
[18] R v Ball [1911] AC 47 at 68, De Gruchy v The Queen [2002] HCA 33; (2002) 211 CLR 85 at [53] and [57] (Kirby J), R v Georgiev [2001] VSCA 18; (2001) 119 A Crim R 363 at [78] (Ormiston JA) and Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234 at 242 (Dixon CJ).
Election not to give evidence ([24])
The Judge’s direction under this heading was in conventional terms and is not challenged.
General background ([25] to [35])
The matters under this heading have been summarised earlier.
Mrs Dansie’s physical and mental condition ([36] to [52])
The Judge opened his lengthy consideration of this topic with the following general observation that has not been challenged.[19]
Generally, there was little dispute about Mrs Dansie’s physical and mental condition. However, it is necessary for me to make findings about this aspect, particularly her condition as at April 2017.
[19] R v Dansie [2019] SASC 215 at [36].
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])
The discussion under this heading is essentially descriptive and was based on tendered photographs and plans, evidence from a number of police officers as to their observations of the area and measurements they took of various topographical features, and one of the police interviews with the appellant which took place in the Gardens and at the pond and was video recorded[23] albeit, during the night with artificial lighting.
[23] Exhibit P19; the transcript is exhibit P22.
The Judge also had the advantage of two views at the Gardens and the pond during daylight hours which assisted his Honour in understanding the evidence. This Court was not invited to and did not undertake a view.
The Judge’s descriptions and findings recorded under this heading have not been challenged. In the following summary, I have not been comprehensive but have endeavoured to set out some of the more significant descriptions and findings by his Honour to assist in understanding other aspects of his Honour’s reasoning.
The pond is roughly circular. The longest part of the pond runs approximately east-west[24] for about six metres. In the north-south direction it is approximately five metres.
[24] That is, parallel to and just south of South Terrace, Adelaide, which is, in effect, the northern boundary of the Gardens.
The southern edge of the pond nestles into a rocky mound and “access to the pond is, practically speaking, only possible from the northern edge”. There is a sealed walking path that runs approximately east-west on the northern side of the pond. The area between that path and the northern edge of the pond is grassed. It is common ground that Mrs Dansie’s wheelchair entered the water from the accessible northern edge of the pond. To gain access to the pond from the north requires one to leave the sealed path and walk across the grassed area for about 10 metres; traversing at first a gentle incline for about four to five metres and then a gentle decline for a similar distance to the pond edge.[25]
[25] R v Dansie [2019] SASC 215 at [75]; later in the judgment, at [90], the Judge described the initial gentle incline as: “the ground slopes gently up for about six metres”.
The pond is at its deepest near the middle; approximately 1.1 to 1.15 metres. The depth varies throughout but near the northern edge it is consistently approximately 1 metre deep. Whilst it is a little shallower at the southern edge, “exiting the pond in that vicinity was not possible”. The base of the pond was solid concrete with silt and mud (not thick) covering it.
Detective Brevet Sergeant Newbury investigated the depths of other rock pools in the Gardens and observed as follows.[26]
[26] R v Dansie [2019] SASC 215 at [80].
• The creek was less than knee-deep; he thought about 30 cm deep.
• Rock Pool 1 is exposed from all sides. It could be seen from Sir Lewis Cohen Drive. It varied from knee-deep to waist-deep.[27]
• Rock Pool 2 is two pools. The northern one is 10 cm deep. The southern one is deeper but completely surrounded by rocks. It was not possible to move a wheelchair close to the water without lifting it over the rocks.
• Between Rock Pool 2 and the conservatory (as marked on Exhibit P4) is a very shallow rock pool (not numbered); it is approximately 10 to 20 cm in depth.
• Rock Pool 6 is built into the hillside. It is surrounded by boulders that prevent wheelchair access to the water’s edge.
• Rock Pool 7, the pond, has a safety fence on the high side (southern side). There are no barriers on the northern edge of the pond. It can be accessed as seen in the photographs in Exhibit P6.
• Rock Pool 9 is very shallow, possibly 10 cm deep. The water’s edge could be accessed by wheelchair.
• There is a rock pool between the Adelaide Pavilion and the tram stop as shown in Exhibit P4. It is of similar depth to Rock Pool 1. Low vegetation circles it and it is adjacent to a road leading to the parking areas for the Pavilion.
(Footnote in original)
[27] Detective Brevet Sergeant Newbury is five feet 11 inches tall.
In this section, the Judge also made findings after viewing another video taken that night showing the body of Mrs Dansie floating in the pond face down and the police divers removing her body from the pond.[28] The Judge recorded his observations and findings based on this footage.[29] I have viewed the footage; the following observations and findings by the Judge have not been challenged and were open to his Honour.
• Initially the fountain was still operating and water was being projected from near the top of the rocks on the southern edge and landing towards the northern end of the pond.
• At approximately one minute and 26 seconds, the rocks identified as A, B and C can be clearly seen.[30]
• At approximately one minute and 50 seconds, Mrs Dansie’s body is adjacent to, but partially to the east, of Rock C. The water is lapping over the edge of Rock C and the rock immediately to the east of Rock C due to the action of the fountain.
• The fountain, when the body was removed from the pond, was no longer operating.
• At one minute and 30 seconds, the water level is overlapping the edge of Rock C and to a lesser extent the rock immediately to the east of Rock C. While there were two police divers in the pond, which would raise the water level, it must be remembered that Mr Dansie, who weighed 130 kg at the time, stated he had been in the pond attempting to save Mrs Dansie.
• At two minutes and 18 seconds, Mrs Dansie’s body was rotated by the police divers and placed on a stretcher. The rotation was performed easily.
• At two minutes and 30 seconds, Mrs Dansie’s body was removed from the pond over the top of Rock C. This action required the least amount of lifting due to the water being, on the edge at least, at the same level as Rock C.
(Footnote supplied)
[28] Exhibit P16.
[29] R v Dansie [2019] SASC 215 at [85].
[30] I interpolate here that there were a number of rocks adjacent to each other and forming the northern edge of the pond but with their top surface out of the water. Three were identified in evidence, by reference to photographs, as A, B and C. The top surface of each rock is, in the main, higher than the water surface. Whilst the surfaces are smoothish and broadly parallel to the surrounding ground and can be walked on and along, they are not flat as is a paving stone. I have arrived at this description from my review of the photographs in evidence.
The evidence disclosed that the appellant was between 182 and 185 cms tall such that a water depth of 1.1 metres “would reach just above his stomach but comfortably below his shoulders”.[31]
[31] R v Dansie [2019] SASC 215 at [86].
One of the rocks specifically referred to in the evidence was identified as Rock B. Rock B was on and formed part of the northern edge and its top face was out of the water. The appellant, in his records of interview, said that it was on this rock that he had placed or parked the wheelchair so that Mrs Dansie could watch for ducks in the pond. According to the appellant, it was as he was trying to manoeuvre the wheelchair from Rock B when leaving that the wheelchair entered the water. The Judge summarised the evidence concerning Rock B as follows.[32]
Rock B was approximately 1600 mm long[33] and approximately 800 mm at its widest point (in an approximate north-south direction). No measurements were taken of Rock B that enabled a profile to be drawn. However, Rock B is not flat.
(Footnote supplied)
[32] R v Dansie [2019] SASC 215 at [90].
[33] In the east-west direction, that is, running along the edge of the pond.
I interpolate here that the topography of Rock B assumed some significance to the question before the Court concerning the practicality of and common sense in stopping and placing Mrs Dansie’s wheelchair on Rock B, on the edge of the pond, rather than on the immediately adjacent grassed area. A more detailed topographical description of Rock B was given by Sergeant Mark Fulcher whose evidence was accepted by the Judge.
Q.Have you taken approximate measurements using a tape as opposed to a digital instrument but approximate measurements of rock B.
A.Yes, I did.
Q.Looking at it in photograph 11 at its longest point, lengthways if I can use that phrase, approximately how long is rock B.
A.Can I refer to my notes?
