R v Anderson

[1998] QCA 63

IN THE COURT OF APPEAL	[1998] QCA 063
SUPREME COURT OF QUEENSLAND

C.A. No. 388 of 1997

Brisbane

Before Fitzgerald P.
McPherson J.A.
Williams J.

[R. v. Anderson]

THE QUEEN

v.

RODNEY GEORGE ANDERSON

Appellant

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 17 April 1998

The circumstances giving rise to this appeal are set out in the reasons for judgment of Williams J. I agree with his Honour that the convictions of the appellant were not unsafe or unsatisfactory, and that his appeal must be dismissed.

The appellant mistakenly believed that the murder victim was his aunt and, for reasons which do not now matter, professed hatred towards her while denying that he would ever harm her. However, he admitted that he had been to her home on two occasions, once about 20 years and once about three years before she was killed. He claimed that he did not see her on either occasion.

News of the victim’s death was telecast less than 24 hours after her death. Shortly afterwards, the appellant contacted police. He placed himself in the vicinity of the victim’s home at the time when the offences were probably committed. According to his statements, he had possession of a car at that time. He falsely said that his nephew, Wesley Brown, was with him in the car. And he falsely sought to implicate another nephew, Norman Pyne. Before this Court, the appellant’s thesis was that he is of low intelligence and suggestible, and that his only knowledge of the offences was derived from the media and that his conduct merely indicated a desire for attention. A much more probable explanation of his behaviour is that he was seeking to divert attention from himself as the offender.

I do not propose to discuss what the appellant’s argument described as credible and compelling alibi evidence. The reasons for judgment of Williams J. demonstrate that such a description of the evidence in question is quite inaccurate. More significant to my mind is that the appellant’s own statements put himself in the vicinity of the victim’s home at the time when the offences were committed.

The appellant later deviated from his initial denial of guilt, implicit in his false claim that, as he and his nephew, Wesley Brown, drove past the victim’s home at about the critical time, he saw a person resembling his nephew, Norman Pyne, run across the road in front of the car. He admitted that he was guilty of attempted arson but not of murder. Again, he was plainly lying. His story was that he went to the victim’s home and tried to start a fire at the request of his nephew, Norman Pyne, who told him that he had broken and entered the premises. Norman Pyne was at all material times at Gosford in New South Wales.

Another principal component of the appellant’s case was that the admissions which he made were inaccurate in many respects in that details which he gave did not correspond with matters established by other evidence. That was a matter for the jury to consider, but far from sufficient to require a conclusion that a reasonable jury, acting reasonably, could not have been satisfied beyond reasonable doubt of the appellant’s guilt. Assuming that the appellant’s errors were genuine, his confusion about the interior of the victim’s home and associated matters was insufficient, alone or in combination with other matters, to necessarily raise a doubt as to his guilt.

The appellant’s other grounds of appeal emphasised that he was not connected to the offences by forensic evidence, which, it was submitted, suggested the involvement of some other person. The latter premise lacks any substantial foundation, while the former, as appears from the reasons for judgment of Williams J., merely demonstrated that police investigators did not take steps which apparently were open to them; for example, footprints at the scene of the crimes were not analysed.

While the appellant probably would have escaped detection if he had not made his first approach to police with his false story, it by no means follows that he was not guilty or that there is necessarily a reasonable doubt concerning his guilt. Although the prosecution case might be described as untidy, there was ample basis for the jury’s verdicts.

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 17 April 1998

The fundamental question at the trial of the appellant was whether it was he or someone else who had murdered Ethel Adamson probably on Wednesday night of 21 June 1996 at her home in Beaudesert Road, Moorooka. There was no direct evidence that it was he who had killed her. In theory, she could have been murdered by any unidentified intruder. The prosecution case against the appellant was in that respect entirely circumstantial; but it was nevertheless unusually strong. It rested on the extreme improbability of its being anyone else who had killed her.

