R v Allen - [2010] SASC 236

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Voir Dire (Murder))
R v ALLEN
[2010] SASC 236
Reasons for Ruling of The Honourable Justice Vanstone
26 July 2010
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE
CRIMINAL LAW - EVIDENCE - RELEVANCE - PARTICULAR CASES
CRIMINAL LAW - EVIDENCE - HEARSAY - PARTICULAR MATTERS
Accused charged with murder - application by defence for exclusion of evidence of statements made by deceased to witnesses as to the cause of injuries sustained prior to her death - application for exclusion of witnesses's observations of injuries from time to time - whether statements made by deceased and observations of witnesses admissible.
Held: the statements made by deceased were inadmissible hearsay - observations of injuries to deceased were relevant and admissible - no need for direct proof that accused caused those injuries.

EVIDENCE - WITNESSES - CROSS-EXAMINATION - AS TO CREDIT - ON FORMER STATEMENTS
Defence sought to put an out of court statement to an expert witness - terms of s 28 of Evidence Act - whether witness had "formerly made a statement inconsistent with his present testimony".
Held: statement could not be put to the witness because he had not given any evidence contradictory to it.
Evidence Act 1929 (SA) s 28, referred to.
T (a child) v The Queen (1998) 20 WAR 130; Wilson v The Queen (1970) 123 CLR 334, discussed.

R v ALLEN
[2010] SASC 236
Criminal
Reasons for ruling on admissibility of evidence

VANSTONE J: Prior to the jury being empanelled I heard argument on matters raised in a Rule 9 Notice filed on behalf of the accused.
The Rule 9 Notice was not filed within the time required by the Rules, but no issue was taken about that and I dispense with that requirement.
Objection is taken to two topics of evidence, those topics being touched on in the statements of a number of witnesses. The first topic is statements of the deceased made to other persons as to the cause of injuries that she had sustained. It is said that the evidence is hearsay and is therefore inadmissible. The second objection goes further. It is said that all evidence of injury sustained by the deceased prior to the events leading to her death is inadmissible, being irrelevant. In the alternative, it is argued that even if the evidence has some relevance, it should be excluded in the exercise of my discretion, as being more prejudicial than probative.
I deal first with the question of relevance and admissibility of statements made by the deceased about the cause of her injuries. These statements were in the nature of testimonial or assertive statements. Mr Nitschke, who appeared for the prosecution, put that it was not sought to lead the statements for the purpose of proving their truth; merely that they were relevant to prove the deceased’s state of mind at the time when the statements were uttered. He argued that the deceased’s state of mind was relevant to the quality of the relationship she had with the accused. He conceded that the deceased’s state of mind was not, standing alone, of direct relevance in this trial. To elaborate, Mr Nitschke argued that the prosecution was not, by the introduction of this evidence, seeking to prove that the accused was responsible for the injuries seen at various times on the deceased’s body, as her statements suggested, but rather relied on the mere fact that she spoke words attributing the injuries to him. The relevance lay in the fact that she was prepared to make allegations of this sort about her husband, and that she thought ill of him. In other words, the statements were original evidence of the deceased’s state of mind in relation to the accused.
Mr Nitschke referred to an authority of the Western Australian Court of Appeal, namely T (a child) v The Queen (1998) 20 WAR 130. There, the accused and deceased had been living in a relationship for several years. In the weeks leading up to her death, the deceased was heard to say things such as that she did not wish to continue with the relationship, that she was dissatisfied with the relationship and that she wanted to go out more and that the accused did not.
In my view that case is not of assistance here. The sorts of statements there referred to are more in the nature of statements of contemporaneous state of mind. They are not statements amounting to an account of a previous event involving the speaker and the accused.
Of assistance in this area is the High Court authority of Wilson v The Queen (1970) 123 CLR 334. There the applicant was convicted of the murder of his wife. There were no eye-witnesses. She had been shot with a firearm, the discharge of which the applicant claimed was accidental. At the time of sustaining an injury the deceased was driving a tractor drawing a load of hay. The applicant had borrowed a shotgun from a neighbour and said that he had placed it on top of the load of hay. He claimed he had not discharged the gun and that it must have discharged accidentally. The prosecution wished to adduce evidence that on an occasion sometime prior to the death, a witness had heard the applicant and deceased quarrelling and had heard the deceased say to the applicant “I only know you want to kill me for my money”. Another witness said that on a later occasion there had been a quarrel between the deceased and the applicant and the applicant had pushed her to the ground without cause. While on the ground she had uttered the words “I know you want to kill me, why don’t you get it over with”. The Court held that the nature of the relationship between the applicant and the deceased was relevant in considering whether the Crown had proved that the gun was deliberately discharged by the applicant, with the intention to kill the deceased. Barwick CJ said, at 339, that the evidence was admissible on general principles because it was relevant to explain the occurrence and to assist in the choice between the two possible explanations of what had occurred.
As can be seen, the statements admitted in Wilson’s case are of a different quality from the statements sought to be adduced here.