PERMISSION TO REFER TO NOTES, [COUNSEL FOR DEFENCE] NOT OBJECTING
A.It was approximately 1600mm or 1.6 m.
Q.At its widest point across, by 'across' I mean extending from the dirt in the direction of the water.
A.Approximately 800 mm or 80 cm.
Q.I want to get a sense if we can of the contours on the rock, accepting we don't have a contour diagram of it. Your observations of the rock were, of the top of it.
A.It was relatively flat but there was a high point or a higher point in about the centre of the rock.
Q.As we look at photo 11, that high point which direction - was there a ridge line, that might be a bit dramatic but do you know what I mean by that.
A.There was a lip around the edge of the rock but not what I would refer to as a ridge line.
Q.Describe the appearance of the rock as it meets up with the dirt that we see in the foreground of that picture.
A.There was a downhill gradient from the plateau lip down to the dirt surface. What that gradient actually was I don't know, I didn't take any measurements of that.
Q.Can you help us with the width of that area where the rock graduates down from its lip to the dirt.
A.Yes, it was approximately 300 mm or 30 cm.
(Emphasis supplied)
Detective Brevet Sergeant Newbury gave this description.
Q.Looking at rock B, as you move in a southerly direction from the edge of the dirt, does the rock rise up to a lip or a high point.
A.Yes.
Q.How would you describe the layout of the rock from that high point as it extends to the pond.
A.As in does it drop away slightly?
Q.Is it flat, is it otherwise.
A.The top of the rock is somewhat flat but it does have a drop that goes away into the pond.
(Emphasis supplied)
Mrs Dansie drowned shortly after 6.00 pm on 16 April 2017. Evidence was agreed and accepted by the Judge to the effect that the air temperature at that time at nearby Kent Town was 20 degrees Celsius. Sunset was at 5.50 pm and civil twilight was from 6.14 pm to 6.16 pm.[34] On 18 April 2017 at 2.50 pm, the water temperature in the pond was 18.5 degrees Celsius at which time the air temperature at Kent Town was 28.5 degrees Celsius.[35]
[34] R v Dansie [2019] SASC 125 at fn 31: “Twilight is the time between day and night when the sun is below the horizon but its rays still light up the sky. Each of the three twilight phases is defined by the solar elevation level. Civil Twilight is the brightest of the three twilight phases. The sun is just below the horizon (up to 6 degrees below) and there is generally enough natural light to carry out most outdoor activities.”
[35] Whilst these agreed facts for 18 April 2017 were noted by the Judge, they do not appear to have been expressly relied on for any purpose; being for a time two days after the event, they could be of little, if any, assistance.
The wheelchair and tyre marks ([94]-[105])
Unchallenged findings by the Judge under this heading included the following. When the wheelchair was recovered from the pond, both brakes were in the off position. The recommended tyre pressure for each of the rear wheel tyres was 60 pounds per square inch (psi). Both were underinflated; 18.5 psi for the left back tyre and 22 psi for the right back tyre. Mr Sage, the vehicle examiner for the police major crash section who examined the wheelchair, tested the operation of the brakes. He found that even when applied together, they did not work – he could push the chair with no difficulty. However, he did not test the brakes with a person sitting in the chair. The Judge made this finding.[36]
[Counsel for the defence] submits that with the weight of a person sitting in the wheelchair the brakes may have operated at least to some extent. With that caveat the evidence was not in dispute. I accept the submission of [counsel for the defence]. I accept that the testing was limited in the manner described by [counsel for the defence]. The brakes may have operated but only to a limited extent.
[36] R v Dansie [2019] SASC 215 at [100].
I interpolate here, with respect, that this finding, favourable to the defence by its terms (“may have operated but only …”) should be given little weight. I accept that it would have been harder and perhaps significantly harder to push the wheelchair with someone as heavy as Mrs Dansie seated in it. And particularly with significantly underinflated tyres on less than smooth terrain. However, I am not persuaded, without experimental or expert evidence, that this weight, whilst it may have flattened to a degree the base of the underinflated tyres, would have caused the brakes to impinge on the upper area of the tyre where otherwise, when applied, they did not.[37] The effort required to push Mrs Dansie may well have varied according to the terrain but the evidence, such as it is, suggests that it would not have varied according to whether the brakes were “on” or off. I return to the Judge’s findings.
[37] The brake on the front of each rear wheel was operated by a lever which pressed a knurled bar against the tyre and released it.
The distance between the front and back wheels was found to be 420 mm to 495 mm (depending on the orientation of the front swivel wheels) and the distance between the base of the two back wheels was 560 mm. The wheelchair weighed 19 kilograms.
Tyre marks consistent with having been made by Mrs Dansie’s wheelchair but also consistent with any wheelchair with the same brand of tyre, were located near the northern edge of the pond. The expert evidence was that at least three separate actions of a tyre were necessary to create the marks observed. No opinion was given as to the direction of travel by any wheelchair or wheelchairs that may have caused the marks.
I interpolate here that, by reference to photographs in evidence and the evidence of the photographer,[38] the tyre marks were roughly in a north to south direction that is heading towards or away from Rock B. Their position and alignment is consistent with the appellant’s account of heading towards Rock B in order to manoeuvre the wheelchair so as to park it on Rock B. Their position and alignment is also consistent with the wheelchair being pushed in the direction of the northern edge of the pond at Rock B and into the pond.
[38] Pages 10-12 of exhibit P6.
Search of [the appellant’s] car on 16 April 2017 ([106]-[125])
The appellant had parked his car on South Terrace.[39] The police searched the car that evening after the discovery of Mrs Dansie’s body and an initial conversation with the appellant. They found the appellant’s Armani watch, his wallet containing $400, his dental plate and a bag containing a change of clothes for himself. There was no dispute about the location of these items. Defence counsel submitted that the wallet was safer in the car, that the appellant may have found the watch uncomfortable, taken it off and forgotten about it, albeit being an explanation entirely inconsistent with that which the appellant had told the police when interviewed (see below) and that it was autumn with the appellant being out for the afternoon and evening wearing only a T-shirt and shorts.
[39] South Terrace is a relatively busy multi-lane roadway that forms one of (the southern) borders of the Adelaide city square mile. On the northern side of South Terrace is the city and on the southern side are the south parklands, including the Gardens.
An issue that assumed some importance was whether the appellant had deliberately lied about why the watch was in the car; the Judge found he did so.[40] Whilst not an express ground of appeal, this finding of “a deliberate untruth” is challenged on appeal.
[40] The Judge analysed the evidence and the issue of whether the appellant had deliberately lied to the police at some length, R v Dansie [2019] SASC 215 at [106]-[118].
When questioned about leaving the watch in the car, the appellant provided on three occasions a specific explanation. During the interview at the Grenfell Street police base[41] he said it had been there for “a couple of days”, he had been “doing some work on the old ute” and being an Armani watch he was “careful about taking it off now before I work”. Later in the same interview he gave a similar explanation but without reference to the watch having been there a couple of days. During the interview back at the Gardens[42] the appellant provided additional detail; after explaining how fanbelts had broken, he added “today I got replacement belts and … I was going to fix those before I picked Helen up so I took my watch off and put it in the car”.
[41] Exhibit P11; transcript is exhibit P12.
[42] Exhibit P19; transcript is exhibit P22.
The explanation given, according to the objective evidence, was plainly untrue. Closed circuit television footage showed the appellant in three separate locations on 16 April 2017 wearing the watch: at 11.49 am after purchasing two fanbelts at an auto parts store, later that day at the nursing home when collecting Mrs Dansie and at an OTR (On The Run) service station at 3.39 pm. However, it was only later that afternoon, some time prior to or on arrival at the Gardens, that he removed the watch and placed it in the car.
The Judge made the following finding[43] and in doing so rejected submissions that the false explanation may have been inadvertently given.
In my view, he was being asked to recall a recent event and gave a similar explanation on three occasions. The repetition of Mr Dansie’s explanation establishes a considered response. In those circumstances, I find it was a deliberate untruth, not just an error in recollection.
