R v Ames - [2012] SASCFC 75

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v AMES
[2012] SASCFC 75
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice David and The Honourable Justice Kelly)
21 June 2012
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - EVIDENCE - MOTIVE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - EVIDENCE - BURDEN OF PROOF
Appeal against conviction – defendant convicted of murder by judge alone – where case against defendant was circumstantial, including evidence from closed circuit television footage which detected sensor lights at the premises where the deceased was found and showed the defendant’s arrival and departure times from those premises – whether the Judge made adequate findings in respect of the mental element of the offence – whether the Judge erred in not considering the alternative charge of manslaughter - whether the Judge erred in his assessment and use of the evidence on possible motive - whether the Judge’s reasoning caused him to place the burden of proof of lack of motive on the defendant – whether the Judge erred in his use of the evidence that the defendant had failed to produce to police the t-shirt that he was wearing on the night of the deceased’s death.
Held (the Court): Appeal dismissed – the Judge should have made a specific finding as to the mental element of the offence – nonetheless, the Judge addressed the mental element of the offence of murder and was satisfied that the prosecution had proved either the intent to kill or cause grievous bodily harm – the Judge did not err in failing to consider the alternative charge of manslaughter - the Judge did not reverse the onus of proof in respect of motive – the Judge was correct to conclude on the evidence before him that the absence of evidence of motive was supportive of neither case – the Judge did not use the evidence regarding the t-shirt to enhance or bolster the prosecution case.
Criminal Law Consolidation Act 1935 (SA) s 11, referred to.
De Gruchy v The Queen (2002) 211 CLR 85, considered.

R v AMES
[2012] SASCFC 75
Court of Criminal Appeal Gray, David and Kelly JJ
GRAY J.

This is an appeal against conviction.
On 29 November 2011, following a trial before a Judge alone, Daniel Troy Ames, the defendant and appellant, was convicted of the crime of murder. The particulars alleged against him were that between 23 and 26 November 2009, the defendant murdered Allan William Ames at Cavan.
The deceased died between 9.15 pm on 24 November 2009 and 2.45 am on 25 November 2009. The body was discovered in a shed located at the rear of a property at Cavan later on the morning of 25 November 2009. The forensic pathologist’s best estimate of the time of death was at approximately midnight. The widow of the deceased telephoned the deceased on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Ames

Details

AGLC: R v Ames [2012] SASCFC 75
Case: [2012] SASCFC 75
Decision Date: 21 June 2012

CaseChat Overview and Summary

The appeal concerned a conviction for murder, where the appellant, Daniel Troy Ames, was found guilty by a judge alone of murdering his uncle, Allan William Ames. The prosecution's case was largely circumstantial, relying on evidence such as CCTV footage showing the appellant's arrival and departure from the deceased's premises, and the discovery of a significant quantity of methylamphetamine at the appellant's home, similar to that found at the deceased's property. The appeal was heard by the Full Court of the Supreme Court of South Australia.

The central legal issues before the Full Court were whether the trial judge made adequate findings regarding the mental element of murder, whether the judge erred by failing to consider the alternative charge of manslaughter, and whether the judge's assessment and use of evidence concerning motive and the appellant's failure to produce a t-shirt worn on the night of the death constituted a miscarriage of justice. Specifically, the appellant argued that the judge's reasoning may have improperly shifted the burden of proof regarding motive onto the defence.

The Full Court dismissed the appeal. While acknowledging that the trial judge should have made a more specific finding on the mental element, the Court found that the judge had adequately addressed this, being satisfied that the prosecution had proven the intent to kill or cause grievous bodily harm. The Court held that the judge did not err in failing to consider manslaughter, nor did the judge reverse the onus of proof concerning motive. The Court agreed with the trial judge's conclusion that the absence of evidence of motive, in the context of the circumstantial evidence presented, did not preclude a finding of guilt. Furthermore, the Court found that the evidence regarding the t-shirt was not used to bolster the prosecution's case.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J

