Dent v The Queen

Case [2021] SASCFC 4

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

DENT v THE QUEEN

[2021] SASCFC 4

Judgment of The Court of Criminal Appeal  

(The Honourable Justice Kelly, the Honourable Justice Peek and the Honourable Justice Parker)

1 February 2021

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION

CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - STATEMENTS - VOLUNTARY STATEMENTS - FUNCTIONS OF JUDGE AND JURY - DIRECTIONS TO JURY

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE

CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - CIRCUMSTANTIAL EVIDENCE - GENERALLY

Appeal against conviction. 

The appellant was convicted after a trial by jury of one count of murder contrary to s 11 of the Criminal Law Consolidation Act 1935 (SA). The appellant murdered her partner on or around 3 December 2015 by administering a cocktail of prescription medication. The appellant stood to benefit financially from the murder, as she was the sole beneficiary of the deceased’s estate.

The prosecution case was entirely circumstantial. At trial, evidence of ‘lies’ or statements made by the appellant in various forms were admitted.

The appellant appeals against the conviction on the basis that the fair trial of the appellant miscarried due to the admission of those statements, or the failure to adequately direct the jury as to the proper use of those statements. The appellant also contends that the verdict of the jury is unreasonable, unsatisfactory and against the weight of the evidence.

Held per Kelly J (Peek and Parker JJ agreeing), allowing the appeal, quashing the conviction and remitting the matter for retrial:

1.      The complexity and interaction of the various categories of lies, which were relied on for different reasons, required clear and careful directions tailored to each particular category. It was not sufficient to give a generic warning to the jury addressing all of the lies or statements made by the appellant.

2.      It was essential that each specific asserted lie be identified. In this absence of this identification, the jury may have considered all of the lies collectively when considering the appellant’s credit and whether and what lies were probative of guilt.

3.      Evidence of lies told by the appellant after the deceased’s death required a full Edwards direction as they can only be properly characterised as lies capable of evidencing a consciousness of guilt.

4.      Despite the strength of the prosecution case against the appellant, the Judge’s directions as to the lies was, in all of the circumstances of this case, inadequate and may have led to a miscarriage of justice.

Evidence Act 1929 (SA) s 34R; Criminal Procedure Act 1921 (SA) s 158(2), referred to.

Edwards v The Queen (1993) 178 CLR 193; Harris v The Queen (1990) 55 SASR 321; R v Quist (2017) 127 SASR 471; The Queen v Baden-Clay (2016) 258 CLR 308; The…

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Dent v The Queen [2021] SASCFC 4
Case
[2021] SASCFC 4
Decision Date

CaseChat Overview and Summary

In *Dent v The Queen*, the Court of Appeal of South Australia considered an appeal against a conviction for murder. The prosecution's case was largely circumstantial, relying on fifteen distinct categories of evidence to be considered in combination. The appellant was alleged to have murdered the deceased to benefit financially from his will and superannuation.

The central legal issue before the court was whether the trial judge's directions to the jury regarding the appellant's alleged lies were adequate. Specifically, the court had to determine if the jury had been properly instructed on how to consider various categories of statements made by the appellant, some of which were relied upon as evidence of guilt and others as potentially affecting her credit. The court also considered whether the cumulative effect of any misdirection or non-direction concerning these lies may have led to a miscarriage of justice, notwithstanding the strength of the prosecution's circumstantial case.

The Court, allowing the appeal, held that the complexity and interaction of the different categories of lies required clear and specific directions tailored to each. It was insufficient to provide a generic warning. The court emphasised the necessity of identifying each specific alleged lie so that the jury did not consider them collectively when assessing the appellant's credit or their probative value regarding guilt. Furthermore, evidence of lies told after the deceased's death necessitated a full *Edwards* direction, as such lies could only be characterised as evidencing a consciousness of guilt. Despite acknowledging the strength of the prosecution's case, the court concluded that the directions concerning the lies were inadequate and may have resulted in a miscarriage of justice.

Consequently, the Court of Appeal quashed the conviction and remitted the matter for a retrial.