On my review of the evidence and bearing in mind that the Judge heard and saw the appellant give his explanations and given that there is no objective evidence rendering the inference that the appellant lied improbable, the Judge was entitled to make this finding.
[43] R v Dansie [2019] SASC 215 at [118].
It is contended that this lie should not be given significant weight in relation to credibility because it related to a peripheral matter with little relevance to the case. I disagree. The timing of the appellant leaving his Armani watch in the car was potentially damaging and obviously so. The lie did not concern a peripheral issue and the Judge was entitled to use it as he did in his Honour’s assessment of credibility.
The Judge accepted the prosecution concession that this deliberate untruth was only to be used when assessing the appellant’s credit when considering answers he gave during his police interviews[44] and that it was not to be used as evidence of a consciousness of guilt probative of the commission of the offence.[45]
[44] Zoneff v The Queen [2000] HCA 28; (2000) CLR 234 at [23].
[45] Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 at 208. Whether or not the prosecution concession was properly given is not in issue. The trial was conducted on the basis of the concession. Cf; the discussion by Kourakis CJ in Bristow v The Queen [2020] SASCFC 91 at [232]-[237] in the context of post-offence evasive conduct.
However, the fact of leaving the watch and the wallet in the car and to a lesser degree the existence of the change of clothes were relied on by the prosecution in support of its submission that the crime had been planned; the appellant had an expectation that he would have to go in the water so as to appear to have tried to rescue Mrs Dansie.
The Judge concluded this section with the following observation.[46]
The significance of the evidence and submissions [about the location of the items] can only be determined in light of the evidence as a whole.
This or a similar observation was made by the Judge on a number of other occasions dealing with other bodies of evidence, consistent with the directions earlier stated as to the proper approach to be undertaken when assessing a circumstantial evidence case.
[46] R v Dansie [2019] SASC 215 at [125].
Events occurring at the pond ([126]-[147])
I observe that this heading is not entirely apposite to the contents of this section.
According to the Judge, the only direct evidence of what occurred was that given by the appellant in an emergency 000 call, when speaking to the first responders (ambulance officers) and when being interviewed by the police. There were many hours of video recorded police interviews which the Judge listened to and watched. The police interviews commenced when the police arrived at the scene, at about 6.30 pm, very soon after the arrival of the first responders to the 000 call, and continued until about 4.12 am the next morning. The police interviews took place at: the scene; the Grenfell Street police base; the appellant’s Waterfall Gully residence; and then back at the scene. This last and second interview in the Gardens took the form of a “walkthrough” interview. The Judge also had the assistance of transcripts of the 000 call and the police interviews. They were admitted as aides memoire only, the admissible evidence being the recordings themselves. The accuracy of the transcripts has not been challenged in any material respect.
The transcripts have been made available to this Court on appeal and I have read them. In broad terms, there are two potentially material aspects to the 000 call and the police interviews: first, their content, that is, the things said and not said by the appellant and second, the Judge’s findings concerning the appellant’s personality and manner of presentation based upon the Judge having heard and seen the appellant during the lengthy interview process. It will be necessary to consider the extent, if at all, that these latter findings had on the Judge’s ultimate findings concerning the appellant’s credit and reliability. The question also arises as to whether or not this Court should also hear and see the video recordings of the appellant with a view to reviewing the soundness or otherwise of the Judge’s findings in these respects.[47] I will return to this issue; for the present, I will confine myself to the Judge’s findings under this heading.
[47] See Pell v The Queen [2020] HCA 12.
The Judge found that the conduct of the appellant both before and after the alleged offence was admissible for the purposes identified by the prosecution.[48] His Honour further observed that the weight, if any, to be given to the evidence of the appellant’s conduct was a contested matter. The purposes identified by the prosecution (and accepted by the Judge) were the following.[49]
(i)Whether or not the appellant’s demeanour, behaviour and topics of conversation embarked upon by the appellant during the interviews demonstrated a lack of distress, relevant as a piece of circumstantial evidence.
(ii)Whether or not the appellant’s conduct, that is, what he did and did not do, what he said and did not say and his demeanour were so unusual that the conduct “was such that it was consistent with a deliberate act of murder rather than accident”.
(iii)Whether or not the appellant’s conduct demonstrated the implausibility of his version of events and of a finding that the death was accidental.
[48] R v Dansie [2019] SASC 215 at [130], citing Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234 at 242-243 (Dixon CJ), Wilson v The Queen [1970] HCA 17; (1970) 123 CLR 334 at 344 (Menzies J) and Farquharson v The Queen [2012] VSCA 296; (2012) 36 VR 538.
[49] R v Dansie [2019] SASC 215 at [127]-[129].
The Judge’s findings based on the appellant’s conduct during the interviews and having considered the parties’ submissions, were elaborate and, to a degree, of a qualified nature. It will be most helpful if I provide a summary using the Judge’s own words.[50]
[50] R v Dansie [2019] SASC 215 at [136]-[145].
I find that during his interviews with the police [the appellant] appeared largely unemotional; his attitude appeared clinical. He showed very little or no emotion that one might expect from a person who had just witnessed the death of his wife of many years. I accept that the vagaries of human nature are such that there will be a substantial variation in the manner in which people would react to such a traumatic event. In assessing [the appellant’s] personality I’ve had regard to the other evidence in the case.
As [the appellant] himself said to the police, he likes to talk and that statement receives strong support from his behaviour that evening. Without meaning to be unkind, [the appellant] does like to talk and often tells stories involving himself. [The appellant] regaled the police, on more than one occasion, with stories that painted himself as successful in whatever endeavour he undertook, and the people with whom he came in contact as forever grateful to him. The stories he told were either irrelevant to the discussion or tangential at best. I am not able to gauge the accuracy of many of his stories but that is not the point. The prosecution points to the fact that, accurate or not, his discussions were not of the type that a person, who had just witnessed the accidental drowning of his wife, would undertake. Much of his conversation sought to impress rather than enlighten.
I do accept that part of the discussion with the police in the early interviews occurred in the context of “passing time” while officers attended to their tasks. Some of his stories were in response to questions asked by the police. On occasions, but not always, the conversations continued because of questions by the police.
The police who initially spoke to [the appellant] were, understandably, sympathetic in their dealings with [the appellant]. However, their curiosity, and no doubt some suspicion about the events, was kindled reasonably early in the investigation. However, [the appellant] continued to talk and talk a lot. His conversation was discursive and on occasions repetitive. Somewhat paradoxically his demeanour and responses fuelled the suspicion that, with some of his answers, he sought to allay.
A number of references were made by [the appellant] to his battles with the Public Advocate in the SACAT over issues of the cost of Mrs Dansie’s treatment and where she was to reside. It is clear from other evidence in the case that Mrs Dansie’s son, her friend and next-door neighbour Mrs Giorgio, and Mrs Dansie’s mother were unhappy with aspects of her treatment. Answers [the appellant] gave about his son, his former next-door neighbour and his mother in law were startling. The clarity and the candour of his dislike, indeed hatred of them, was impressive. It is clear that those opposing [the appellant’s] treatment of Mrs Dansie held similar views about him.
This mutual distrust and dislike was simply part of the background of the matter. I draw no inference adverse to [the appellant] for holding such views. I have not been told of the reasons for the family relationship breakdown nor would it have been particularly relevant. I mention these matters because they are clear from the interviews. Indeed, it was common ground. I do not find that his views indicate bad character on his behalf. I direct myself that I must not reason that simply because he held such views about members of his family and Mrs Dansie’s family that he would be the sort of person that might commit murder. Clearly, I will not do so. However, that is not to say the evidence of the poor relationship with his son, Ms Giorgio and Mrs Dansie’s family is irrelevant. It is important background to the Public Advocate’s evidence and is probative on the question of motive.
The prosecution submits that [the appellant’s] demeanour, the topics of conversation discussed during the interview and some of his answers are all relevant to their case. The prosecution submits that his behaviour and answers during the interview are so unusual that his conduct is consistent with, if not supportive of, a deliberate act of murder rather than accident, or are at least consistent with him having a motive to kill his wife.
