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 four occasions between 1.00 am and 3.00 am at the premises at Cavan and the deceased did not answer.
The defendant was with the deceased from 9.52 pm until 12.14 am on 24 and 25 November 2009 and he was the last known person to have seen or spoken to the deceased. Sensor lights were activated at the Cavan premises and the footage recorded on closed circuit television from a neighbouring premise showed the defendant’s arrival and departure. Following the defendant’s departure, the sensor lights were not further activated at the Cavan premises that morning.
Closed circuit television footage taken at the home of the defendant on 24 and 25 November 2009 showed that the defendant changed his clothes between 9.19 pm and 9.35 pm prior to his departure at about 9.40 pm. Following his departure from the Cavan premises at 12.14 am, he returned to his home, changed into different clothes and then left his home premises at 12.57 am, returning at 2.56 am.
The Judge found that there were two sensor lights at the Cavan premises. One operated from the rear shed and the other from the front shed. The lights were located so as to be activated by persons walking through the front gate past the first shed and toward the large rear shed. They also activated when persons walked in the opposite direction. Both sensor lights were in proper working order on 24 and 25 November 2009.
Both sensor lights came on when the deceased went to the front gates to allow the defendant entry at 9.56 pm. The sensor lights continued to go on and off during the time when the defendant was at the premises. However, at 11.04 pm, both sensor lights were off and remained off until 12.04 am. At that time the rear sensor light came on. The front sensor light then came on at 12.13 am. The closed circuit television footage showed that at this time the defendant was leaving the premises. He left by the front gate and drove off. As mentioned earlier, neither of the sensor lights came on again following his departure.
The Judge made a further finding that the sensor lights had not been disabled in some way and noted in particular that the sensor lights continued to work subsequent to 25 November 2009.
The findings outlined in the preceding paragraphs were not challenged on the appeal.
The Judge, by reference to a number of the matters discussed above, as well as other matters, summarised the prosecution case as follows: [1]
[1]    R v Ames [2011] SASC 203, [52].
The prosecution case is that a conclusion that the accused murdered the deceased is inevitable on the basis of all of the evidence and inferences including the following:
-      The accused was the last known person to have seen or spoken to the deceased while he was alive.
-      The accused was with the deceased from 9.52pm until 12.14am, a period of about 2¼ hours.
-      The best estimate of Dr Gilbert of the time of death is 12 midnight (although a later time is possible).
-      The widow of the deceased commenced to telephone the deceased from 1am to 3am. None of the calls were answered, with the inference suggested by the prosecution being that the deceased was dead by 1am.
-      When the accused arrived at 9.52pm and left at 12.14am, the sensor lights activated on both occasions due to movements on the premises but they did not come on again after the accused had left. This tends to indicate, first, that the deceased was not moving around the premises after the accused had left and, second, no other person attended at the premises until the body was later discovered.
-      A theory of a killing in the course of a robbery by a stranger with a firearm is fanciful in the light of the fact that $600 was found in the deceased’s wallet which was on his person and would have been located by the most superficial search. Other cash to the total of $8,000 was found in various parts of the premises and there was no indication on the deceased’s body of the kind of assault or torture that one might expect to have been applied by a criminal prepared to kill to persuade the deceased to produce money if he were suspected to have it. A number of firearms were found at the premises and some were quite easily seen in the in situ photographs but were not taken.
-      There was an inference of an association between the deceased and the accused to be drawn from the facts in that the deceased was in possession of methyl-amphetamine (mixed with a very small amount of MDMA) at the time of his death and a substantial amount of methyl-amphetamine (mixed with a very small amount of MDMA) was found hidden at the home of the accused ten days after the death.
-      CCTV footage recorded at the home of the accused during 24 and 25 November 2009 shows that between 9.19pm and 9.35pm the accused changed from the clothes that he was wearing (“outfit 1”) to different clothes (“outfit 2”) prior to his departure at about 9.40pm for 14 Thomas Street where he arrived at 9.52pm. After leaving 14 Thomas Street at 12.14am and returning home, he again changed into still different clothes (“outfit 3”) prior to again departing the premises at 12.56am and later returning again at 2.56am.