There was evidence that some time before Mrs Adamson was killed, the appellant had become preoccupied, if not obsessed, with her. He believed, quite erroneously, that she was his mother’s sister and, as such, his aunt. He had collected information about her, including her birth certificate, which, objectively speaking, showed that this was not so. In the course of being interviewed, he disclosed to the police that he hated his mother for having put him out for adoption and so deprived him of a normal childhood. At the same time, he seems to have been under the impression that Mrs Adamson had somehow been responsible for his mother’s death or disappearance. While denying he would have hurt her, he admitted that he hated Mrs Adamson “to a certain point”. He claimed to have gone to her house only once about twenty years before, and again more recently on another occasion about three years ago.

What the foregoing evidence tends to suggest is a connection between the appellant and Mrs Adamson, and a possible motive for killing her, that was not shared by others. Standing alone, it would, however, have fallen well short of sufficing to put the appellant on trial for murdering her. There is nevertheless a good deal more. On the day after the killing, the appellant volunteered to the police that on the evening of Wednesday 21 June 1995 he had driven along Beaudesert Road in which Mrs Adamson’s house was located. That was a surprising coincidence, seeing that he lived many miles away and that he said he had only been there twice before; but he claimed to have recognised the house from a picture shown on television in connection with a report of the murder.

The appellant also claimed that as he was driving past the house he had seen a man resembling his cousin Norman Pyne running across the road from the direction of the house. He provided the police with details of Norman Pyne, whom he described as very violent. Pyne did in fact have a criminal record; but he also had a complete alibi for the occasion when the murder took place, having at the time been in New South Wales and well away from the scene of the crime. The appellant nevertheless persisted in making suggestions that Pyne was the person likely to have been responsible for the murder. He claimed that Pyne had telephoned him on the Wednesday night from the house in Beaudesert Road, saying that he was in trouble and needed help. In consequence, the appellant had gone to the deceased’s house; but, on arriving there, he found that Pyne had already left the house.

The appellant said that at the house he saw an old lady on the floor in the bedroom. He also said he had tried to set fire to the house in order to burn it down. When asked how he had tried to set fire to it, he referred to a heater and newspaper. An electric heater was found in the house, plugged in and lying on its back, covered in newspapers in an apparent attempt to set fire to them. It is true that his account to the police located the heater in the wrong room; but it does not detract from the fact that he knew details about the house and its layout that were not disclosed by the television report of the murder.

On this evidence, the jury would plainly have been justified in concluding that the appellant was at the house of Mrs Adamson at about the time she was killed. He had, as the reasons of Williams J. demonstrate, therefore not only the motive but also the opportunity for killing her. The jury were entitled to take the view that the appellant’s attempts to implicate Norman Pyne in the murder were strong evidence pointing to the guilt of the appellant himself; and that discrepancies in the various accounts he gave of his presence at the house and of what he did there bore the interpretation that he was attempting, even if ineffectually, to fabricate explanations in order to shift suspicion away from himself. It would have been a quite extraordinary coincidence if the appellant had, for no particular reason, happened to go to the house on the very night on which Mrs Adamson had been murdered by someone else. Given the failure of his attempt to implicate Norman Pyne as the murderer, there was no rational explanation of why the appellant should have been at the house on that occasion other than that it was he who killed Mrs Adamson.

For these reasons and those given by Williams J., I agree that this appeal should

be dismissed.

JUDGMENT - WILLIAMS J

Judgment delivered 17 April 1998

After a trial the appellant was convicted of murdering Ethel Adamson on or about 21 June 1995 and of attempting unlawfully to set fire to a dwelling house on or about that date. He seeks to have each of those jury verdicts set aside on the ground that it is unsafe and unsatisfactory; the following particulars of that ground are set out in the Notice of Appeal:

(i)         credible and compelling alibi evidence called by the Prosecution was placed before the jury;

(ii)        conversations between the appellant and investigating Police officers in the form of statements and formal interviews suggested that the appellant could not have been at the premises where the offences had occurred;

(iii)	comprehensive forensic evidence called by the Prosecution showed no connection between the appellant and the offences;
(iv)	comprehensive forensic evidence called by the Prosecution suggested the presence of another party or parties at the premises where the offences had occurred. On 22 June 1995 at about midday police discovered the body of the deceased in

the bedroom of her home. She had been viciously assaulted but the medical evidence suggested that death was probably not immediate. There was a possibility she had also been sexually assaulted; her panties had probably been removed. The evidence from Dr Ansford, a forensic pathologist, was to the effect that death had mostly likely occurred between 9 p.m. on 21 June and 1 a.m. on 22 June. His evidence was that the fatal blows had probably been inflicted between half an hour to four hours before death. The argument for the prosecution at trial focussed on the period 11 p.m. to midnight as the “window of opportunity” for the appellant to have committed the offences.