[Counsel for the defence] submits that [the appellant] is simply a person who has an unusual personality. He is naturally discursive and his personality, which can be assessed over the many hours of videos, explains his lack of obvious distress and emotion.
I find that [the appellant] does have an unusual personality. His conversation can be discursive. However, I do not accept [counsel for the defence’s] submission that [the appellant’s] personality explains, or totally explains, his lack of distress and emotion. Being discursive may explain his tangential wanderings during the topic being discussed. [The appellant], however, demonstrated the ability to be quite focussed at times. In my view, the selection of topics to be discussed, and often the content of those discussions, reflect directly upon the nature and depth of the relationship between [the appellant] and his wife. In general terms, while respectful of his wife, [the appellant] shows little concern or distress about the fact of her death.
To put that another way, his conversations reflect a lack of care and empathy for his wife and a preoccupation or obsession with money. The particular way in which these matters manifested themselves may be a product of his unusual personality but nevertheless the fact of these feelings and thoughts are still relevant to the prosecution’s circumstantial case as to [the appellant’s] acts, motives and intentions.
The Judge said that he would take these matters into account when assessing the evidence as a whole and then turned to consider “against this background” the content of the appellant’s statements in more detail.
I add that on my reading of the transcripts, particularly of the interview at the Grenfell Street police base and of the interview at the house, the appellant appeared quite detached or removed generally. He was plainly angry about the interference, as he perceived it, in his and Mrs Dansie’s affairs by her family and the Public Advocate about which he was quite frank. He was completely unguarded about how he expressed himself and his opinions and with respect to the topics he was prepared to discuss. He demonstrated a very high sense (perhaps inflated) of his own importance and a real need for attention to his affairs and for admiration. He came across as having a very strange personality with narcissistic tendencies. Given this context, a lack of or apparent lack of empathy and a lack of or failure to show distress may not be so surprising.
I also add that the appellant’s restrained but apparently positive attitude towards his wife can be seen in the following interview extracts.[51]
[51] Exhibit P9, line 1436-1458 and exhibit P12, lines 800-839.
DANSIEUh, Helen’s one of those… those people that… everybody likes.
MUNN:Yeah, okay.
DANSIEUhm… you know, des–despite the fact that… she was having capacity troubles… uhm… she was always… uhm… uhm, working with me to…
MUNN:Mmm.
DANSIE… on what had to be done.
MUNN:Mhmm.
DANSIECuz–cuz really for the last few years she’s had a shitty life.
MUNN:Mmm.
(pause)
MUNN:You’ve got the camera?
SENIOR:Mhm. Yup. (pause) Yes.
MUNN:So, do you not think she’s enjoyed her time at the… at the nursing home, or…?
DANSIEOh, yeah. Well… she’s one of these people that just accepts things.
MUNN:Yeah.
DANSIEUh… you know, she wouldn’t… she wouldn’t put anybody out by complaining.
MUNN:Yup.
DANSIEUhm… but… as I said to Danielle. Uhm… I go out there quite a bit… and, uhm… uhm, I–I play chess with her. Half the time she beats me.
. . . .
QYeah. So how do you think um, so she obviously still had her wits about her did she? Would you say Helen had her wits about her?
AOf course she did.
QYeah.
AUm you know the they said that she was um mentally um oh she had a metal.
QCognitive impairment?
AYeah.
QYep.
ABut no I’d go out there and play chess with her and half the time she’d beat me.
QYep.
AUm and she’d wiz through cross word puzzles. Um and I’d I’d watch her with the other patients out there, and she would she would tell them how to do things, you know if someone was being unreasonable or not eating their food, she would she would talk to them and say.
QYeah.
AYou need to do this and this.
QYep yeah. So how did she feel about being in the home?
AWell Helen is one of those really nice people, every everyone,
QYep.
ALikes Helen, and she would never complain it just was never in her nature.
QYep.
AAnd look in the last twenty years um she was a she was she was a delight to have around.
QYep.
AUm um sometimes she you could see her down in the dumps.
QYep.
AUm particularly the lack of mental stimulus.
QYep.
AUm.
QYep.
ABut I’d um well when she went into the into the home first um I was a little worried about about suicide. But um that that very soon ah um didn’t um evolve into a problem.
QYeah.
AYeah she just adapted.
QYep. And how did you adapt?
AOh pretty bloody unhappy.
QYeah.
AUm but you know well Helen alive is still five hundred percent above Helen not alive.
The 000 call ([148]-[155])
The 000 call was made at 6.26 pm and lasted approximately six minutes and 40 seconds. The Judge summarised the content of the call in these terms.[52]
[The appellant] was asked by the operator to “tell me exactly what happened”. [The appellant] embarked on a description of their movements before Mrs Dansie entered the water. It is approximately one minute and 10 seconds into the phone call that the operator becomes aware of the fact that Mrs Dansie is actually still in the pond. The operator, believing [the appellant] is in the water made a number of suggestions to [the appellant] such as “try and lift her head”, “try and lift her”, “try and push her up against the edge just to try and get her head out of the water”. [The appellant] responded to those requests by saying that he had tried those actions but she was “too heavy”. The operator also pointed out to him that he could just roll her to the edge as she “will be quite buoyant”. There is a pause before [the appellant] tells him that the ambulance officers have arrived.
[The appellant] gave the operator some information about what occurred. This was the first opportunity for him to do so. [The appellant] stated:
• “we were just turning around to go home and it was getting dark”;
• “I couldn’t move her, I said take the, take the brake off and she did and all of a sudden she, she ah, ah, all of a sudden she, ah, wasn’t there anymore”; and
• “the first thing I did was chucked the phone”.
[52] R v Dansie [2019] SASC 215 at [150]-[151].
The Judge then summarised the prosecution submission and the defence submission concerning this call. His Honour concluded that, when considered in the context of the evidence as a whole, there was force in the prosecution submissions that: the call was remarkable for the lack of urgency in what the appellant said and how he said it; the appellant “expressed no distress at all”; the appellant did not immediately alert the operator that Mrs Dansie was still in the pond; and the appellant appeared to have no interest in getting back in and attempting to hold Mrs Dansie’s head above the water while awaiting the ambulance officers.
The prosecution submitted that the reason for the lack of urgency was that the appellant did not want Mrs Dansie to be resuscitated.
Arrival of ambulance officers ([156]-[165])
The ambulance officers arrived at about 6.29 pm. Mrs Dansie’s body was observed to be floating face down close to the northern edge and adjacent to Rock C which was immediately to the east of Rock B.
The Judge accepted the ambulance officer’s observations of the appellant that he:[53]
…seemed calm, almost a little bit exhausted. He appeared wet; his legs were wet and his top half up to about his belly button seemed wet but, in terms of any urgency in his voice or his behaviour, I didn't note any, no.
The Judge also made these findings.[54]
I find that [the appellant] told both the 000 operator and Mr Giles [the ambulance officer] that he had asked Mrs Dansie to take the brakes off and it was after that that she rolled into the pond and he “couldn’t get her out of the water”. He told Mr Giles that she had been in the pond for about 25 minutes. Allowing for the arrival time of the ambulance, Mrs Dansie was in the pond for about 15 to 20 mins before [the appellant] rang 000.
[53] R v Dansie [2019] SASC 215 at [157].
[54] R v Dansie [2019] SASC 215 at [165].
The arrival of the police ([166]-[171)
Sergeant Clague was the first police officer at the scene. He arrived at about 6.34 pm. His evidence was unchallenged and accepted by the Judge. Sergeant Clague was told by the appellant that “they’d come to see the ducks or feed the ducks” and “she leaned down and took the handbrake off” and she “went in” while he had hold of the wheelchair. He tried to get her out but she was “too heavy”. Sergeant Clague described the appellant as appearing very calm and “unfazed by it all”. He did not appear distressed. Sergeant Clague found near a tree: a sheet,[55] a mobile phone case, a sandal and a set of car keys.