-      When interviewed by police on 5 December 2009, the accused clearly lied in stating that he had only been in the company of the deceased for 20 to 25 minutes on 24 November 2009. The prosecution submit that his lies on this topic evinced a consciousness of guilt.
-      The accused also stated that he returned home by the same route that he came, namely via Port Wakefield Road. This is shown to be false by the records of a Safe-T-Cam situated on Port Wakefield Road which recorded the south bound travel of the accused’s vehicle but did not record the claimed north bound travel. The time taken by the accused to return from 14 Thomas Street to his home (about twelve minutes) was significantly greater than the usual time for travel between those two points (about five minutes) and is consistent with an immediate disposal of the firearm by the accused.
-      When requested by police on 5 December 2009 to produce the clothes he was wearing at the time of his visit to 14 Thomas Street, the accused stated that the top he had been wearing was a black long sleeve tee shirt (which corresponded to “outfit 2” referred to above) but claimed to be unable to find it.
-      On 5 December 2009, samples were taken from a number of locations in the accused’s Navara vehicle and were tested for gunshot residue. It was said that two of the samples were found to be consistent with gunshot residue. (The admissibility of this evidence was challenged by Mr Boucaut and I will consider this matter below).
The defendant did not give evidence and called no other evidence in the defence case.
The Judge noted that the prosecution case was based on circumstantial evidence. The Judge described the premise of the prosecution case in the following terms – where the hypothesis of innocence requires the concurrent existence of a number of different matters, the unlikelihood of all such matters having occurred being seen to be so great that the hypothesis of innocence becomes so improbable as to be dismissed as fanciful or, as sometime expressed, as not a rational hypothesis.
The Judge rejected the prosecution case insofar as it was asserted that the evidence established that the defendant had, on several occasions, lied out of the consciousness of guilt. The Judge further found that no weight could be attached to the evidence said to establish that gun shot residue was found in the defendant’s motor vehicle.
The Judge ultimately concluded that there was no rational hypothesis or reasonable hypothesis consistent with innocence. The Judge’s finding was in the following terms:[2]
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.
[2] R v Ames [2011] SASC 203, [136].
The Judge considered and rejected as unreasonable the hypothesis of a random thief or drug addict being responsible for the death of the deceased:[3]
This still leaves, of course, the hypothesis of the random thief, perhaps a drug addict who has heard of the deceased’s reputation. But again, there are real problems with such theories. Such a person would have to be familiar with the property, succeed in getting onto the property without tripping either light, entering the shed of a security conscious man with firearms nearby, killing the deceased with a firearm he happens to have, and then leaving the property once again without tripping either light, all of this in the dark. Theories of using a ladder to access the gap above the blue door and then descending on to the floor are all very well but such access was unlikely to occur undetected and without the deceased having the chance of resorting to one of his weapons to defend himself.
Further, one can hardly divorce from consideration the intransigent fact that such person fails to take the $600 in the shirt pocket of the deceased (which would have been found on the most cursory inspection of the body) or any of the various firearms available.
[3] R v Ames [2011] SASC 203, [73]-[74].
The Judge at the outset of his reasons addressed the elements of the crime of murder in unexceptional terms. The Judge recorded that the prosecution had to prove each of the elements beyond reasonable doubt. In particular, on the question of intent, the Judge said:[4]
… the act or acts of the accused which caused the death were carried out with the intention of either killing the deceased or at the very least causing him grievous bodily harm by which I mean really serious bodily harm. The intention necessary for the crime of murder must exist at the time when the act or acts which caused the death were carried out; …
The Judge ultimately concluded:[5]
I conclude and find that the charge is proven beyond reasonable doubt.
I find the accused guilty of murder as charged in the Information.
The Appeal
[4] R v Ames [2011] SASC 203, [43].
[5] R v Ames [2011] SASC 203, [137]-[138].