Earlier in these reasons, I have set out the salient points of the prosecution case as outlined in the Judge’s reasons. No reference was made to the evidence about the t-shirt as being probative of the prosecution case. I do not accept the submission that the evidence was used to enhance or bolster the prosecution case. Conclusion For these reasons, I would dismiss this appeal. I would grant permission to appeal insofar as it is necessary to do so. DAVID J: The appellant appeals against his conviction for murder. It was alleged that he murdered his uncle at his uncle’s premises at Cavan between 23 November 2009 and 26 November 2009. He elected to be tried by Judge alone and was convicted. He now appeals against that conviction. The appeal focuses upon aspects of the trial Judge’s reasons for verdict,[11] which the appellant argues were inadequate and amounted to a miscarriage of justice requiring this Court to order a fresh trial. [11] R v Ames [2011] SASC 203.Trial I set out the Information in full:Statement of OffenceMurder. (Section 11 of the Criminal Law Consolidation Act, 1935).Particulars of OffenceDaniel Troy Ames between the 23rd day of November 2009 and the 26th day of November 2009 at Cavan, murdered Allan William Ames. The body of the deceased was found at 8:48am on 25 November 2009 at industrial premises which he owned at 14 Thomas Street, Cavan. The deceased was the appellant’s uncle. The deceased was lying on the concrete floor of a large shed located at the rear of the property. A hacksaw was located near the deceased’s right hand. Methamphetamine residue, a small hacksaw, a cutlery knife and a calculator were found on a table located near the deceased’s body. Tests of the blades of both hacksaws revealed that they both had methylamphetamine residue and a minor component of MDMA adhering to them. There was evidence that the deceased had been trading in methylamphetamine. A substantial amount of methylamphetamine (mixed with a very small amount of MDMA) was also found hidden at the home of the appellant 10 days after the death. A total of $600, consisting of 12 x $50 notes were found in the left breast pocket of the deceased’s shirt and a further $8,000 of cash was found in various parts of the deceased’s premises. Firearms and ammunition, tubs of methylamphetamine, cannabis plants and a number of unused heat-seal packs were also located on the deceased’s premises. Death was caused by a single gunshot wound to the head and the time of death was estimated as having been between approximately 9:15pm on 24 November and 2.45am on 25 November. The pathologist’s best estimation of the time of death was that it occurred at approximately midnight. The deceased’s widow gave evidence that between the hours of 1:00am and 3:00am on the morning of 25 November she telephoned her husband approximately four times but he did not answer any of those calls. The projectile which caused the death was fired from a .380 Auto pistol cartridge. The projectile was consistent with having been fired from a Remington .380 Auto cartridge case which was discovered near the deceased’s body. The firearm used to kill the deceased has not been recovered.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

The Judge then came to the following conclusion:[16]Is there any rational hypothesis consistent with the accused’s innocence?I have carefully considered all of the above matters and all of the evidence and submissions by both counsel. I have also considered whether there are other matters that can be put in favour of the accused. I have come to the conclusion that, taken as a whole, the prosecution case is cohesive and overwhelming. Any hypothesis of innocence of the accused requires such an unlikely combination of events and circumstances that it is to be dismissed as fanciful with the result that there is no rational hypothesis or reasonable hypothesis consistent with the innocence of the accused.Conclusion and verdictI conclude and find that the charge is proven beyond reasonable doubt. I find the accused guilty of murder as charged in the Information.[16] R v Ames [2011] SASC 203 at [136]-[138].Appeal There are four grounds of appeal, two of which require permission. I deal with each ground in turn.Ground 1 Ground 1 requires permission and is as follows:The Learned Trial Judge erred in his assessment and use of the evidence on possible motive.Particulars(a)The Learned Trial Judge speculated as to possible motives and then failed to give reasons as [to] what use, if any he made of the evidence. The appellant argues that the Judge erred in his direction as to possible motive. In his reasons for verdict the Judge said:[17]Motive is not an element of the crime of murder and the prosecution do not need to establish one. In the present case, a motive for the accused to murder the deceased is not readily apparent and one must not adopt a process of, or akin to, speculating upon what motive there might have been and then using such possibility as a factor to be taken into account in assessing whether guilt has been established. In the present case, there is evidence that several years before the murder of the deceased, a family squabble had developed between the deceased’s brothers in relation to a proposal by the deceased to put their mother in a retirement home which somehow involved the deceased placing a caveat on the mother’s home. This was later removed and the mother moved in with Deane Ames where she still resides. There is no evidence before me that the accused somehow bore the deceased ill will arising out of this incident and no other specific matter of enmity is demonstrated on the evidence. The evidence before me is incapable of establishing a definite motive for the accused to kill the deceased. However, one must remember that absence of evidence of motive does not equate to positive evidence that there was no motive. In the present case, the accused and the deceased were not complete strangers such that one could reasonably postulate that there could be no possible motive for the accused to kill the deceased. The accused was at the deceased’s premises for a period of about 2¼ hours on the night of his death. There was significant evidence that the deceased had been trading in methyl-amphetamine and methyl-amphetamine (mixed with a very small amount of MDMA) was found at 14 Thomas Street and near his body. There was also found on the premises of the accused at Malta Drive, ten days after the death, a substantial quantity of methyl-amphetamine (also mixed with a very small amount of MDMA). In such circumstances, it cannot be said that the absence of a known motive is a positive and significant bar to the prosecution case that the accused killed the deceased. In such circumstances, the Crown rightly submits that one simply does not know the precise relationship between the accused and the deceased. One simply cannot know whether or not the accused did have a motive to kill the deceased.and then again his Honour said:[18]I have referred to this matter above in the context of my general examination of the evidence and there is no need to repeat the matter. I note that Mr Boucaut asserted that it would be unusual for a person to kill his uncle and I take that into account for what it is worth. He also states that there is nothing alarming or unfriendly in the text messages on 24 November. He noted that one is signed off “cheers”. I afford such matters little weight. It is obvious that, speaking generally, an evil intent may be accompanied by a friendly appearance.[17] R v Ames [2011] SASC 203 at [55]-[58].[18] R v Ames [2011] SASC 203 at [128].