When police examined the deceased’s residence at 357 Beaudesert Road, Moorooka, they found that an electric heater had been switched on and paper placed on or near it in an apparent attempt to cause a fire. The heater was in one room and the cord stretched from that room across a hallway and into another room where the power point was located. There was some charring of the papers near the heater but no significant fire resulted.

The appellant, a man in his mid forties, resided at the time with relatives at 2 Horton Street, Kingston. The evidence was that by the most direct route the distance between 357 Beaudesert Road and 2 Horton Street was approximately 19 kilometres, and took approximately twenty minutes to drive at the speed limit. It was generally accepted on the hearing of the appeal that the only way the appellant could have got from his residence to 357 Beaudesert Road was by motor vehicle.

Early in his submissions counsel for the appellant referred to what he described as “compelling evidence” that the attack on the deceased occurred between 8.30 p.m. and 9 p.m. on 21 June. That was a significant element in the appellant’s argument because his alibi evidence was stronger for the time frame 8.30 to 9 p.m. than it was for the Crown’s preferred time frame of 11 p.m. to midnight.

There was an area of land, variously described as a vacant allotment, easement or walkway, between the deceased’s residence and that of the witness, Mrs Luppi. The latter’s yard was fully enclosed by fencing which retained her German Shepherd- Rottweiler dog. The evidence from Mrs Luppi was that she put her daughter to bed at about 8.30 p.m. on 21 June and shortly thereafter the dog started barking; “it was a different bark, like he was barking savage.” That continued for about ten to fifteen minutes. She said that whilst doing so the dog was running up and down the fence line nearest the deceased’s residence as if she wanted to get at something in that direction. Mrs Luppi neither heard nor saw anything unusual around the deceased’s residence at that time; there is no suggestion that she heard any noise coming from the deceased’s residence.

Mrs Luppi conceded that the dog often barked at pedestrians using the walkway, but she suggested that this barking and reaction was somewhat different. Though she did not expressly say so in her evidence, the inference was open that there was no similar barking episode between 11 p.m. and midnight.

Counsel for the appellant relied solely on evidence of the barking dog in order to fix the time of the assault on the deceased as shortly after 8.30 p.m. That was certainly a possibility for the jury to consider, but the evidence was not “compelling”. The dog at that time may or may not have been barking at the person who committed the murder. The fact that Mrs Luppi did not hear frenzied barking between 11 p.m. and midnight does not necessarily mean that the murder was not committed in that time span. This evidence was no more than a circumstance to which the jury had to have regard in evaluating the whole of the evidence before them. Even if it be that the dog was barking at the assailant shortly after 8.30 p.m. that does not necessarily mean that it could not have been barking at the appellant. As noted above his alibi evidence was stronger for the earlier time period, but that alibi evidence was dependent upon the jury giving credence to evidence from witnesses whose credibility was at least open to question.

Wesley Brown, a 21 year old man, gave evidence that he was at the Horton Street residence during the afternoon and evening of 21 June. He was the son of Daphne Pyne, who was one of the principal residents at that address. Brown was there from about 3.15 p.m. to 10.30 p.m.. He saw the appellant there from time to time, but there were lengthy periods during which he could not say whether or not the appellant was at that address. He admitted he did not see what the appellant was doing between tea time and when he (Brown) left at about 10.30 p.m.. If the jury accepted Brown’s evidence, then they could find that the appellant was there when he left; according to Brown he spoke briefly to the appellant, who was then in bed, shortly before leaving. Brown’s evidence, even if accepted, hardly provides the appellant with an alibi between 8 p.m. and 10.30 p.m., and definitely does not provide any basis for an alibi after 10.30 p.m..