The Mental Element
Counsel for the defendant submitted that the Judge did not make a finding that the defendant had an intention to kill or cause grievous bodily harm. Nor had the Judge, it was said, considered any question of recklessness. It was contended that it was necessary for the Judge to make a specific finding as to intent before this Court could sustain the conviction. It was further contended that the Judge at no stage considered the circumstances in which the particular offence occurred other than that the defendant must have been present at the time and that the fatal shot was not fired at close range – that is, less than a metre from the deceased.
Counsel for the defendant submitted that the lack of any finding as to the mental element of murder left open the further question as to whether or not the Judge had considered the alternative verdict of manslaughter at all. Attention was drawn to the evidence of the forensic pathologist that there were minor bruises and abrasions on the body of the deceased that could have been caused prior to death and in the course of some assault. An item of jewellery said to have come from the deceased was on the floor of the shed at Cavan. Counsel suggested that the combined effect of these matters provided some evidence of a struggle.
It was argued that the complete absence of any consideration of the above matters gave rise to a risk that a miscarriage of justice may have occurred. It was contended that the combination of these errors required a consideration of the proviso and that a retrial should be ordered.
The Director submitted that the Judge had correctly directed himself as to the elements of the charge of murder and had noted that all of the elements had to be proved by the prosecution beyond reasonable doubt. Before coming to his final conclusion, it was pointed out that the Judge reiterated that he had carefully considered all of the above matters. The Judge then proceeded to find that the charge was proved beyond reasonable doubt. The Director submitted that although the Judge did not specifically find whether there was an intention to kill or cause grievous bodily harm, it was enough for the Judge to find either of those states of mind proved to make out the charge. It was said that the Judge’s conclusion that the charge was proved demonstrated that he had accepted that one or other of those mental states had been established.
The reasons of the Judge need to be understood, addressed and considered in the context of the trial. The primary issue at trial was one of identity; that is, did the defendant fire the shot that killed the deceased. Senior counsel at trial representing the defendant did not suggest at any time during his final submissions that there had not been a murder. There was no submission or even any suggestion that a verdict of manslaughter was open on the evidence. The essence and thrust of the defence submission was that the prosecution had not proved beyond reasonable doubt that the defendant was the person who fired the shot that killed the deceased.
At several times during the course of the defence submissions, reference was made by the Judge to the “murder” of the deceased and on one occasion, reference was made to the “murder” by senior counsel for the defendant. The prosecution in its final submission did not address the mental element of the crime of murder.
The above circumstances provide an explanation for the failure of the Judge to specifically make findings as to the element of intent. Shortly stated, it was not an issue at trial that the deceased had been murdered. The trial was fought out on the basis that it had not been proved that the defendant was involved in the deceased’s death.
The issue on appeal had the hallmark of a new point being raised by different counsel – a point not raised at trial. Senior counsel appearing for the defendant on the appeal had not appeared at the trial.
To my mind, the trial Judge should have made a specific finding as to the mental element of the offence. In a judge alone trial, a judge is obliged to give reasons for the verdict entered. Had this been a trial before a judge and jury, the judge when summing up would have been required to direct the jury that they had to be satisfied beyond reasonable doubt as to each element of the charge, including the element of intent. In circumstances where the question of intent was not in issue, the Judge would probably suggest to the members of the jury that they would have little trouble in the circumstances making that finding, but they would still need to address the element of intent and be satisfied that the prosecution had made out its case.
Notwithstanding the topic not being expressly stated, I have reached the conclusion that the trial 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. I consider that as the Judge earlier directed himself as to each of the elements of the offence of murder and the need for each element to be proved beyond reasonable doubt it is necessarily implicit in the Judge’s ultimate finding that the offence had been proved beyond reasonable doubt. The context of the trial and the final submissions provide a ready explanation for the course followed by the trial Judge. However, I endorse the observations of David J that it would have been desirable for the Judge to have made specific findings as to each of the elements of the offence of murder as charged.
Reversal of Onus
Counsel for the defendant on the appeal submitted that the Judge, having correctly directed himself that motive was not an element of the crime of murder and that the prosecution did not need to establish motive, went on to reason implicitly that the defence had not proved an absence of motive. Counsel submitted that the Judge’s reasoning in this respect had the effect of placing a burden of proof of lack of motive on the defendant. Attention was drawn to the following paragraphs in the Judge’s reasons:[6]
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.