Orders

Orders of the court

Held per Kelly J (Peek and Parker JJ agreeing), allowing the appeal, quashing the conviction and remitting the matter for retrial:

1. The complexity and interaction of the various categories of lies, which were relied on for different reasons, required clear and careful directions tailored to each particular category. It was not sufficient to give a generic warning to the jury addressing all of the lies or statements made by the appellant.

2. It was essential that each specific asserted lie be identified. In this absence of this identification, the jury may have considered all of the lies collectively when considering the appellant’s credit and whether and what lies were probative of guilt.

3. Evidence of lies told by the appellant after the deceased’s death required a full Edwards direction as they can only be properly characterised as lies capable of evidencing a consciousness of guilt.

4. Despite the strength of the prosecution case against the appellant, the Judge’s directions as to the lies was, in all of the circumstances of this case, inadequate and may have led to a miscarriage of justice.

Background

Background to the litigation

On 15 July 2020, a single Judge of this Court granted permission to appeal in respect of all six grounds. Background The case against the appellant was circumstantial. It relied on 15 topics of circumstantial evidence that were to be considered in combination. Due to the nature of the appeal grounds and the submissions made by the parties, it is necessary to summarise the evidence at trial in some detail. Evidence of motive The prosecution case was that the appellant murdered the deceased because she stood to benefit financially from his death. The appellant was the sole executor and beneficiary of the deceased’s will, which was created and signed on 25 September 2015, nine weeks before the deceased’s death. The appellant was also the sole beneficiary of the deceased’s superannuation due to a binding death nomination signed on 4 October 2014. In November 2015, the deceased’s superannuation fund held a balance of approximately $175,462. Shortly before his death, there was evidence that the deceased was contemplating revisiting his will and that the appellant was aware of this. In late November 2015, the deceased asked his neighbour, Mr Geissler, for his full name, address and date of birth, as he needed to put those details in his will. Mr Geissler gave evidence that the appellant was present when the deceased made this request. The deceased’s brother, Kym Lawrence, also gave evidence that on 29 November 2015, the appellant telephoned him and asked whether the deceased had spoken to him about his will. On the prosecution case, these circumstances were relevant to the timing of the murder. The relationship between the appellant and the deceased The appellant and the deceased met in or around 2014. The circumstances in which they met are unclear. There was evidence that the appellant had told a friend, Ms Hussey, that she met the deceased at a service station one night when they were both filling their cars with petrol. However, there was also evidence that the appellant had met the deceased through a mutual acquaintance, Ms Brown, who the appellant moved in with in mid-July 2014. Soon after meeting the deceased and approximately two weeks after the appellant moved in with Ms Brown, the appellant moved into the deceased’s Morphett Vale residence. The appellant had complained about mice at Ms Brown’s house and as a result, the deceased invited her to live with him. At the time of moving out, the appellant told Ms Brown that her and the deceased were in love and that she was moving in with him. The appellant lived with the deceased until his death. At trial, there was evidence of two sides to the relationship between the appellant and the deceased. A number of witnesses, including the deceased’s family and friends, gave evidence that they appeared happy together, enjoyed each other’s company, spoke glowingly about one another and that they had plans for the future. The Court heard evidence that the appellant and the deceased had purchased a motorhome together, travelled interstate together and were renovating their home. The deceased told many of his friends that he was in love with the appellant and told three friends that him and the appellant were engaged to be married. A friend of the deceased, Ms Hussey, saw the appellant wearing an engagement ring approximately five to six months before the deceased’s death. Another friend, Mr Campanella, gave evidence that the couple discussed getting married and that the deceased wanted to get married quickly but the appellant wanted to wait until the will was signed. Despite this, the deceased did not tell any family members or close friends that he was engaged to the appellant, which, on the prosecution case, meant that he was having second thoughts about the relationship.