For reasons which will become obvious later it should also be noted that Brown denied that he was in a car with the appellant on the night of 21 June; that denial covered both a trip towards Redcliffe and travelling along Beaudesert Road.

Jeffrey John Pyne was the husband of Daphne, though it would appear she was then working as a prostitute and having some sort of relationship with Kelvyn Sutton. J.J. Pyne’s recollection of who was at the house on 21 June was extremely vague, and no reasonable jury could use his evidence to determine the appellant’s movement on that date. It seems clear on the whole of the evidence that Sutton and Daphne Pyne left the residence in a motor vehicle on two occasions that evening; once to drive Brown home and then so that she could visit a client. J.J. Pyne did not hear Sutton’s vehicle leave the house on either occasion, though he professed some recollection of a vehicle returning in the early hours of the morning which he presumed was them. He claimed not to have heard his Holden motor vehicle which had a particularly noisy exhaust leave the premises. The evidence establishes that he went to bed around 10 p.m. and that the keys for the Holden were in a basket near his bed. The contention of the prosecution was that the Holden owned by J.J. Pyne was available for use by the appellant on the evening in question and the jury were invited to infer that the appellant used that vehicle to get to the deceased’s residence. No reasonable jury could have regarded the evidence of J.J. Pyne as affording the appellant a strong alibi with respect to a time period between about 10.30 p.m. and midnight. A reading of his evidence suggests that a reasonable jury may well have had grave doubts as to his credibility; but even assuming he was a credible witness nothing that he said really afforded the appellant an alibi for the period referred to. Central to the appellant’s argument is the proposition that if the Holden had been driven away from the premises, J.J. Pyne would have heard it. The fact that he did not hear the vehicle driven by Sutton leave, albeit a much quieter vehicle, significantly lessons the weight of any inference favourable to the appellant which can be drawn from the evidence of J.J. Pyne.

Kelvyn Sutton was at the Horton Street address on the afternoon and evening of 21 June. One of his responsibilities was driving Daphne Pyne to and from her assignations with male customers. His evidence was that he and Daphne drove the witness Brown home “around about 10.30, 10 o’clock or something”. That was about a ten minute drive each way, and they stayed at Brown’s residence for about half an hour. After he and Daphne returned to Horton Street, she received a call from a client “around about 11 o’clock, I’m not quite sure on the time”. Sutton drove Daphne to the Ipswich address; because they had some difficulty locating the address, it took approximately an hour to get there. The booking was probably for a one hour period. Thereafter it took approximately forty minutes to return to Horton Street. Sutton said they got back there “around about 2 o’clock, it could have been a little later”. That is, of course, 2 a.m. on 22 June.

Sutton was asked whether the appellant was at 2 Horton Street when he and Daphne left to take Brown home; he replied: “he could have been in his bedroom - he may have been out in the lounge, yes. I just - I can’t remember really.” However, Sutton did say that the appellant was at the home earlier that evening. He also said that he could not recall seeing the appellant during the period after returning to Horton Street from taking Brown home and leaving to drive to Ipswich. When asked in examination in chief did he see the appellant when he came back from Ipswich, he answered: “he probably would have been in bed at that hour, yes.” He then admitted he did not then see or hear him. At that stage in his evidence he could not recall seeing the appellant whilst he and Daphne had a cup of coffee.

Sutton’s evidence was to the effect that at all times during the evening of 21-22 June when he was coming and going from Horton Street he noticed J.J. Pyne’s Holden motor vehicle in the same position. It is also true to say that under cross examination somewhat different times were put to Sutton and he conceded that some of the time frames given in his evidence in chief could have been wrong. But the general evidence as to his movements that night and approximate times remained the same.

Sutton also conceded under cross examination that in statements given to Police shortly after the events in question, he said that the appellant had a cup of coffee with himself and Daphne when they returned to Horton Street at about 2 a.m.. After being shown that statement he said that that event probably occurred. His evidence was that the appellant came from his bed room, had coffee with them, and returned to his bed room.