[55] The sheet had been folded into a square and placed on the seat of the wheelchair underneath Mrs Dansie. The appellant said that when he was in the pond it was getting in the way, so he grabbed it and flung it onto the bank.
I interpolate here that something was sought to be made by the respondent’s counsel on appeal of the fact that the appellant had said in one of his statements that they were there (at the pond) to watch the sunset, but that this was illogical given that the wheelchair was said to be facing east. The Judge did not refer to or make a finding about this and, with respect, was correct in not doing so. According to the appellant, it was when the sun was setting and everyone else had gone that they decided to go home and on the way to the car they stopped at the pond to see the ducks.[56] The reference to the two of them watching the sunset is in the covertly recorded conversation with Grant Dansie. The transcript is not paginated but on the second to last page of exhibit P15 the following exchange occurs just after and in the context of the appellant telling Grant Dansie that having realised there was nothing he could do in the pond he then rang 000 “and they were there really quick”.
[Appellant]: But it was too late.
GD:And it was like nobody nearby or anything that could
[Appellant]: Oh, well it was dark.
GD:Yeah.
[Appellant]: We, we watched the sun set and there was no one else there.
GD:No OK. Yeah …
The critical statement by the appellant is confirmatory of the fact that it was dark. The events he had just described occurred after the sun had set. No one else was nearby in the Gardens. It was not a statement that they had gone to the pond to watch or that they had watched the sun set while at the pond.
[56] Exhibits P9, pages 3-5 and P12, pages 31-32.
The first formal statement ([172]-[182])
At 6.57 pm and whilst still at the scene, the appellant gave to the police what is colloquially known as the “last to see first to find” statement. It lasted almost two hours (concluding at 8.56 pm and including travel time to the Grenfell Street police base) and occupies 84 pages of transcription. The appellant also signed a handwritten statement which accurately reflects the relevant substance but not all of the content of the video recording.
The handwritten statement contains the following account of what the appellant said happened – essentially, the defence case.[57]
It was about 6.00 pm when we went to leave. The wheelchair was resting on a flat rock. I told Helen to take the brakes off but she took them off a bit quick for me. I was already pushing against the chair because I thought it was stuck and didn’t realise the brakes were on, so when Helen took off the brakes the chair rolled into the water face first and her head was down. I grabbed my phone and keys out of my pocket and threw them aside. I got into the water which came up to my chest, I tried to roll her over but wasn’t able to. I pushed her closer to an edge to try and get her in a position that I could get her out but I couldn’t. I could feel her arms moving but I don’t really recall much else that happened. I was in the water trying to help her for maybe 15 – 20 minutes when I then got out of the water and called 000 and asked for the ambulance. I waited on the side of the water until the ambulance and police arrived. Helen was no longer moving. The guy on the phone asked me to get back into the water but I was worried if I did I wouldn’t be able to get out. I remained on the phone the whole time.
The Judge found that this account was generally consistent with the appellant’s earlier statements.
[57] R v Dansie [2019] SASC 215 at [175].
“Bing” Internet Searches Search queries Date and time Guilin Chinas 15/04/2017 at 02:29:46 AM sexy 6 inch stiletto shoes for sale 10/04/2017 at 11:45:39 AM blackwell funerals glenside 18/03/2017 at 01:10:29 AM sexy 6 inch stiletto heel shoes for sale 18/03/2017 at 01:08:45 AM sexy stiletto hell shoes for sale 18/03/2017 at 01:06:04 AM sexy one piece swimming costumes for sale 18/03/2017 at 01:03:56 AM market in Shenyang for shoes and clothes 16/03/2017 at 09:35:20 AM Sale Over the Knee Boots 14/03/2017 at 11:17:24 PM Cheap Clearance Over Knee Boots 14/03/2017 at 11:16:56 PM Thigh High Boots Cheap Sale 14/03/2017 at 11:15:10 PM Visa for china Canberra 12/03/2017 at 05:02:35 AM cheap funerals 12/03/2017 at 12:23:13 AM cheap funerals Adelaide 12/03/2017 at 12:22:26 AM white lady funerals 12/03/2017 at 12:17:50 AM clothes/shoe markets in Shenyang 11/03/2017 at 09:46:56 AM role playing for sex 11/03/2017 at 03:13:14 AM sexual role playing games 11/03/2017 at 02:58:48 AM role playing games 11/03/2017 at 02:56:50 AM Singles Fushun China 28/02/2017 at 03:41:04 PM Fushun Women 28/02/2017 at 03:40:32 PM China Liaoning Fushun 28/02/2017 at 03:38:31 PM 28/01/2016 at 02:37:22 AM
“Internet explorer” history Website accessed Date and time 27/03/2013[459] at 11:49:47 AM 27/03/2013[460] at 11:48:31 AM 12/03/2017 at 12:16:35 AM 12/03/2017 at 12:18:40 AM 12/03/2017 at 12:19:17 AM 12/03/2017 at 10:53:40 AM [459] I have assumed it is a typographical error and the date refers to 2017.
[460] I have assumed it is a typographical error and the date refers to 2017.
QQ Messages from Accused’s Asus laptop 17/B67120-8 seized on 17 April 2017
QQ messages to “Sophia” from the accused 6 April 2017 and 15 April 2017
Messages to Sophia hello Sophia Do you have a friend in mind who you want to play with us I am glad that you are happy for me to use my penis as well as fingers and mouth to satisfy you. I was not trying to be indelicate, but just trying to avoid an inappropriate action. And if you love sex, then your statement about loving porn must be true also. I will have to think up some more interesting scenarios for our games. wait till we meet, then i am a bad boy we make a good couple, me handsome and you beautiful Hey, when i say to you that i like leather tights or black stockings, i am not hinting to you to go out and buy them. I would prefer to buy them as a gift to you I like anything skin tight on a woman playing comes first, then husband You really do have some very sexy underwear
QQ Messages received by the accused from “Sophia” between 6 April 2017 and 15 April 2017 Messages from Sophia Do you know the Liaoning Hotel What time do you decide to come to Shenyang I am slim
QQ Messages sent by the accused to “Rose” Messages to Rose Hi Rose, I would like to catch up with you on my next trip to China. I am intrigued by the photos you have sent me, and I would like to see more of you. I think you know the shots I mentioned which captivated me. If you are interested please get back in touch and we can work something out Please send me some more photos of you in bra and panties, different ones. Also of you in the shower and you getting out of bed. If you don’t want to, then that is ok too, but you look good like that, And i love you wearing those low cut dresses. 68During the same search of the appellant’s home, a travel bag was located in a bedroom on the mezzanine level which contained “numerous condoms” and “numerous Viagra tablets”. These were not seized.[461]
[461] R v Dansie [2019] SASC 215, [353].
69During a subsequent attendance at the Waterfall Gully home on 17 May 2017, there was another search and, in an upstairs bedroom, a suitcase was located by Brevet Sergeant Taylor. It contained personal belongings and tourist items, as well as items of female clothing, being a black corset, two black G-strings, one cream lingerie suspender, a black leather dress and a leather skirt. Sex toys were also found. In a small plastic bag next to the suitcase were medications and another sex toy. In a backpack other travel items were located, including diarrhoea relief tablets, power adaptors, a passport photograph of the appellant, a new memory card for a camera, eight condoms, a packet of Viagra tablets, another pack of tablets similar to Viagra, and a map of Beijing. Underneath the backpack was another sex toy.[462]
[462] R v Dansie [2019] SASC 215, [354].
70The trial Judge could not say whether some of these items were seen on 16 and 17 April 2017, or when they all came into the appellant’s possession. The trial Judge found, however, that all of the items belonged to the appellant. The trial Judge made a finding that this evidence was not discreditable conduct evidence within s 34P of the Evidence Act 1929 (SA), as possession of it was not illegal. The trial Judge inferred that the appellant was about to travel overseas, particularly to China, and the items located were directly relevant to the internet searches and the QQ messages. The items “give colour and context to Mr Dansie’s conversations with Sophia” but they were not to be used “as evidence of bad character or propensity”.[463]
[463] R v Dansie [2019] SASC 215, [355]-[356].
