R v Allen

Case [2011] SASCFC 40

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v ALLEN

[2011] SASCFC 40

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice Kelly and The Honourable Justice Peek)

3 May 2011

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PARTICULAR CASES - WHERE APPEAL DISMISSED

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - OTHER CASES

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - ALTERNATIVE VERDICTS - DIRECTIONS TO JURY - WHERE EVIDENCE POINTS TO MURDER OR NOTHING

Appeal against conviction – where appellant convicted by jury of murder of his wife – where alleged that appellant strangled his wife and faked a hanging suicide – whether trial Judge gave adequate directions relating to out of court statements by the appellant to the police – whether trial Judge gave adequate directions as to onus of proof and circumstantial evidence – whether trial Judge adequately put the defence case to the jury – whether evidence of marks and injuries observed upon the deceased properly admitted at trial – whether trial Judge gave adequate directions in relation to relationship evidence – whether trial Judge misdirected or failed to adequately direct in relation to manslaughter.

Held: (Kelly J, Doyle CJ concurring, Peek J dissenting)

Appeal dismissed – trial Judge adequately directed the jury in relation to out of court statements by the appellant – trial Judge adequately directed the jury in relation to onus of proof and circumstantial evidence - defence case was put fairly and adequately before the jury – trial Judge adequately directed the jury in relation to manslaughter – a single slip by the trial Judge could not have given rise to a miscarriage of justice.

Held: (Kelly J, Doyle CJ concurring, Peek J not deciding) - evidence of marks and injuries observed upon the deceased properly admitted – trial Judge adequately directed the jury in relation to marks and injuries.

Held: (Kelly J, Doyle CJ concurring, Peek J) - trial Judge did not err in directing jury that they were entitled to use their own experience in order to interpret the evidence of observations or marks and injuries on the deceased.

CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - POWERS OF COURT ON APPEAL - TO CONSIDER FRESH EVIDENCE

Application to amend grounds of appeal to insert ground in relation to directions given about forensic pathologist’s evidence - application to adduce fresh evidence in relation to forensic pathologist's evidence.

Held: (The Court) – application to amend refused – application to adduce fresh evidence refused.

(Kelly J, Doyle CJ concurring) – trial Judge’s summary of pathologist’s evidence was careful, comprehensive and balanced – nothing in evidence sought to be led inconsistent with pathologist’s evidence at trial.

Juries Act 1927 (SA) s 55, referred to.
R v Weetra (2010) 108 SASR 232, distinguished.

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AGLC
R v Allen [2011] SASCFC 40
Case
[2011] SASCFC 40
Decision Date

CaseChat Overview and Summary

The appellant, R v Allen, appealed against his conviction by a jury for the murder of his wife. The central dispute concerned the cause of the deceased's death, with the prosecution alleging the appellant strangled his wife and faked a suicide by hanging, while the defence contended the deceased committed suicide. The appeal was heard by Doyle CJ, Kelly and Peek JJ.

The legal issues before the court included whether the trial judge provided adequate directions to the jury regarding the appellant's out-of-court statements to the police, the onus of proof, circumstantial evidence, and the defence's case. Further issues concerned the admissibility and directions relating to evidence of marks and injuries on the deceased, and the "relationship evidence" presented by the prosecution. The court was also asked to consider whether the trial judge adequately directed the jury on the alternative verdict of manslaughter.

The court dismissed the appeal, finding that the trial judge's summing up, when considered as a whole, was clear, comprehensive, and accurate. The judges noted that the relationship evidence, including prior injuries and incidents, was admissible as it was relevant to assisting the jury in choosing between the competing explanations for the deceased's death, consistent with established authority. The court also found that the trial judge had properly directed the jury on the use of this evidence, requiring them to be satisfied of the appellant's responsibility for the injuries before considering them. The court expressed a view that lengthy summings up are not always beneficial and that the trial judge's succinct yet comprehensive directions were appropriate for the duration of the trial.