Again it must be said that the evidence of Sutton does not establish a strong alibi for the appellant, particularly during the window of opportunity relied on by the prosecution. A reasonable jury could well have been of the view that Sutton’s evidence was vague and unreliable. But even if it was accepted in its entirety it would not have meant that it was impossible for the appellant to have committed the crimes. Particularly if the jury considered that Sutton’s evidence to the effect that the Holden motor vehicle had not moved during the evening was unreliable, the appellant had ample opportunity, even on Sutton’s evidence, to have committed the crime.

The final alibi witness was Mabel Isabel Pyne. She was staying at the house at Horton Street on 21-22 June. She saw the appellant early on the morning of 21 June; he left with Sutton in the latter’s car at about 8 a.m. She next saw him at about 12.30 p.m. that day. She said she did not think the appellant left that house during the afternoon. Her evidence was that the appellant did some washing in the course of the afternoon and that she was generally aware of his presence around the house during the afternoon. According to her evidence after tea the appellant took a phone call and then went to his room. She did not see him again before she went to bed at about 8.30 p.m.. She was awoken during the night by hearing a fairly loud noise - like metal scraping up against a brick or a rock or something to that effect - which caused her to get up and look out of the back window. Later on during the night she again awoke and went to the toilet; the time was somewhere “between about 11 and 1". Having done so she knocked on the door of the room in which the appellant slept because she thought he might have liked a cup of coffee. She got no response to her knocking, nor when she opened the door slightly and called out to him. However, she said she “could hear breathing” coming from the bed room although she did not actually see anyone. She then went back to bed.

Again, even if the jury accepted Mabel Pyne’s evidence at its best for the appellant, it did not mean that he could not have committed the crimes during the time frame advanced by the prosecution. In any event, the jury could well have regarded her evidence as to time as unreliable.

The evidence particularised above was called by the prosecution. However, it does not justify the description of being “credible and compelling alibi evidence” as asserted by the appellant in his particulars supporting the contention that the verdict of guilty was unsafe and unsatisfactory. A reasonable jury could well have regarded most of that evidence as being unreliable and vague. But as has been pointed out, even if it was all accepted it still did not provide the appellant with an alibi, particularly for the period between about 11 p.m. and midnight. As pointed out earlier, that body of evidence, if accepted, did tend to suggest that the appellant was at Horton Street around about 8.30; but such a conclusion is dependent upon the jury accepting as accurate the evidence as to times given by those witnesses.

It is sufficient for present purposes to say that the alibi evidence was not so compelling as to result in any reasonable jury necessarily having a reasonable doubt as to the appellant’s opportunity of committing the crimes.

It is true that there was no forensic evidence linking the appellant with the offences. That is a matter which cannot be ignored, but its significance must be assessed in the light of all the other evidence. That fact alone, in the circumstances of this case, would not necessarily cause a reasonable person to have a doubt as to the appellant’s guilt.

It is also true that forensic evidence led by the prosecution indicated that there was a fresh palm print which did not belong either to the deceased or the appellant on a box of cat food in a cupboard at 357 Beaudesert Road. It was the appellant’s contention that that suggested the presence of some other party at the deceased’s premises at the time the offences were committed. That is not a reasonable inference to draw from the mere presence of that palm print. The evidence is silent as to when the deceased purchased the cat food box, and the print may well have belonged, for example, to a shop assistant.

Investigating forensic experts also noted some footprints which were not analysed. It would not be a reasonable inference to conclude that those footprints suggested the presence of some other party or parties at the premises when the offences took place. As the footprints were not analysed they, in theory, could have been made by police and others who initially went to the scene, the person who raised the alarm, or the offender (which would in theory have to include the appellant). It is sufficient for present purposes to say that such evidence could not lead a reasonable jury to have a doubt if satisfied on other evidence that the appellant was the offender.

It remains to consider the contention that statements made by the appellant to investigating police officers suggested that he could not have been at the premises where the offences occurred. The questions thereby raised can best be answered by considering in chronological order the various statements made by the appellant to investigating police. The relevant chronology is as follows.