In my view the testimonial statements sought to be adduced here are only relevant if they are used for their truth. I reject Mr Nitschke’s argument that it is enough to go to prove the deceased’s state of mind at the time they were said. No doubt the statements did reflect her state of mind at an earlier time. However, her then state of mind, without more, is not relevant to a fact in issue.
I turn then to the second topic of evidence, namely injuries observed on the deceased’s body. This evidence is given by the deceased’s mother, her brother and a doctor whom she consulted, as well as several persons who were the deceased’s work colleagues and friends. The occasion of the injuries was, mainly, in the few months leading up to her death. Although the accused and the deceased were married, they separated in April 2008, but were still in regular contact. By far the most serious of these injuries were seen by the deceased’s mother and brother on an occasion which the deceased’s mother puts at 16 May 2008. The deceased’s brother, Marcus Koch, described the injuries as follows:
I saw bruising around her neck where Kane had tried to strangle her. Mel [the deceased] was struggling to walk. I asked Mel what had happened but Mel wouldn’t tell me. I did see a metal fire poker in the lounge room and the handle was broken off.
In another statement the deceased’s brother gave further description of the injuries. He said:
When I first saw her come out of the bathroom I noticed that she was limping as she walked. Mel was wearing a red dressing gown. … I saw that Mel was limping really badly and she had a lot of trouble getting into my ute. … She had a lot of trouble getting out of my car and even more getting into the 4-wheel drive. She was limping and it looked like her hip was hurting.
I saw marks on her neck like just below her chin. The marks were red and sort of just starting to bruise and they started from one side of the jaw and went around to the other jaw. She was still trying to cover them up.
The deceased’s mother, Mrs Rigby-Meth, also observed that the deceased was limping when she first saw her at Burra. She said that the following morning:
She had multiple scratches on her face and the backs of her hands. One of her ears was bruised, the whole top of her ear, she complained about her head and ear hurting. There were bruises on her neck, they almost looked like love bites, one either side of her neck. I saw a bruise on her lower leg, a plain black circle about the size of a 20 cent piece. There were lumps on her head. I could see she had a sore thigh, she was limping and couldn’t sit down properly. She wouldn’t show me this so I’m not sure if there was any bruising.
Mr Morrison, who took this argument on behalf of the accused, submitted that unless the prosecution could show a link between all the marks and the accused, in the sense of some evidence suggesting that he was responsible for them, then the evidence was not admissible.
I agree that ultimately the jury would have to reach a view that some or all of the marks were caused by the accused, before they could base any inferences upon that evidence; although, I would not direct the jury about that in terms of any standard of proof. The jury would be entitled to rely on the description of the injuries, and circumstantial evidence bearing on the question of the cause of the injuries, as well as using their own experience of injuries to themselves and others, seen in everyday life. I consider that there is sufficient evidence on the papers to enable the jury to conclude that the marks seen on the deceased’s body were caused by the accused. If they were unable to find a nexus, then the marks would simply be irrelevant and would fall away from the jury’s deliberations. I do not accept that there would be any residual prejudice in those circumstances, because it would be open to the jury to find that the marks were as a result of accident, or even perhaps self-infliction. However, in a case where the two competing theories are suicide and murder, it seems to me to be fundamental that the jury should have before them evidence of these marks. Observation of the marks could be seen to raise the unlikelihood that the deceased committed suicide, as opposed to being killed by the hand of another.
Again, statements of principle in Wilson’s case are helpful. There, in justifying the admission of the evidence, Barwick CJ said, at 338-9, that evidence of the relations between the accused and deceased might be admitted, not only for its relevance to the question of motive, but might also be admitted to explain the acts charged. The Chief Justice went on:
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.
…
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.
Menzies J, with whose reasons McTiernan and Walsh JJ agreed explained the relevance in this way, at 344:
Any jury called upon to decide whether they were convinced beyond reasonable doubt that the applicant killed his wife would require to know what was the relationship between the deceased and the accused. Were they an ordinary married couple with a good relationship despite differences and disagreements, or was their relationship one of enmity and distrust? It seems to me that nothing spoke more eloquently of the bitter relationship between them than that the wife, in the course of a quarrel, should charge her husband with the desire to kill her. The evidence is admissible not because the wife's statements were causally connected with her death but to assist the jury in deciding whether the wife was murdered in cold blood or was the victim of mischance.
As I have said, the evidence under consideration in Wilson’s case was utterances by the deceased which were overheard by others. In this case, the relevant evidence is signs of injury to the deceased, which in only one case are directly linked with the accused. However, in my mind there is no relevant distinction to be drawn. Just as in Wilson’s case the evidence was relevant to the question of whether the deceased’s death was caused by an accidental discharge of a firearm, so in this case is evidence of injuries previously sustained by the deceased relevant to whether the death was caused by suicide or unlawful killing.
Accordingly, evidence of injury observed on the deceased’s body will be admitted, irrespective of whether there is direct evidence linking those injuries to the accused’s actions.
These are my reasons for ruling as I did.