71On 19 April 2017, the appellant spoke with a television news reporter and told her, amongst other matters, that when he got into the pond the water came up to his chin. The trial Judge found that this statement was “inaccurate” and that it was relevant to the appellant’s “credit”.[464]
[464] R v Dansie [2019] SASC 215, [327]-[328].
72The appellant spoke with his son on 21 April 2017. His son wore a recording device supplied by police. As with a number of other people, the appellant described his treatment by the police in terms which were “not correct”.[465]
[465] R v Dansie [2019] SASC 215, [343]-[344].
73During telephone intercepts between 21 April 2017 and 9 May 2017, the appellant spoke with a number of people. The trial Judge found that these conversations revealed that the appellant knew that he benefited financially from the death of Mrs Dansie because their properties and bank accounts were held in joint names, so that they “became his property”. In addition, the appellant had “an extremely poor relationship” with his son and Mrs Dansie’s family and was concerned to protect Mrs Dansie’s assets from her family. The appellant was uncomplimentary about the Public Advocate.[466]
[466] R v Dansie [2019] SASC 215, [345]-[349].
74Between 7 May and 16 May 2017, the appellant had a number of conversations and “SMS conversations” with a woman called Sophia who lived in China. The following was agreed:[467]
[467] R v Dansie [2019] SASC 215, [357].
Call Number Date/Time SMS/ CALL Direction Content of SMS/Summary of call 140 7 May 2017 6:48pm CALL Accused – Sophia Accused tells Sophia about his travel plans to China and refers to booking them into a hotel. Sophia tells the accused “Miss you I’m thinking you”. The accused responds “Ah, we’ll get there” 193 9 May 2017 5:12pm SMS Sophia – Accused I come back soon after a meeting. don't lisstion you call me. if you will arrive at Liaoning hotel NO.18 on Shenyang. give me a phone 269 14 May 2017 2:43pm CALL Accused – Sophia Accused and Sophia make arrangements for Sophia to pick the accused up from the airport or hotel when he arrives in China. Discuss flight times and airline. 312 16 May 2017 3:09pm SMS Sophia – Accused Hello, Peter Ticket, flight, tell me I do not know. What time do I pick you up at the airport? 313 16 May 2017 3:17pm SMS Sophia – Accused You sent it to my mailbox You can send me messages too Do you need me to meet you at the airport? 318 16 May 2017 4:32pm SMS Accused – Sophia About 12.30 at the airport would be good thanks SOPHIA 319 16 May 2017 4:44pm SMS Sophia – Accused Peter, number 18, see you at 12.30 noon flight number 320 16 May 2017 8:10pm SMS Accused – Sophia NO no. 12.30 in the middle of the night. Midnight plus half an hour. Actually half an hour into Friday. 322 16 May 2017 8:16pm SMS Sophia – Accused I leave my home at 10am and travel for 10 hours 324 16 May 2017 8:22pm SMS Accused – Sophia You have dinner in Shenyang then drive to the airport to collect me 326 16 May 2017 8:25pm SMS Sophia – Accused Actually I travel for 14 hours 327 16 May 2017 8:34pm SMS Sophia – Accused Airline tickets, flights 328 16 May 2017 8:38pm SMS Accused – Sophia I arrive midnight NOT midday
You have dinner then collect me from the airport329 16 May 2017 8:39pm CALL Accused – Sophia Arrangements for Sophia to pick up the accused from the airport.
Sophia makes kissing noises on phone to accused when they are saying goodbye.75Again, the trial Judge found that this contact was not illegal, nor did it amount to “discreditable conduct” within s 34P of the Evidence Act 1929 (SA). It could not be used as evidence of “bad character or propensity”. Nonetheless, the calls were regarded by the trial Judge as relevant to and informing “the nature of” his contact with Sophia before Mrs Dansie died.[468]
76Between 28 April 2017 and 1 May 2017, the appellant made four telephone enquiries regarding the availability of flights to China between mid-May and early June 2017. The trial Judge found that these calls related to the contact made with Sophia after Mrs Dansie’s death.[469]
77The trial Judge found that the appellant had the benefit of a policy for $15,000 on the accidental death of Mrs Dansie, which was taken out as a form of funeral coverage.[470]
[468] R v Dansie [2019] SASC 215, [358].
[469] R v Dansie [2019] SASC 215, [359].
[470] R v Dansie [2019] SASC 215, [407].
Adverse credit findings
The trial Judge made adverse credibility findings concerning the appellant’s:[471]
1lie regarding his Armani watch;
2treatment by police;
3relationship with Sophia in China;
4failure to disclose his internet searches regarding “sex” clothing and boots;
5failure to fully disclose his searches concerning funeral costs; and
6failure to disclose messages with “Rose”.
[471] R v Dansie [2019] SASC 215, [370]-[372].
The trial Judge, therefore, found that the appellant was prepared to “embellish matters” if it was “in his interests to do so”[472] and, “when it suited him”, the appellant “was not always frank with the police”.[473]
[472] R v Dansie [2019] SASC 215, [370].
[473] R v Dansie [2019] SASC 215, [373].
I am satisfied that there was a proper basis for these findings. They were open to the trial Judge and, with respect, I agree with them.
Importantly, the trial Judge rejected the appellant’s explanation as to how Mrs Dansie came to be in the pond. The trial Judge accepted the appellant’s statement against self-interest that he was still holding the wheelchair when Mrs Dansie entered the water but, “it is most unlikely that Mrs Dansie could have entered the water unless there was an external force operating” because the “wheelchair simply rolling into the pond would not be consistent with the topography of the area around the pond”.[474]
[474] R v Dansie [2019] SASC 215, [375].
Similarly, the trial Judge rejected the appellant’s explanation as to why the appellant put the wheelchair on Rock B. Though the appellant initially told Brevet Sergeant Munn that this was because it was a flat rock and a stable platform, later questioning showed that the rock was neither a flat nor stable platform for the wheelchair.[475] According to the trial Judge, there was “simply no reason for [the appellant] to put Mrs Dansie in a place which was clearly unsafe”.[476] The placement of the wheelchair made “leaving the area difficult”, particularly in the way the appellant said he had intended.[477] Critically, the trial Judge made the following findings:[478]
I find that his explanation that he turned the wheelchair in a north-easterly direction and Mrs Dansie and the wheelchair, which he had hold of, apparently travelled in a southerly direction, is inherently implausible. Mr Dansie, when confronted by the police at the Gardens with the implausibility of his version of events, clearly had no answer. Mr Dansie, as can be seen from the video, hesitates and pauses for significant periods of time as he attempts to answer the questions. He admits that he cannot account for the difficulties in his version of events. Mr Dansie was unable to give a plausible account as to how Mrs Dansie came to be in the water. It is not his demeanour; it is his inability to give a sensible explanation that is relevant.
I reject Mr Dansie’s explanation that in some way the release of the brakes on the wheelchair led to the wheelchair falling into the pond. Mr Dansie told the 000 operator, Constable Senior and Brevet Sergeant Munn that the release of the brakes led to the wheelchair moving quickly and unexpectedly. The evidence of Mr Sage contradicts Mr Dansie’s explanation. The brakes were largely, although not totally, ineffective. Further, even if the brakes were operating effectively, taking them off unexpectedly would not account for the wheelchair falling into the pond as described.
I reject Mr Dansie’s explanations as to what occurred once he got into the water in his attempt to save Mrs Dansie. Mr Dansie’s account of his and Mrs Dansie’s movements once in the water is notable by the paucity of detail. Other than an assertion that he “couldn’t get her out” there is almost no detail of what occurred. …
[475] R v Dansie [2019] SASC 215, [376].
[476] R v Dansie [2019] SASC 215, [377].
[477] R v Dansie [2019] SASC 215, [377].
[478] R v Dansie [2019] SASC 215, [378]-[380].
Though the trial Judge rejected the appellant’s explanations because they were inconsistent with proven facts, he took into account his findings on credit when assessing them.[479] The trial Judge also had regard to the lack of distress exhibited by the appellant during the whole time of the police interviews.[480]
[479] R v Dansie [2019] SASC 215, [392].