Orders

Orders of the court

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Background

Background to the litigation

At the hearing of the appeal the appellant sought permission to add a further ground of appeal allied to the complaint in ground 4, that the trial Judge failed to adequately direct the jury about the circumstantial evidence. In relation to the proposed new ground of appeal the appellant sought to introduce fresh evidence in relation to Dr Gilbert’s evidence, for the purpose of showing that there was a real risk that the jury were misled as to the effect of his evidence either by a misinterpretation or misconstruction of it by the trial Judge in her summing up. I propose to deal with this application when discussing ground 4.Factual Background Before turning to the specific grounds of appeal it is convenient to summarise the evidence relevant to the grounds of appeal. The prosecution case against the appellant was circumstantial. The appellant and the deceased were married in 2006. There was evidence that by early 2008 there were some difficulties in the marriage and in April of 2008 the parties separated and the appellant moved out of the matrimonial home. The deceased consulted a lawyer in early June 2008 about separation and property matters. On 27 July 2008 the deceased died from neck compression. The prosecution presented its case to the jury on the basis that the deceased was strangled by the appellant at approximately 1 pm on that date. It was the defence case that the deceased committed suicide by hanging herself and the appellant found the deceased in a shed at the rear of her home. The prosecution led evidence about the state of mind of the deceased in the days and weeks prior to 27 July 2008 from which it invited the jury to draw the inference that the deceased’s state of mind was not such that she would commit suicide. There was also a body of evidence led about the relationship between the appellant and the deceased which the prosecution alleged established that the relationship had been a volatile one and that the appellant had in the past been violent to the deceased. There was also evidence from three witnesses who heard the scream of a female which corresponded with the time when the prosecution said the deceased must have died. The screaming included a cry for help. Ms Dennis, a next door neighbour, described the female’s scream as a bloodcurdling scream coming from the deceased’s shed and a male voice then saying in a harsh whisper “you fucking cunt”. Then there was silence. Other witnesses, who were fishing on a beach where the gulf meets a creek in the area adjacent to the houses where the deceased and the witnesses lived, heard a female screaming for help four or five times. The screams heard by the people fishing were such that they stopped fishing and ran back up the cliffs to try and pinpoint where the screams came from. Evidence was led of three conversations the appellant had with police. Two of those conversations resulted in statements being prepared which were signed by the appellant. He admitted being with the deceased until about 12 noon on the day of her death. Initially he planned to return to the deceased’s house at about 5 pm but changed his mind and decided to return about 2 pm when he found the deceased hanging in the shed. He told police he pulled her down and then attempted to revive her by applying cardiopulmonary resuscitation. In his conversations with the police the appellant admitted to being violent towards the deceased in the past. He did not give evidence at his trial. Ground 1: Out of Court Statements Made by Appellant

Evidence

Evidence Before The Court

I would dismiss this ground of appeal.Grounds 5, 6 and 7: Relationship Evidence Grounds 5, 6, and 7 raise for consideration the admissibility of and directions in relation to the evidence of marks, bruises and injuries observed by others on the body of the deceased. First it was said that the trial Judge applied the wrong test in admitting the evidence of those injuries at the trial. There was a further complaint that, the evidence having been admitted, the trial Judge misdirected the jury in telling them that they were free to use their own experiences to determine whether or not there was a connection between the injuries and marks seen on the deceased and the appellant. It was complained that in giving that direction the trial Judge effectively invited the jury to reason by way of propensity. The first point which needs to be noted is that the remarks of the trial Judge complained of formed part of a general direction to the jury on the approach it should take to the evidence about the relationship between the appellant and the deceased. Those remarks included a specific direction to the jury that it was necessary for them to be satisfied first that the appellant was responsible for all or any of the injuries on Ms Allen before they could use them. The trial Judge directed the jury that if they were not so satisfied then they were to disregard the evidence of those injuries entirely. However the admissibility of this evidence and the directions must be assessed against the background of the issues which arose at the trial. This was a case where there were two competing versions of how the deceased died. There was no dispute that the cause of death was neck compression. The prosecution case was that the appellant killed the deceased by strangling her with some form of ligature. The defence case was that the deceased committed suicide by hanging herself. There can be no doubt that the relationship between the appellant and the deceased was a relevant issue at the trial. It is therefore unsurprising that the prosecution sought to lead evidence of the appellant’s behaviour towards the deceased in the months prior to her death. That evidence came in the form of observations of others of various marks and injuries seen on the deceased in late 2007 and early 2008, an incident which occurred in about May 2008 and a text message sent by the appellant to the deceased in April 2008. The submission that this evidence was not admissible and that the trial Judge applied the wrong test in determining to admit it, is contrary to well established authority. In Wilson v The Queen[6] Barwick CJ said:No doubt in the text books it is the inference of motive which is said to be open on evidence of bad feelings between the parties or of the terms on which they have lived. See Hale, Pleas of the Crown, vol. 1, p. 451, Halsbury's Laws of England, 3rd ed., vol. 14, par. 491, Phipson on Evidence, p. 151. But it is clear that such evidence may also provide material on which the fact of the killing may be inferred. See for example per Lord Atkinson in R. v. Ball; per Sir Lyman Duff. It is not in my opinion only in those cases where the evidence of the relations of the accused with others tends to establish motive that it is admissible though that may be the commonest case of its use and the one with which the reported cases have had mostly to deal. If the evidence does tend to explain the occurrence, or, as in this case, to assist the choice between the two explanations of the occurrence, then in my opinion on general principles, because it is relevant, it is admissible. Of course if it does not have that relevance it is inadmissible. Of that kind was the evidence in R. v. Barbour. It is not that all evidence of the relationship of the parties is admissible, but only that from which a relevant inference may logically and reasonably be drawn. Here, there is no question of the remoteness in point of time of the occasions of which evidence of quarrelling was tendered and the time of the act charged, as was the case in Reg. v. Tsingopoulos. Here the evidence was of quarrelling and bad relationship over a considerable period stretching up to the time of the death of the deceased. In my opinion, the evidence of the relations which had developed between the applicant and his wife was admissible.[Footnotes omitted][6] Wilson v The Queen (1970) 123 CLR 334 at 339.