Ruling in relation to putting an out of court statement attributed to Dr Gilbert
Dr Gilbert performed the autopsy on the body of the victim in this matter. The examination took place in Adelaide two days after the death. Various police officers were present during the examination, including Brevet Sergeant Fitzpatrick of the Major Crime Investigation Branch. Two statements of Sergeant Fitzpatrick have been filed. They speak to his observations made during the autopsy and of things said by Dr Gilbert during and after the examination.
Dr Gilbert gave evidence in the trial at some length. He expressed the opinion that the victim died as a result of neck compression. He based that opinion upon his finding of petechial haemorrhages in and about the eyes of the body and also upon the ligature mark around the neck. Dr Gilbert identified some 28 sites of injury to the body. He provided a body chart (exhibit P18) indicating their location and he gave quite detailed evidence about each injury.
During his evidence-in-chief, starting at page 680 of the transcript, Dr Gilbert was asked to assume two different series of facts. The first scenario was based, at least in part, on a description given by the accused of the way in which he claimed to have found the deceased’s body in her garage. That scenario involved what Dr Gilbert came to describe as “a hanging from a high point of suspension”. The noose, which was said by the accused to have been found around the deceased’s neck, was in evidence and was described as a “running noose”. On the basis of that series of facts, Dr Gilbert expressed the view that he would not have expected to find the ligature mark below the thyroid prominence, or Adam’s Apple. Additionally, he said that it was unusual to find fractures of the cricoid cartilage in a hanging. He had not ever seen that before. Second, he would not have expected the ligature mark around the neck to be nearly horizontal. Both findings were in fact made by him at post-mortem examination.
The second series of assumptions involved direct pressure to the deceased’s neck, using a ligature of some sort. That is the second scenario. It did not include a hanging. Dr Gilbert expressed the view that on these assumptions the track of the ligature mark could be anywhere on the neck, but a lower level was more likely. He also said, at page 685, that in these circumstances the ligature mark would be “more nearly horizontal”. He also said that the second set of assumed facts would better accommodate his findings of bruising to the strap muscles of the neck and bruising overlaying the 7^thcervical and 3^rdthoracic vertebrae, which latter finding was unusual in a hanging.
In his cross-examination, Dr Gilbert was closely questioned as to other possible assumptions which could have given rise to the physical irregularities, both internal and external, which he observed on the body. At no point in his evidence was he asked to express a view about whether any of the injuries could have been self-inflicted, or were attributable to suicide.
Prior to Dr Gilbert giving evidence and at page 563 of the transcript, and again during Dr Gilbert’s evidence, at page 716, Mr Boucaut, for the accused, indicated in the absence of the jury that he planned to put to Dr Gilbert that he had told Sergeant Fitzpatrick that whilst Ms Allen had sustained some unusual injuries, he believed that Ms Allen’s death was caused as a result of her having hung herself. That assertion is directly taken from the statement of Sergeant Fitzpatrick of 14 May 2010.
I suggested to Mr Boucaut that he was not yet in a position to put such a prior inconsistent statement, because, as Dr Gilbert’s evidence stood, there was no statement or opinion which the assertion to Sergeant Fitzpatrick could contradict. I referred Mr Boucaut to s 28 Evidence Act 1929. For convenience, I set out that section.
28—Proof of contradictory statements of adverse witness
If any witness, upon cross-examination as to a former statement made by him, relative to the subject matter of the cause, and inconsistent with his present testimony, does not distinctly admit that he has made the statement, proof may be given that he did in fact make it; but before such proof can be given, the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made the statement.
I suggested to Mr Boucaut that, before utilising s 28, there would need to be evidence from Dr Gilbert that in his opinion, his findings excluded suicide, page 717 of the transcript. There was also discussion of the issue of whether a question by Mr Boucaut designed to elucidate that might be objectionable, because it would go to the ultimate issue in the case. The matter was left for further consideration over the lunch break and then aired again, at page 721. At that point Mr Boucaut indicated that he was not going to ask such a question of Dr Gilbert. He maintained the view that Dr Gilbert had already, implicitly, expressed the view that suicide was excluded.
The question for decision was whether, using the words of s 28, Dr Gilbert had formerly made a statement “inconsistent with his present testimony”. In my view he had not. In evidence he had spoken of the unusual nature of some of his findings and indeed of the rarity of some of them, given the assumed facts based on the accused’s statement to police. In addition, he had remarked upon the number of external injuries raising the prospect of a struggle. However, nowhere had he expressed the view that the findings he made excluded suicide. In those circumstances, I ruled that the out of court statement attributed to Dr Gilbert could not be put to him.
It may well be that had Mr Boucaut asked Dr Gilbert whether, having performed the post-mortem examination, he excluded suicide, the question would have been objectionable. It could have been objectionable on the basis that it was seeking some sort of value judgment on the probabilities of the unusual findings he made occurring in this particular suicide, or it might have been objectionable on the basis that it raised the ultimate issue. As far as the latter goes, I acknowledge that there are authorities going either way on the propriety of such a question. In any event, as mentioned, Mr Boucaut abandoned the attempt to pursue the out of court statement in the face of my ruling.