…
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.
[6] R v Ames [2011] SASC 203, [55]-[58], [128].

In De Gruchy,[7] Gaudron, McHugh and Hayne JJ addressed the absence of proved motive and whether the absence of proof provides any support to a defence case, and observed:[8]
[7] De Gruchy v The Queen (2002) 211 CLR 85.
[8] De Gruchy v The Queen (2002) 211 CLR 85, [28]-[32].
Motive, if proven, is a matter from which a jury might properly infer intention, if that is in issue, and, in every case is relevant to the question whether the accused committed the offence charged. As was observed by Lord Atkinson in R v Ball:
"Evidence of motive necessarily goes to prove the fact of the homicide by the accused ... inasmuch as it is more probable that men are killed by those who have some motive for killing them than by those who have not."
So, too, absence of motive is equally relevant to the question whether the accused committed the offence charged and, as observed by Menzies J in Plomp v The Queen, "is commonly relied upon as a circumstance tending in favour of ... a person accused of a crime".
Although absence of motive is relevant, the appellant's argument overlooks a critical distinction between absence of proven or apparent motive, on the one hand, and proven absence of motive, on the other. In the present case, there was no evidence of motive, which is not the same thing as proven absence of motive. And although the character evidence called on behalf of the appellant tended to negate possible motive, it by no means established the absence of motive.
The absence of evidence of possible motive is clearly a matter to be taken into account by a jury, particularly in a case based on circumstantial evidence. However, if, as in the present case, the prosecution does not have to establish motive, it is difficult to say that the absence of evidence in that regard is a matter of "positive significance", either in the sense that it is a weakness in the prosecution case or a strength in the defence case. It might be otherwise if there were positive evidence that the accused lacked motive. However, that would be a most unusual case. The present is not a case of that kind. It is simply a case where there was no evidence of motive.
It clearly appears from the trial judge's directions that much emphasis was placed on the absence of motive in defence counsel's final address. Apart from instructing the jury, correctly, that the prosecution did not have to prove motive, nothing was said by the trial judge to detract from the force of defence counsel's submissions in that regard. Moreover, given the trial judge's repeated directions that the question of "disturbed mind" was irrelevant, it is not to be supposed that the jury might have thought that, on that account, the absence of evidence as to motive on the part of the appellant could be ignored.
Neither prosecuting counsel's reference to a disturbed mind nor anything else in the case required any specific direction with respect to motive other than that motive was not an essential element of the crime charged and, thus, did not have to be established by the prosecution. Indeed, had the trial judge gone beyond that, it would have been necessary to direct the jury that there was no evidence of motive on the part of the appellant, rather than an absence of a motive on his part. Such a direction would not have assisted the defence case.
[Footnotes omitted.]
In my view, the Judge in the present proceeding did not reverse the onus of proof. The Judge was correct in determining that the absence of proved motive was not of positive significance in the case, either as a weakness in the prosecution case or a strength in the defence case. The approach of the Judge did not depart from the extracted observation from De Gruchy.[9]
[9] De Gruchy v The Queen (2002) 211 CLR 85.
Later Conduct
The final complaint advanced on the appeal related to comments made by the Judge concerning the defendant’s change of clothing following his return to his home from the Cavan premises. These comments in particular were directed to the defendant’s failure to produce the t-shirt – a black long sleeved t-shirt that he was wearing on the night of the death of the deceased – to police when they spoke to him more than a week later. In this respect, the trial Judge observed:[10]
I consider that the evidence is at least consistent with a wish by the accused to distance himself from possible evidence of the murder (including evidential material deposited on his clothes or transference from his clothes to the murder scene) and an intention to at some time destroy any such evidence by disposing of the clothing that he had worn during the murder.
It was submitted that this was after-the-event conduct from which the Judge drew an inference of guilt. It was said that to have used the evidence in this way without making necessary findings was an error. Further, it was said that the Judge erred by not considering innocent explanations for the defendant’s statement.