Television news bulletins at about 6 p.m. on 22 June referred to the murder investigation following the finding of the deceased’s body. The suggestion from those present at Horton Street on that night is that they (including the appellant) watched Channel 7 news. That showed the deceased’s residence in Beaudesert Road and included an appeal by the police for help from the public. At about 6.45 p.m., that is very shortly after the news finished, Constable Cook received a telephone call at the Logan Police Station from a person giving the name of the appellant and the address 2 Horton Street, Kingston. I will refer to the substance of that telephone conversation later. As a result of that, Senior Constable Carr and Constable Stines went to 2 Horton Street and spoke to the appellant. That conversation took place at about 9.30 p.m. on 22 June. The appellant then accompanied Carr and Stines to the Oxley Police Station for the purpose of giving a statement. On the way they drove past the deceased’s residence in Beaudesert Road. At about 10.30 p.m. that night the appellant signed a statement at the Oxley Police Station; he was then driven home arriving after midnight. The original statement given at the Oxley Police Station was marked exhibit 57, and an edited version thereof exhibit 58. I will return to statements made by the appellant to Constable Carr that evening in more detail later. Carr and Stines returned to 2 Horton Street the following day, 23 June, at about 10 a.m. The appellant agreed to accompany them to the Oxley Police Station, and in the course of driving a lengthy conversation took place. During that drive, according to Carr, they again went past the deceased’s residence and the house was pointed out to the police by the appellant. On arrival at the Oxley Police Station an interview with the appellant was recorded on video. It commenced at 10.56 a.m. and went until 11.37 a.m. Thereafter he was driven by police to his home to pick up some medication. Subject to that he remained in the interview room until about 4 p.m. when Carr asked him was he prepared to accompany police to the deceased’s residence. The appellant agreed to that and he was then taken to 357 Beaudesert Road. There followed a conversation between Carr and the appellant at various points in and around that house. That was followed by a further discussion which was recorded on video at the deceased’s house; that went from 4.45 p.m. to 5.02 p.m. The police and the appellant then returned to the Oxley Police Station at about 5.30 p.m. The next relevant interview was that video taped commencing at 12.20 a.m. on 24 June and ending at 12.46 a.m. The appellant was arrested shortly after that.

In the telephone conversation with Constable Cook the appellant stated, in broad terms, that he had been driving in a northerly direction past the deceased’s residence about 11.30 p.m. to midnight; he was accompanied by his nephew Wesley and they were travelling to Redcliffe. On the left side of Beaudesert Road about two minutes before the Moorooka shops he saw three males coming from the front yard of a house. One of the males jumped a chain wire fence and that person looked like his nephew, Norman Pyne. He then stated how he had recently spoken to Norman Pyne whom he believed was in the process of travelling from Tennant Creek to Sydney; he was expecting him to drop in at any time.

According to Carr (and Stines) during the conversation they had with the
appellant on arrival on Horton Street on the evening of 22 June, the appellant recounted
a fairly similar story to that which he gave to Cook. According to Carr, in the course of
that conversation, he said:
“... me and Wesley were driving along Beaudesert Road at Moorooka last night and I
saw a person who I think was my nephew Norman running from the yard of a house on
Beaudesert Road. Then tonight I saw the house on the news and I thought that Norman
had done this.” When asked what he thought Norman had done he replied: “killed the
old lady”.

Further, according to Carr, on the drive to Oxley the police vehicle went along Beaudesert Road, and Carr asked the appellant could he point out where he saw his nephew running across the road. The police vehicle stopped in the vicinity of the deceased’s house. On the whole of the evidence the jury could have been satisfied that the appellant then pointed to the fence of the deceased’s house.

In the signed statement given to police at Oxley on the evening of 22 June the appellant gave details of his relationship and association with Norman Pyne over the years. He mentioned that about two years prior an incident had occurred when Norman had tried to molest both his mother and his young sister. He also stated that he had been told by Norman “that he prefers to have sex with older women because he thinks they are more experienced.” There was reference to Norman being violent and aggressive, both when he was drunk and sober. He also alleged that Norman had broken into various houses.