[480] R v Dansie [2019] SASC 215, [393].
The trial Judge highlighted what he described as a “rather … odd statement” by the appellant in which he said that Mrs Dansie was taking up “more and more of my time” when, in fact, she had been in the nursing home for 18 months. The trial Judge found it difficult to see how Mrs Dansie could be taking up “more and more” of the appellant’s time compared with when she lived with the appellant at their Waterfall Gully home. In the opinion of the trial Judge, this reflected “how Mr Dansie saw their relationship in 2017; it was taking up his time”.[481]
[481] R v Dansie [2019] SASC 215, [395]-[396].
Likewise, the trial Judge found that the appellant showed “no urgency or distress” during the 000 call and, in particular, it was “remarkable that it takes over a minute for Mr Dansie to tell the operator that Mrs Dansie is still in the pond”.[482]
[482] R v Dansie [2019] SASC 215, [399].
The trial Judge found it “striking” that the appellant refused to get back into the pond to assist Mrs Dansie, despite the instructions and suggestions of the operator. The trial Judge found that the appellant’s “unusual personality” could not account for this behaviour. Rather, this was “demonstrative of a lack of any genuine intention or desire to help Mrs Dansie”.[483]
[483] R v Dansie [2019] SASC 215, [399]-[400].
The trial Judge found that it was “highly unlikely that Mrs Dansie drowned accidentally in the pond”.[484]
[484] R v Dansie [2019] SASC 215, [402].
The trial Judge reasoned that the appellant left his watch in his car, together with his wallet and a change of clothes, because the appellant expected “that he was going to get wet while in the Gardens”.[485]
[485] R v Dansie [2019] SASC 215, [404]-[406].
As to the internet searches, the trial Judge made the following important conclusions:[486]
The prosecution has established that Mr Dansie searched the internet enquiring about funerals. There were seven different searches on 12 March 2017 and one on 18 March 2017. The search on 18 March 2017 was of Blackwell Funerals Glenside and occurred at 1:10:29 am. Approximately a minute and a half earlier Mr Dansie had been searching “sexy 6 inch stiletto heel shoes for sale”. Mr Dansie did not tell the police about these searches. He did mention that he had gone to Blackwell Funerals and spoken to someone there in response to insurance people ringing him. He had become sick of them bothering him so he investigated the cost by attending at Blackwell Funerals. He said nothing to police to indicate that his interest in funeral insurance was prompted by the deaths of Mrs Dansie’s brother and cousin.
[486] R v Dansie [2019] SASC 215, [406].
Unsurprisingly, the trial Judge found that the evidence showed that, before Mrs Dansie’s death, the appellant was contemplating the arrangements that would need to be made in the event of Mrs Dansie’s death, “despite the fact that she appeared to be in good health” and was doing so “on at least one occasion … about the same time as he was considering purchasing some ‘sexy’ shoes”.[487]
[487] R v Dansie [2019] SASC 215, [408].
The trial Judge accepted that the prosecution had proved a financial motive as well as a relationship motive (including a sexual motive) concerning “the lady called Sophia”.[488] Whilst these motives did not of themselves establish guilt, the trial Judge found that they fell to be considered with the balance of the circumstantial evidence relied upon by the prosecution.[489] They were capable of being used as matters from which the trial Judge “might properly infer intention”.[490]
[488] R v Dansie [2019] SASC 215, [409].
[489] R v Dansie [2019] SASC 215, [421].
[490] R v Baden-Clay (2016) 258 CLR 308, [70] (the Court) citing De Gruchy v The Queen (2002) 211 CLR 85, [28]. See also R v Bond [1906] 2 KB 389, 401, cited with approval in Wilson v The Queen (1970) 123 CLR 334, 343-344 (Menzies J, with whom McTiernan and Walsh JJ agreed); Mutual Life Insurance Co of New York v Moss (1906) 4 CLR 311, 317, 323; R v Ball [1911] AC 47, 68; R v Plomp [1962] Qd R 161, 175, 185-186; Lewis v The Queen [1979] 2 SCR 821, 831; R v Heath [1991] 2 Qd R 182, 202-203; Richardson v The Queen [2013] NSWCCA 218, [56].
I am satisfied that there was a proper basis for these findings. All were open on the evidence led at the trial. Respectfully, I agree with them.
Reasoning to guilt
After his extensive recitation of the evidence, and the findings described, the trial Judge had regard to all of the evidence and found that the prosecution had proved the elements of murder beyond reasonable doubt, and that the appellant had “deliberately and with intent to kill Mrs Dansie, pushed her wheelchair, in which she was sitting, into the pond in the Gardens. As a result of that action, Mrs Dansie drowned in the pond”.[491]
[491] R v Dansie [2019] SASC 215, [422]-[423].
The trial Judge found that “not only is this finding of guilt a rational inference, … it is [the] only rational inference available on the evidence”.[492]
[492] R v Dansie [2019] SASC 215, [424].
Considering the inferences available on the evidence
Having reviewed the evidence before the trial Judge, the inferences and reasoning available on the whole of the circumstantial evidence include the following matters:
1The appellant expected to be, and was, in a better financial position following the death of his wife. As the trial Judge correctly recognised, the appellant was obsessed about his battles with the Public Advocate and very mindful of his income and wealth. Whilst it might be said that the income streams involved were not large, and too small to warrant contemplating murder, the context was that the appellant had a very modest regular income stream. Whatever the truth about the propriety of his management of Mrs Dansie’s pension income, her residence in a nursing home took up most of that income and, with her dead, the appellant could take the sole benefit of an annual pension income. This was, for the appellant, comparatively important in circumstances where his own personal exertion and pension income was so modest.
2The appellant wanted to travel for the purposes of a sexual relationship in China which, at least ostensibly, involved the prospect of discussion about marriage. Regardless whether the appellant intended to marry Sophia, or anyone else, he knew that this was of interest to Sophia, and others (“playing comes first, then husband”). It might well be said that this was especially important to a Chinese woman who, according to the appellant, had no business or wealth and therefore no prospect of getting a visa to live in Australia. The appellant was admittedly bored and apparently consumed by the prospect of what he regarded as a sexually exciting liaison. He was planning for it. After Mrs Dansie’s death, the appellant rapidly took steps to implement his travel plans. Though the appellant before April 2017 may have been free to travel to China, largely as he pleased, he had not previously done so. Doing so would be easier without the burden of caring for his disabled wife and having to address the stress and potential expense of a SACAT hearing in July, coupled with a possible investigation by the Public Advocate into the appellant’s management of his wife’s finances.
3Whilst the relationship between the appellant and Mrs Dansie had, before her death, appeared amicable, there is a great deal in what the trial Judge said about it being something which the appellant had come to regard as time consuming. He had been her carer for many years and, after she moved into a nursing home, he recognised that he was not visiting as often as he “should”. The appellant’s messaging with other women suggests that he was keen to progress other relationships. Nonetheless, there was no talk of divorce. His silence on the topic might suggest that this was something that the appellant did not wish to contemplate. He may well have found it abhorrent. Nonetheless, that is not inconsistent with the recognition that a financial separation associated with divorce would expose the appellant to the risk of losing his share of his wife’s pension income payable on her death and a significant portion of their jointly-owned assets.
4The internet searches are very revealing. They comprise important admissions by conduct regarding the appellant’s thinking in the month or so before Mrs Dansie’s death. They show, starkly and clearly, that between 12 March and 10 April 2017 the appellant was investigating the cost of cheap funerals, “sexy” clothing and apparel and travel to China. The appellant had the benefit of funeral insurance in an amount of $15,000. Why he was interested in the cost of a “cheap” funeral could not be explained by the deaths of his wife’s brother and cousin. These searches show that the appellant was contemplating his wife’s death at the same time as he was planning to travel to China for a relationship that involved a range of sexual activity and apparel.