[10] R v Ames [2011] SASC 203, [101].
The Director accepted that it was not part of the prosecution case that any inference of guilt could be drawn from the evidence about the defendant’s conduct with respect to the t-shirt. It was submitted that the Judge did not use the evidence in this way. It was pointed out that in the Judge’s view, this evidence was consistent with the prosecution case. The Director submitted that there was no attempt by the Judge to use the evidence to enhance the prosecution case or to take it any further.
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 Offence
Murder. (Section 11 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Daniel Troy Ames between the 23^rd day of November 2009 and the 26^th 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.
It was an agreed fact that the appellant had been at 14 Thomas Street between 9:52pm on 24 of November and 12.14am on 25 November and that, during this time, his Nissan Navara twin cab utility was parked immediately outside the premises. This was in contrast to his interview with the police on 5 December 2009, when the appellant stated that the duration of his visit to 14 Thomas Street on 24-25 November was “maybe 20 to 25 minutes”[12] and that he was home after leaving 14 Thomas Street by “say quarter to ten I spose”.[13]
[12] Exhibit P50: Record of interview with Daniel Troy Ames p 26.
[13] Exhibit P50: Record of interview with Daniel Troy Ames p 32.
The prosecution case was an entirely circumstantial one which rested predominantly upon the fact that the appellant was the last person known to have seen the deceased alive. On the prosecution case, closed circuit television footage from Cross Cranes, a business premises which was situated at 13 Thomas Street, on the opposite side of the road to 14 Thomas Street, demonstrated that no other person entered the deceased’s premises between the time the appellant left at 12:14am on 25 November and when the deceased’s body was discovered at 8:48am.
The main mode of access to the large rear shed in which the deceased’s body was discovered was by a path which ran from Thomas Street via a large sliding gate.
Access to the larger shed could also be gained from the neighbouring property to the east, 12 Thomas Street, via a blue door. The blue door was fitted with a simple lock. When inspected by police on 25 November 2009, the blue door was found to be locked and there was no sign that the lock had been forced. The soil adjacent to the outside of the blue door appeared undisturbed.
A gap in the iron above the blue door also offered a possible access point to the large shed (although this was likely to have required the use of a ladder). The police inspection on 25 November 2009 found no evidence that there had been ingress or egress by this route.
Two sensor lights, one operating from the rear shed (the rear sensor light) and the other from the front shed (the front sensor light), were installed at 14 Thomas Street and were properly working on 24 and 25 November 2009. The sensor lights would be activated by persons walking through the front gate, past the first shed and towards the large rear shed (or, in the opposite direction).
Footage from the Cross Cranes CCTV system was tendered during the trial. The footage was from a camera directed towards the front yard of the Cross Cranes premises. The camera captured images of some of the premises at 14 Thomas Street, as well as part of Thomas Street itself, on the evening of 24 November 2009 through to the discovery of the deceased’s body the following morning.
The Cross Cranes CCTV footage showed that the rear and front sensor lights came on and went off as the deceased left the premises at 9pm and again upon his return to 14 Thomas Street at 9.09pm. The sensor lights did not operate in his absence during that period. There was evidence that the deceased left the premises during this period to sell a quantity of methylamphetamine to a person who lived at the end of Thomas Street.
The sensor lights came on again at 9:56pm when the deceased went to the front gate to allow the appellant to enter. The sensor lights continued to turn on and off whilst the appellant was on the premises. From a period of one hour between 11:04pm and 12:04am, both sensor lights were off. At 12:04am the rear sensor light came on and at 12:13am the front sensor light came on as the appellant was in the course of leaving the premises. He left the premises and drove off. Neither of the sensor lights came on again after his departure.
There was evidence that the sensor lights continued to work subsequent to 25 November 2009. On the prosecution case, the fact that the sensor lights did not come back on again after the appellant left indicates firstly, that the deceased was not moving around the premises after the appellant had left (because he was dead), and secondly, that no other person attended at the premises until the body was discovered at around 9:00am on the morning of 25 November.