Decision

Reasons for decision

KELLY J PEEK J (dissent)
I would refuse permission to appeal on this ground.Conclusion Some of the grounds of appeal which have been advanced in respect of this matter underscore the importance of assessing a summing up in a criminal trial as a whole and in the context of the real issues which arose at the trial. When the summing up in this matter is read as a whole it can be seen that the trial Judge explained to the jury all of the critical issues for their determination, both factual and legal, in a clear, comprehensive, and succinct manner. In more recent times there has been a marked trend towards lengthier summings up both on factual and legal issues. It is open to question whether juries are capable of absorbing in any meaningful way directions which sometimes extend for many many hours sometimes for days. The need for such lengthy directions when the trial has lasted only for two or three weeks must be seriously doubted. Against that trend the summing up in this trial stands as an example that a summing up in a criminal trial of relatively short duration can be both succinct as well as comprehensive, clear and accurate. For these reasons I would dismiss this appeal. This is an appeal against a conviction of murder.Introduction The appellant was convicted by a jury of the murder of his wife who died on 27 July 2008 from neck compression associated with trauma most likely applied through the medium of a rope found near her body. A major issue in the case is whether the trauma was applied through a suicidal hanging or strangulation by another person. At the time of her death, Mrs Allen was 25 years old and the appellant had just turned 29. She and the appellant had commenced a relationship in the year 2000, lived together in a jointly owned house at Osborne Street in Port Augusta since late 2002 (with some temporary separations) and married in July 2006. The parties had separated in April 2008 with Mrs Allen remaining in the former matrimonial home and the appellant moving out, but with the parties continuing to have contact with each other. Evidence was led that Mrs Allen had suffered injuries during the course of the relationship and it was the prosecution case that the appellant was responsible for these injuries, such evidence being admitted as “relationship evidence” which could be taken into account in relation to the issue of whether the appellant had killed Mrs Allen. However, there was also evidence that Mrs Allen had exhibited significant signs of depression prior to her death, a matter upon which the appellant relied as supporting the hypothesis of suicide. The appellant denied any involvement in the death. However, if the jury rejected that denial, a further issue arose as to whether the acts of the appellant were accompanied by the required mental intent for either murder or manslaughter. The jurors retired to consider its verdict at 11.18am on 20 July 2010 and deliberated for the whole of that day[29] until they were permitted to leave court at 4.56pm pursuant to an order made under s 55 Juries Act 1927 (SA). They resumed deliberation at 10am on 21 July 2010 until returning a verdict of guilty of murder at 12.41pm on that day.[30][29] The jury returned to Court during the course of the day in relation to questions that they posed. [30] The jury returned to Court during the course of the day to hear passages of transcript read.The events of 27 July 2008

Ratio Decidendi

Legal Principle Established

Established by: KELLY J,

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