DPP v Stein
[2006] VSC 344
•22 September 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1454 of 2005
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PETER GODFREY STEIN |
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JUDGE: | TEAGUE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11-12, 15-16, 19, 22-25, 29 May 2006 | |
DATE OF RULING: | 29 May 2006 | |
DATE OF REASONS: | 22 September 2006 | |
CASE MAY BE CITED AS: | DPP v Stein | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 344 | |
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Criminal Law – Ruling – Case to answer
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S. Pullen S.C. | Office of Public Prosecutions |
| For the Accused | Mr W. Stuart | Victoria Legal Aid |
HIS HONOUR:
At the end of the Prosecution case, Mr Stuart, representing the accused, applied to me to rule that the accused had no case to answer as to murder and manslaughter. I ruled that there was a case to answer as to both. These are my reasons for so ruling.
As to the applicable law, I have relied on what was said in R v Doney (1990) 171 CLR 207 at pages 214-5: “If there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.” Further, in assessing the evidence, I took it that I was bound to assume that the jury would draw inferences as to intermediate facts most favourable to the prosecution. As to that, see: Case stated by DPP (No. 2 of 1993) (1993) 70 A Crim R 323.
The deceased David Macdouall was reported to the police as missing on Tuesday, 10 June 2003. The police thereafter made a number of enquiries of the deceased’s mother, friends and neighbours. The last time that the deceased had been seen was on Friday, 6 June. A check was made as to calls made by the deceased on his mobile phone on that day. A call made to that phone on that night by the deceased led the police to Catherine Doolan, a sex worker. She lived at 50 Queen Street, Ormond with the accused. The police spoke to Ms Doolan on 16 June. On 20 June, the police, on being informed of the presence of the station wagon belonging to the deceased in a laneway a short distance from 50 Queen Street, inspected it. On 21 June, the police carried out a search of 50 Queen Street, and spoke with the accused and Ms Doolan. The police were told little of assistance to their enquiries.
On 27 June, the badly burned body of the deceased was found some distance off a gravel road near Tarwin Lower in Gippsland. The body was the subject of considerable maggot activity. Professor Ranson carried out an autopsy the next day. The task of assessing the cause of death was hampered by the burning to the body, by the maggot activity and by changes due to decomposition. He was unable to form an opinion as to the cause of death. He was unable to find any significant sign of natural disease. One unusual finding was as to a piece of paper over the left eye of the deceased. It had not been substantially adversely affected by the burning of the body. On the paper had been written in capital letters the word: “KIDS”.
The police arranged for DNA analysis of various items. The items included swabs taken from the inside of the station wagon and a sample of blood taken from a syringe that was found near the site where the body of the deceased was located. The police, seeking further information, arranged to place in the “Crime-Stoppers” section in the Herald-Sun newspaper, an article about the deceased. That led to a Ms Sutherland providing a statement to the police as to the occupants of a vehicle which she had seen near Tarwin Lower on 16 June 2003. She supplemented that later by pointing out from a 12 man photoboard, the man she thought was the driver. The man to whose photo she pointed was the accused. Her statement provided an ample basis for inferring that she had seen the accused shortly before he had disposed of the body of the deceased, at which earlier time the body of the deceased had been propped up in the front passenger seat. When the DNA results were to hand, they revealed that there was a match between the DNA profile of the accused and that of the swabs taken from the car and the sample taken from the syringe found near the body.
In September 2004, the police took a number of steps that focused on Catherine Doolan. They obtained a number of statements from persons linked to her. They obtained an order for, and arranged for, the placing of a listening device in the home into which she and the accused had moved after leaving 50 Queen Street, Ormond. They arranged to place in the “Crime-Stoppers” section in the Herald-Sun newspaper on 14 September 2004, another article about the deceased. The police recorded a conversation between the accused and Ms Doolan on that day, in which there was discussion about the deceased consequent upon the article in the paper. In that discussion, the accused said a number of things about the deceased. Many were consistent with his having no part in the death of the deceased. At one point, however, he described the deceased as a pervert and a paedophile. A link was later sought to be made of that segment of the conversation with the piece of paper over the eye of the body of the deceased. On 16 September 2004, the police interviewed Ms Doolan. On that same day, the police arrested the accused, and charged him with the murder of the deceased.
Significantly, there was the evidence of Ms Doolan. She had been in a relationship with the accused for about twenty years. After working at other jobs, she became a sex worker. She routinely serviced clients in the front bedroom at 50 Queen Street, Ormond. On occasions, clients sought a bondage routine that involved the use of restraints and possibly a gag. By June 2003, she had known the deceased for some years as a regular client. She serviced him about once a month, usually at 50 Queen Street on a Friday night. He liked to talk and drink before the sex, and sometimes to watch videos. He liked to have her dress him in some of her clothes. At times, she and he had engaged in some bondage sex, during which she had been tied and gagged. At other times, she had used limited restraints on him, as by tying his wrists together.
She said that, on Friday, 6 June 2003, the deceased rang her. They arranged that he would come over to 50 Queen Street and look at videos. He arrived, bringing wine and cans of bourbon and coke. For some time, she, the deceased and the accused sat around, talking and drinking and watching videos. The deceased talked of his sexual interests, including bondage. She and the deceased eventually moved into the bedroom. There, she spoke of the possibility of a bondage threesome, with she and the deceased being joined by the accused. The deceased agreed to that, and paid her $400. She told the accused what was agreed. The deceased wanted her to dress him up, as she had often done before. He snorted some amyl nitrate, a sexual stimulant, as he had often done before. She tied him up. She used leather restraints and rope tied to his two wrists and two ankles, and then to the four legs of the bed.