Evidence

Evidence Before The Court

The case against the appellant was circumstantial. It relied on 15 topics of circumstantial evidence that were to be considered in combination. Due to the nature of the appeal grounds and the submissions made by the parties, it is necessary to summarise the evidence at trial in some detail. Evidence of motive The prosecution case was that the appellant murdered the deceased because she stood to benefit financially from his death. The appellant was the sole executor and beneficiary of the deceased’s will, which was created and signed on 25 September 2015, nine weeks before the deceased’s death. The appellant was also the sole beneficiary of the deceased’s superannuation due to a binding death nomination signed on 4 October 2014. In November 2015, the deceased’s superannuation fund held a balance of approximately $175,462. Shortly before his death, there was evidence that the deceased was contemplating revisiting his will and that the appellant was aware of this. In late November 2015, the deceased asked his neighbour, Mr Geissler, for his full name, address and date of birth, as he needed to put those details in his will. Mr Geissler gave evidence that the appellant was present when the deceased made this request. The deceased’s brother, Kym Lawrence, also gave evidence that on 29 November 2015, the appellant telephoned him and asked whether the deceased had spoken to him about his will. On the prosecution case, these circumstances were relevant to the timing of the murder. The relationship between the appellant and the deceased The appellant and the deceased met in or around 2014. The circumstances in which they met are unclear. There was evidence that the appellant had told a friend, Ms Hussey, that she met the deceased at a service station one night when they were both filling their cars with petrol. However, there was also evidence that the appellant had met the deceased through a mutual acquaintance, Ms Brown, who the appellant moved in with in mid-July 2014. Soon after meeting the deceased and approximately two weeks after the appellant moved in with Ms Brown, the appellant moved into the deceased’s Morphett Vale residence. The appellant had complained about mice at Ms Brown’s house and as a result, the deceased invited her to live with him. At the time of moving out, the appellant told Ms Brown that her and the deceased were in love and that she was moving in with him. The appellant lived with the deceased until his death. At trial, there was evidence of two sides to the relationship between the appellant and the deceased. A number of witnesses, including the deceased’s family and friends, gave evidence that they appeared happy together, enjoyed each other’s company, spoke glowingly about one another and that they had plans for the future. The Court heard evidence that the appellant and the deceased had purchased a motorhome together, travelled interstate together and were renovating their home. The deceased told many of his friends that he was in love with the appellant and told three friends that him and the appellant were engaged to be married. A friend of the deceased, Ms Hussey, saw the appellant wearing an engagement ring approximately five to six months before the deceased’s death. Another friend, Mr Campanella, gave evidence that the couple discussed getting married and that the deceased wanted to get married quickly but the appellant wanted to wait until the will was signed. Despite this, the deceased did not tell any family members or close friends that he was engaged to the appellant, which, on the prosecution case, meant that he was having second thoughts about the relationship.

Decision

Reasons for decision

KELLY J
After conducting my own independent review of the evidence, I consider that it was well open for a jury, properly instructed, to conclude beyond reasonable doubt that the deceased did not knowingly consume the fatal drugs, that the appellant was the only person during the relevant period who had access to the deceased and that she was the only person who had a motive to kill him. Therefore, in all of the circumstances, it was open to the jury to conclude that the appellant had administered the drugs with the necessary intent of killing the deceased. Conclusion Given my conclusion in relation to ground 1, I would quash the conviction and order that the matter be remitted for a retrial. PEEK J: I would allow the appeal. I agree with the reasons of Kelly J. PARKER J: I agree with Kelly J that the appeal should be allowed. I would dismiss grounds 2, 3, 4 and 6 for the reasons stated by her Honour. I also agree with her Honour that it is unnecessary to consider ground 5 because the appeal should be allowed on ground 1 for the reasons stated by her Honour. I agree with the observation made by Kelly J that this was a very strong prosecution case due to the cumulative effect of the circumstantial evidence, when considered as a whole. However, Kelly J has identified shortcomings in the directions given to the jury concerning the use that they may make of the alleged lies told by the appellant and her conduct that allegedly amounted to lies. I agree with her Honour’s conclusion on that issue. For that reason, despite the strength of the prosecution case, I am satisfied that the proviso in s 158(2) of the Criminal Procedure Act 1921 (SA) should not be applied. The shortcomings in the directions given in relation to the issue of lies may have affected the assessment by the jury of the defence case. Accordingly, I cannot be satisfied that a substantial miscarriage of justice has not occurred.[8][8] Weiss v The Queen (2005) 224 CLR 300 at [45].

Ratio Decidendi

Legal Principle Established

Established by: KELLY J

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