5The appellant had measured the depths of other water features in the Gardens, but claimed not to know the depth of the pond. There were no other people nearby in this secluded part of the Gardens for approximately five minutes before Mrs Dansie entered the water.
6When these matters are borne in mind when reviewing the appellant’s unconvincing explanations about how his wife came to be at, and then fall into, the pond in the early evening of 16 April 2017, and why he could not assist her in water that was little more than waist high, the circumstantial case becomes compelling.
These inferences and considerations are not exhaustive. There are, in addition, the adverse credit findings such as the lies about why the Armani watch was left in the car (the appellant expected to get wet), and that the appellant was not fully forthcoming to police about his contact with women or the internet searches he had been making about “sexy” clothing and “cheap” funerals.
Whether the trial Judge had explicit regard to all of these inferences and considerations is not to the point. They might have been included as a penultimate step in his reasoning before articulating his ultimate conclusion of guilt. That was, however, by no means essential. These inferences were open to him because they arise on an independent review of the evidence and demonstrate that there was a clear pathway to proof of guilt beyond reasonable doubt.
Though the various, potentially conflicting, inferences in respect of each piece of evidence considered by Nicholson J were arguable, it is not suggested by the appellant that the various inferences tending towards guilt were not open or could not be drawn by the trier of fact. He contends for different inferences. The potential for argument about inferences does not necessarily generate a basis for concluding that the trier of fact must, as distinct from may, have entertained reasonable doubt. For example, any suggested “improbability” that the appellant might resort to murder is undoubtedly a relevant matter. It is extremely unlikely that the trial Judge overlooked this and other “quintessential jury questions”.[493]
[493] Farquharson v The Queen (2012) 36 VR 538 (CA), [115].
Many of the more important matters were raised before the trial Judge and before this Court. It is neither necessary nor appropriate for this Court to dwell upon what might be regarded as arguments for the defence about inferences.[494] Our task is concerned with the identification of error and guarding against the risk of any miscarriage of justice. We do not try the case, even when reviewing the evidence with the benefit of arguments for the defence and prosecution so as to determine whether the verdict was “unreasonable” for the purposes of the first limb of the common form criminal appeal provision.
[494] R v Allen (2011) 109 SASR 396, [5] (Doyle CJ), in a different context when addressing directions to a jury, an approach which “comes close to arguing the merits of the defence case”.
Whether the inferences tending towards guilt should or should not be drawn, and the weight to be given to each, as well as the whole of the evidence, were primarily and classically matters for the trier of fact. So, even if a piece of evidence is capable of being viewed in a manner consistent with innocence, that will not require that this Court intervene unless, for example, it has been erroneously addressed by the trial judge (so as to lead to error), or its role as part of the whole necessarily raises scope for reasonable doubt.
An illustration of the issue just mentioned is the finding made regarding the question whether it was reasonably possible that Mrs Dansie had drowned accidentally.[495] What the appellant said about the way in which Mrs Dansie fell into the pond, when viewed in isolation, might well allow for the reasonable possibility that her death was the result of an accident. That was necessarily left open by the trial Judge’s intermediate conclusion that it was “highly unlikely Mrs Dansie drowned accidentally”. However, that is of little moment on the authorities involving circumstantial evidence. As was said by Dixon CJ in Plomp v The Queen, after weighing all of the circumstances, the trial Judge might reasonably have concluded that it put “an incredible strain on human experience”[496] to say that Mrs Dansie died as a result of an accident, notwithstanding Mr Dansie’s proved financial and relationship (or sexual) motives and the absence of any credible explanation as to how Mrs Dansie came to enter the water.
[495] R v Dansie [2019] SASC 215, [402].
[496] Plomp v The Queen (1963) 110 CLR 234, 243.
Indeed, as the trial Judge clearly recognised, placing Mr Dansie and her wheelchair at the water’s edge was obviously unsafe. There was no good reason for Mrs Dansie to be at the water’s edge at all, or on Rock B, some 10 metres from the path in the Gardens and from which the pond could be seen.
Finally, it was perfectly proper to consider the explanation given for the claimed inability to rescue Mrs Dansie. It was an important issue. The adverse credit finding on this topic is likewise important. The Crown case was not based on any accidental fall followed by a deliberate failure to rescue.[497] Rather, the prosecution case from first to last was that there was no attempted rescue. Despite the appellant’s height and strength, he did not rescue Mrs Dansie because he never intended to do so. Rescuing Mrs Dansie formed no part of his plan. This inference, as with many others arising on the whole of the evidence, was open to the trial Judge.
[497] Which might possibly have raised issues about the scope for guilt based on inaction or omission, or perhaps about manslaughter by criminal negligence.
Reviewing the video and audio evidence
Given the statements made by the High Court in SKA v The Queen and Pell v The Queen, I was in some doubt about whether it was necessary for this Court to consider the video recordings of the appellant’s records of interview and the audio recording of his 000 call.
It was not suggested that the various features described, such as the delayed responses to questions, or the demeanour findings made by the trial Judge, were not accurate or not open to him. In short, no particular forensic purpose was suggested when we were asked to review the video and audio recordings.
Nonetheless, as the parties jointly requested that we do so, out of an abundance of caution, I have done so. I am mindful that this course was not opposed, as it was in Pell v The Queen, and there is here no risk of “imbalance” or “undue focus” by failing to consider the video recordings of the evidence of other witnesses, as there was in that case.[498] Nonetheless, reviewing this kind of evidence as a part of appellate review must be done with caution and circumspection. It is not my own view of this evidence that is important in this case. The question is whether the view taken of this evidence by the trial Judge was open.
[498] Pell v The Queen (2020) 94 ALJR 394, [33] (the Court).
This appears to have been the approach in Tiwary v The Queen, where the Court of Criminal Appeal emphasised that they had “not ourselves taken our own impressions of the appellant’s attitude and demeanour in the walkthrough into account”.[499]
[499] A case of a successful appeal following a trial before a jury where an accused’s interview with police was videoed, Tiwary v The Queen [2012] NSWCCA 193, [99] (Bathurst CJ, Allsop P and Fullerton J): “[t]he need for caution is reinforced because we cannot say that we all had the same impression of the ‘walkthrough’”.
In my opinion the trial Judge’s treatment of this evidence, and the adverse findings he has made based upon it, were open to him. And, with respect, I agree with his treatment and findings.
Conclusions
The Court of Criminal Appeal does not decide whether inferences tending towards guilt should or should not have been drawn following a verdict of guilty where proof depends on circumstantial evidence. It decides whether it was open to the jury in a jury trial, or the trial judge in a trial by the judge alone, to draw those inferences and, ultimately, whether it was open at trial to conclude that the only rational hypothesis is guilt beyond reasonable doubt.
That conclusion is reached by the Court of Criminal Appeal only after it undertakes its own independent review of the evidence before the trial court. Recognising the trial court’s advantage in seeing and hearing the witnesses, and respecting the demarcation between the trial court and the appeal court, the appeal court evaluates whether the evidence so lacks credibility, displays discrepancies or inadequacies, or is otherwise beset by such shortcomings or obstacles to proof, that there must, as distinct from might, have been reasonable doubt about proof of guilt. In most cases, a doubt experienced by an appeal court will be a doubt which ought to have been experienced by the jury or by the judge in a trial by judge alone.[500] That is, whether there arises a significant possibility that an innocent person has been convicted.[501]
[500] Filippou v The Queen (2015) 256 CLR 47, [12] (French CJ, Bell, Keane and Nettle JJ) citing M v The Queen (1994) 181 CLR 487, 494 (Mason CJ, Deane, Dawson, and Toohey JJ).
[501] Chidiac v The Queen (1991) 171 CLR 432, 444 (Mason CJ); Pell v The Queen (2020) 94 ALJR 394, [127] (the Court).
Nicholson J has persuasively explained why the appellant’s grounds of appeal, save one, must be rejected. I agree with Nicholson J that those grounds should be rejected for the reasons he gives.
Respectfully, I disagree with the view that the conviction is nevertheless unreasonable or cannot be supported by the evidence. In my opinion, the appeal should be dismissed.
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