She then called in the accused. He came into the bedroom wearing a raincoat. He went out again and returned with two handkerchiefs to use as a gag on the deceased. She saw him go up to the deceased, with the two handkerchiefs. He proceeded to tie them on the deceased as a gag. He did not do so violently or aggressively. Shortly after the tying was completed, she saw on the part of the deceased what she took to be a panic attack. She saw the deceased breathing hard and fast. She saw his eyes flutter. She said something to the accused like: “Watch out” or “ Take care.” He mumbled something apparently in reply. She was not able to make out what he said. She felt panicky and left the bedroom.
After leaving the bedroom, she moved around the lounge and other rooms. She heard no noise from the bedroom. She could not recall the accused coming out of the bedroom. Perhaps 5 or 6 hours later, when it was coming on light outside, she opened the door to the bedroom and looked inside. It was not a long look. She saw that the accused, still in the raincoat, was standing away from the foot of the bed. She saw the deceased on the bed. He was not moving. There were no restraints on him. She could not tell if he was asleep or dead. She saw no signs of blood or of violence. That was the last time that she saw the deceased. She packed some bags. She arranged to be collected. She stayed away for two nights. She then rang for the accused to collect her to take her back to 50 Queen Street. He came to collect her in the station wagon of the deceased. Back at 50 Queen Street, she did not go back into the bedroom for some days. At one stage, the accused said to her that the deceased had died of a heart attack.
Mr Stuart’s submissions to me focused on the claimed inadequacies in the Prosecution case by reason of inadequacies in the evidence of the two witnesses, Ms Doolan and Professor Ranson. In short, it was put by Mr Stuart that: the prosecution could not point to a specific act causing death; nor could it point to a specific cause of death; there was a reasonable possibility that death had been caused from arrhythmia; there was the absence of evidence of a traumatic injury; the only evidence of motive was the highly questionable linking of the eye patch on the body of the deceased with the covertly taped conversation; on the other hand, there was considerable evidence consistent with a consensual sexual session; there was nothing done or said by the accused to Ms Doolan or to anyone else that suggested that the accused had any intention of harming the deceased.
The prosecution case was that the jury could infer from the evidence of Professor Ranson taken with other evidence, including that of Ms Doolan, that the act of the accused in applying the gag and leaving it in place had been a substantial cause of the death of the deceased by asphyxiation. Ms Pullen submitted that a scrutiny of the evidence of Professor Ranson showed that he had assessed as very low, the level of possibility of cardiac arrhythmia or of a vaso-vagal attack or any of the other possibilities raised in cross-examination. There was, in my opinion, scope for different conclusions to be drawn from the evidence of Professor Ranson if looked at in isolation. The jury had additional evidence than that of Professor Ranson that it could draw on.
The jury does not have to be satisfied with precision of either the act causing death or the actual or principal cause of death. See Royall v The Queen (1991) 172 CLR 378, R v Butcher [1986] VR 43, R v Moffatt (2000) 112 A Crim R 201. I was satisfied that the jury would be entitled to find that the application and no-removal of the gag had made a substantial contribution towards the death of the deceased. The jury had evidence that the deceased was restrained. A jury would be entitled to find that a person who is restrained is less capable to taking remedial action. Then there was the evidence of Ms Doolan that the accused applied the gag. That a gag can be a mechanism that can cause or contribute to death might be treated as a matter of experience, but here the jury had the benefit of evidence from Professor Ranson as to the potential effect of leaving on a gag. The jury also had the evidence as to the deceased showing signs of distress, and of the accused taking no immediate step to address the distress by removing the gag. The jury also had evidence from which the inference could readily be drawn that that deceased died within a period of minutes or hours after Ms Doolan had left the room, given that on her account, the accused remained in the room for some hours.
There was greater strength in the submissions of Mr Stuart directed to the issue of the paucity of evidence as to the deceased being shown to have had the requisite intent for murder. The focus of Ms Pullen’s submission in that regard was on what she put forward as compelling evidence of motive. She argued that the jury was entitled to place considerable significance on two pieces of evidence taken together. The first was as to the “KIDS” paper over one eye of the deceased. The second was the remarks made by the accused in the covertly recorded conversation with Ms Doolan as to the deceased being a paedophile. Ms Pullen did not seek to argue that there was evidence of specific intent otherwise that the evidence of motive to be drawn from the link pieces of evidence. Mr Stuart argued that there was an insufficient basis for leaving the matter to the jury. After reflection, and given that the test that I am required by the authorities to apply as to the drawing of inferences that favours the prosecution position on the hearing of a no case submission, I was satisfied that the matter was properly to be left to the jury.
In the course of submissions, reference was made by both counsel as to how the jury could treat evidence of after events conduct and specifically the evidence that the accused had later disposed of the body of the deceased. It was accepted by Ms Pullen, in the light of the decision in R v Heyes [2006] VSCA 86, that that conduct could not be relied on by the prosecution as evidence of murder as distinct from as evidence of participation in an unlawful killing.
Applying the principles as referred to above, to the evidence as I have summarised it above, I concluded that there was a case to answer both as to murder and as to manslaughter.
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