In his interview with police the appellant stated that when he left 14 Thomas Street the deceased followed him to front of the premises and locked the gate. The Cross Cranes CCTV footage shows that at 12:13:53am the rear sensor light goes off before the appellant walks towards his car. The rear sensor light does not come on again. The front sensor light remains on as the appellant approaches his car, and then goes off by 12:14:30am. On the prosecution case, the deceased could not have shut and locked the gate after the appellant exited as this would have required the deceased to have walked from the gate back to the rear shed, where his body was discovered. On the prosecution case, this would have activated the rear sensor light which had turned off at 12:13:53am and, most likely, also activated the front sensor light after it went off at 12:14:30am. Neither of these lights came back on following the appellant's departure.
The appellant had CCTV recording equipment installed at his house at 30 Malta Drive, Parafield Gardens. The recorded footage and 29 still photographs taken from that footage were tendered in evidence.
The CCTV footage from the appellant’s home reveals that he wore a total of three different outfits between 7:20pm on 24 November and 3:04am on 25 November. The first outfit consisted of a camouflage top, knee length pants and sandals.
At 9:40pm on 24 November 2010 the appellant’s CCTV showed him leaving his house bound for 14 Thomas street wearing “outfit 2” which consisted of a black long sleeve tee shirt, full length pants and moccasins. The appellant stopped en route to 14 Thomas Street at the BP service station on the eastern side of Port Wakefield Road to purchase fuel. CCTV footage from the service station showed that the appellant was still wearing “outfit 2”.
The appellant’s trip from his home to 14 Thomas Street, including his stop to purchase fuel, took a total of 12 minutes. The appellant’s vehicle was captured travelling south of Port Wakefield Road by a “Safe-T-Cam” situated near Globe Derby Park. The Safe-T-Cam continuously monitored all north and south bound vehicles.
The CCTV equipment at the appellant’s house shows him returning home at 12.26am on 25 November 2009. On the basis that it was agreed that the appellant left 14 Thomas Street at 12:14am, the appellant took approximately 12 minutes to return home.
The appellant stated in his police interview that the drive from his home direct to 14 Thomas Street would usually take about 5 minutes. The appellant was adamant that he went home from 14 Thomas Street by the same route he had come. The appellant’s vehicle was not recorded travelling north on Port Wakefield Road at the Safe-T-Cam near Globe Derby Park. This is the same camera that had earlier captured him travelling south on his way from his home to 14 Thomas Street.
The CCTV at the appellant’s home shows that having arrived home at 12:26 am, he again left home some 20 minutes later at 12:57am, this time wearing a third outfit consisting of a top with “No 96” on the back, full length track pants and sandals rather than moccasins.
The CCTV footage shows the appellant arriving back at his home at Malta Drive at 2.56am, still wearing “outfit 3”, the “No 96” shirt and sandals.
In his interview with police, the appellant stated that he wore a pair of black tracksuit pants and a long sleeved t-shirt during his visit to 14 Thomas Street. The appellant produced a number of pairs of black tracksuit pants but stated that he was unable to find the long sleeved t-shirt he had been wearing during his visit to 14 Thomas Street.
The appellant elected not to call or give evidence.
The Judge’s reasons for verdict
I deal briefly with the Judge’s reasons by way of summary, but will return in more detail to aspects when dealing with the grounds of appeal.
The trial Judge correctly summarised the evidence as presented including the family relationship between the appellant and the deceased, the finding of the body of the deceased and observations of its position and the immediate surroundings, and the cause of death (which was a single gunshot wound to the head, death being almost instantaneous). The Judge then correctly summarised the post mortem examination of Dr Gilbert and the ballistic evidence, none of which was in dispute. The Judge then accurately dealt with and set out the layout of the premises. His Honour then dealt with the question of whether the deceased died because of suicide or because of accident and came to the conclusion that it had been proved beyond reasonable doubt that the deceased did not commit suicide or shoot himself by accident. There was no dispute about those findings.
The trial Judge then directed himself as to the law in unexceptional terms, about which there is no dispute. He also correctly directed himself about the onus of proof.
The trial Judge then carefully outlined the course of the trial and set out an overview of the prosecution case.[14] Having done that, he then directed himself in the following terms:[15]
It is necessary to examine carefully all of the evidence in order to determine what evidence is to be accepted and then to consider what inferences can be safely drawn from that evidence. Finally, the totality of the accepted evidence and the inferences that may safely be drawn from it must be considered in the context of the question of whether the charge that the accused is guilty of the crime of murder is proven beyond reasonable doubt.
The case against the accused is entirely circumstantial. As stated above, the accused is not to be found guilty unless there is no reasonable explanation of all the accepted evidence, other than that the accused is guilty of the crime of murder. To put that another way, if there remains any reasonable hypothesis of his innocence, the accused must be acquitted.
[14] R v Ames [2011] SASC 203 at [51]-[52].
[15] R v Ames [2011] SASC 203 at [53]-[54].
The trial Judge then dealt with the question of motive, to which I will return. He dealt with the fact that the deceased was alive shortly before the appellant arrived at 14 Thomas Street and then found, consistent with Dr Gilbert’s evidence, that the approximate time of death was midnight, with a range of error of plus or minus 2.8 hours – making the time of death roughly from 9:15pm to 2:45am. He then dealt with the unanswered telephone calls from the wife of the deceased and summarised the behaviour of the sensor lights at 14 Thomas Street on the night in question, as I have already outlined.
The trial Judge then pointed out the inconsistency between the appellant’s statement to police that the deceased came to the gate to see him off when he left and the behaviour of the sensor lights. The trial Judge found that if the appellant had been accompanied by the deceased to the gate and the deceased walked back to the shed from that gate, the sensor lights would have come back on. The trial Judge then dealt with various movements of the appellant and set out in his reasons the changes in clothing made on the night by the appellant, as set out above.

His Honour then pointed out certain inconsistencies between the appellant’s record of interview at 9:50am on 5 December 2009 and the objective established facts. He pointed out that the appellant said to police that the duration of his visit to the deceased’s premises on the evening in question was “maybe 20 to 25 minutes” and that he left that premises at “say a quarter to ten I spose”. Both statements were contradicted by an admission made by the defence during the course of the trial that the visit lasted for two and a half hours and that the appellant left the premises at 12:14am on 25 November. The trial Judge found that such discrepancies were not due to a mistake or faulty memory, but were deliberate lies. However, the trial Judge further directed himself that he did not use those lies as demonstrating a consciousness of guilt, but they went to question of the credibility of the appellant when giving his statement to police.
His Honour then considered the question of whether the deceased’s death was part of a robbery and rejected such a theory as fanciful because there was still $600 in the deceased’s shirt pocket.
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 verdict
I 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].
Ms Davison SC, counsel for the appellant, argues that as there was no evidence of any established motive for the appellant to kill the deceased, there was no reason for the trial Judge to speculate as he did that there may be a motive. However, despite the observations of the trial Judge that there had been family problems concerning a caveat on his mother’s home between the deceased’s brothers, that the deceased and the appellant were obviously known to each other, and the fact that there were questions of drug trafficking, he nevertheless came to the conclusion that he could not decide the question of motive one way or the other. It therefore became a neutral factor and, according to the trial Judge, assisted neither the prosecution nor the defence. It is clear, therefore, that on the material before him the trial Judge could not find evidence to support either a motive or the absence of a motive, even if the latter is something that could support the defence case.[19]
[19] De Gruchy v The Queen (2002) 211 CLR 85 at [30].
In my view the trial Judge has not erred. I would refuse permission to appeal on this ground.
Ground 2
Ground 2 is as follows:
The Learned Trial Judge erred in relation to his use of the statement by the Applicant that he was unable to find the t-shirt during the search on 5.12.09.
Particulars
(a)The Learned Trial Judge has used the statement as a post conduct admission without finding it was a proven lie or;
(b)considering any innocent explanations for the statement; and
(c)the Learned Trial Judge assumes the Applicant’s involvement in the offence before properly assessing the evidence.
The trial Judge found that, at one period of time on the night in question, the appellant was wearing a long-sleeved black t-shirt. This was evident from the CCTV footage from both the appellant’s home and the BP service station where the appellant stopped to purchase fuel on his way to the deceased’s premises. When questioned by police on 5 December 2009, the appellant agreed that that was the case. When police searched the appellant’s premises on that same day he produced a number of pairs of pants matching the general description of the pants he was wearing that night, but stated that he was unable to find the t-shirt that he was wearing. In relation to that topic, his Honour in his reasons said:[20]
I also note that the accused later asserted to the police during their search on 5 December 2009 that, as to the pants that he had been wearing during his visit to 14 Thomas Street, he stated that “black trackies, mate that’s all I fucking wear”[21] and produced multiple pairs of pants matching that general description. As to the shirt that he had been wearing, he stated that it was a long sleeved tee shirt but that he was unable to find it.
I consider that the evidence is at least consistent with a wish by the accused to distance himself from possible evidence of the murder (including evidential material deposited on his clothes or transference from his clothes to the murder scene) and an intention to at some time destroy any such evidence by disposing of the clothing that he had worn during the murder.
(Footnote in original)
[20] R v Ames [2011] SASC 203 at [100[-[101].
[21] Exhibit 50: Record of interview with Daniel Troy Ames p 56.
Ms Davison now argues that the reasons of the trial Judge which allowed him to reach that conclusion are inadequate. She points out that he has made no finding that the appellant’s asserted inability to find the t-shirt was in fact a lie as distinct from the truth, he did not consider the question as to whether there was any innocent explanation as to why he could not find the t-shirt, and it was an impermissibly gigantic step to come to the conclusion that upon that evidence one could infer that the appellant had an intention to destroy any relevant evidence by disposing of the clothing he had worn during the murder.
It is also difficult to know whether the trial Judge treated the conclusion he came to about the t-shirt as evidence of a lie or evidence of post offence conduct (the hiding or destruction of evidence) demonstrating an implied admission. Ms Davison argues that the inadequacy of the reasoning, coming to the conclusion he did, amounted to an error.
This ground of appeal has caused me great concern. However, looking at the case as a whole, I am of the view that the above paragraphs do not amount to a finding that either the appellant lied or that it was used by the trial Judge as positive evidence of guilt. The trial Judge based his decision on the strong circumstantial case involving the movements of the appellant, the admission that he was the last person to see the deceased, and the behaviour of the sensor lights as set out above. The fact that he considered that the evidence about the t-shirt is “at least consistent etc” indicates that that was not one of the pieces of evidence upon which he relied for the purposes of finding guilt. It would, of course, have to be more than “at least consistent” for it to be used in that way. I find that it was a remark in the narrative of events which could not have affected the Judge’s ultimate conclusion.
I would dismiss this ground of appeal.
Grounds 3 and 4
I deal with both of these grounds together and set them out in full:
3.The Learned Trial Judge has failed to provide reasons for his verdict in respect of his findings as to the elements of the offence of murder.
4.The Learned Trial Judge has failed to consider the alternative offence of manslaughter.
Ground 4 requires permission.
Ms Davison argues that the whole of the Judge’s reasons involve finding it proved beyond reasonable doubt that the appellant shot the deceased and killed him. That conclusion is based upon circumstantial evidence as set out above. Ms Davison argues, however, that in his reasons the trial Judge has not taken the next step of making findings as to the appellant’s state of mind when he shot the deceased and whether those findings may allow for a verdict of manslaughter.
It is conceded by the respondent that there were no such findings. It would have been better if there were. However, in the nature of the evidence led in this case, I am of the view that this Court can safely conclude that the trial Judge had found it proved beyond reasonable doubt that when the appellant was alone with the deceased and shot him in the head, the appellant had the appropriate intention to make out the crime of murder as distinct from any other alternative charge or complete acquittal. Once the Judge made the findings that he had, that was the inexorable conclusion that he would have come to.
I would dismiss Ground 3 and I would refuse permission to appeal on Ground 4.
Conclusion
I would dismiss the appeal.
KELLY J: I would dismiss this appeal. I agree with the reasons of Gray and David JJ.