The appellant then related in that statement that he had left his home at Kingston at about 10.30-11 p.m. on 21 June with Wesley Brown to drive to Redcliffe. He was driving along Beaudesert Road at about 11.30 - midnight and about 400m past the Evans Road intersection he saw a male person run across Beaudesert in front of the car, running from the left to the right. He also saw another person jump a side fence and run along Beaudesert Road. He said that the first person he saw run across the road looked like Norman Pyne “because the person was very tall, over six foot tall and thin build. When I saw him the first thing I thought of was that it was Norman.” He made a U turn and went back to check if it was Norman he had seen but by the time he got there no one was in sight. There were no lights on in the house behind the fence over which the second person had jumped. He then stated that when he saw the news on television of the murder he “immediately recognised the house in the news as being the house which I saw the two male persons running from the night before”. Because of that he telephoned the police. He then said in the statement that after he had telephoned the police he received a telephone call from Norman who told him that he was leaving for Sydney to find his girlfriend. He also recorded in that statement that earlier that evening he showed Detective Carr the house where he saw the male person jump over the fence.

The next conversation was that between the appellant and Carr in the police vehicle on the morning of 23 June. The substance of this conversation as given in evidence by Carr was not seriously challenged in cross-examination. After some questioning about statements made by the appellant the previous evening, the conversation went on; I quote only those parts of importance for present purposes:

“I said, “Well, are you telling the true story to us now? Is there anything else you want to tell us?” He replied, “What would you get for arson these days?” I said, “Why, have you done one?” He replied, “I was there. It was Norman.” I said, “What, how do you know that?” He replied, “He rang me”. I said, “Who rang you?” He replied, “Norman rang me on Wednesday night.” I said, “Where from?” He said, “The house.” I said, “Which house?” He said, “On Beaudesert Road.” I said, “What did he say?” “He said he was in trouble and he needed some help and he wanted me to come out and help him.” ... I said, “What time did he ring?” The defendant said, “10.30". I said, “What time did you get there?” He said, “About 11 o’clock. ...” I said, “What happened?” He said, “I got to the house but Norman was gone.” I said, “What did Norman say to you?” “He said that I had to come to the house at Beaudesert Road, Moorooka. He told me the number but I don’t remember it now.” I said, “What did you do when you got to the house?” He said, “I went inside to find Norman but he was already gone.” I said, “What did you do?” He said, “I put some papers on the heater.” I said, “Did you see anyone in the house?” He said, “No.” I said, “Did you go into the bed room?” He said, “No.” I said, “There was an old lady on the floor in the bed room. Did you see her?” He said, “No. There was a pile of papers on the floor. Thats all I saw.” ... I said, “Where was the heater?” He said, “In the lounge room.”

In the course of that journey from Horton Street to the Oxley Police Station the car drove along Beaudesert Road and the appellant pointed out to the police officers the deceased’s house, numbered 357.

The next relevant interview was that recorded on video at the Oxley Police Station commencing at 10.56 a.m. on 23 June. I have had the advantage of watching that video. Early in the interview the appellant provided further details of Norman Pyne and said that he could be “very violent”. He was then asked what could he tell the police about the murder and he replied:

“I don’t know about her being murdered but I do know about it.” He reiterated the story of driving with Wesley to Redcliffe and seeing two or three “blokes leaving a yard at a house in Beaudesert Road, Moorooka.” He thought one looked like Norman Pyne. Carr then put to the appellant that in the course of the drive that morning to the Oxley Police Station the appellant had asked a question about “attempted arson”. The appellant confirmed that he asked the question, “How long do you get for attempted arson?” He also confirmed during the video that he had told Carr that he had “tried to burn the house down”. It is clear from the interview that the appellant was referring to the deceased’s house. When asked how he tried to set fire to the house he replied, “Heater, with a newspaper”. The appellant then gave a story that he had received a telephone call from Norman Pyne at about 10.30-11 o’clock on the Wednesday evening in which Norman asked for help. Norman said he was in trouble because of a break and enter. When the appellant was asked, “Did you ask him what sort of trouble it was?” He replied “No, because I was to go and burn the evidence to make it look like he wasn’t there.” He said that Norman gave him an address which he could not remember and he drove to that address. On arrival he said that he could not see a light in the house. When told by Carr that a light was on in the kitchen of the house he replied, “I don’t remember the light being on in the kitchen”. He said that because it was dark inside the house he “used my cigarette lighter”. He also said that he did not leave any fingerprints because he pulled his jumper over his hands. When asked did he see anything in the bedrooms he replied, “No, I seen a pile of newspapers that’s all. ... just laying all over the floor.” He went on to say, “Well, I tried to get my lighter to work to burn the evidence with the newspaper”. The evidence he wanted to burn was apparently Norman’s fingerprints because “Norman doesn’t wear gloves when he does a break and entry”. According to the appellant he was having difficulty with his cigarette lighter and “I saw a heater and I put the heater near the paper, and then just jumped a side fence.” In the interview he said that the heater wouldn’t be “more than two feet and it wouldn’t be more than a foot high.” In that interview he said that the heater was already plugged into the wall that he switched it on at the power point. In answer to a question, “Is there a switch on the heater?” He replied, “Yeah, I switched it to high”. When asked did he put anything on the heater, he initially said “No” and that he could not remember, but when newspapers were specifically mentioned, he thought he might have put them on the heater.

A little later in that interview he was asked why he telephoned the police on the evening of 22 June and he replied: “Because when I heard about that house and that woman being murdered I didn’t want them to come - I didn’t - I didn’t want to be - I tell you know if I’d known Norman had murdered that woman or I’d known that woman was dead I wouldn’t have done it.” Later again in the interview he was asked some questions about the house. He was asked in which room had he seen the newspapers and he replied, “Well, As I was walking through the house it’s on your right. ... There was a bed in it”. When recounting how he entered the house he referred to “A little lounge chair, a couple of lounge chairs which I bumped into”. He expanded on that by saying “I walked into - I walked in the front door and you - there is a hallway sort of thing there and I walked around to the right from the hallway and I bumped into some chair or something, I think it was a lounge chair. And I went through that room to a couple of other rooms and - one of the rooms, I think it was the second room I came to, this is where I seen the pile of newspapers.” He said that the place looked “Like that somebody burgled the place. ... A bit of a mess.”

Right at the end of that interview he was asked whether there was anything further he wished to say and the replied, “Only if I’d known that the woman was dead I would not have gone and helped Norman.”

As previously noted, at about 4 p.m. on 23 June the investigating police took the appellant to the deceased’s residence. A conversation (unrecorded) occurred between Carr and the appellant as they walked through the house. In the course of that conversation, according to Carr the appellant said, referring to the heater, “I put it here in the bedroom and turned it on and stuffed papers in it.” When asked where he plugged it in the appellant indicated a second room on the left of the hallway. Carr then drew his attention to the fact that there was no power point in that room and asked the appellant whether he knew what he was saying. According to Carr the appellant replied, “No, I don’t know. I wasn’t here. I didn’t do it. I’ve never been here before. This lady was my aunty. If I find out who did this I’ll kill them.”

Thereafter, a further short conversation between Carr and the appellant was recorded on video; again I have seen that. Recorded on that video is some conversation between Carr and the appellant about the heater, but much of it is indistinct. The appellant appears to say that he took it (the heater) into a bedroom and turned it up high. There is also some reference by the appellant to newspapers. There followed some fairly indistinct conversation about plugging the heater in. The jury may have found the video sufficient to confirm the earlier unrecorded statement that the heater and power point were in different rooms. Then follows a conversation in which the appellant claimed the deceased was possibly his aunty. The following questions and answers are fairly clear:

“Q.	You then told me that you knew the person who lived here, is that right? -
A. I do, yes.

Q.      What’s the surname? - A. Ethel Anderson.

Q.      Her name was Ethel Adamson - it’s a different name? ... her name was -

A. Ethel Anderson
Q.	Well, Ethel Anderson was her maiden name? - A. Yeah.
Q.	And her married name was Ethel Adamson? - A. She married a
bloke called Gordon. ...
Q.	How did you find this out? - A. By a report of missing persons. I

started looking for my mother two years ago.

Q. Okay. And what did they tell you about this woman? - A. That she

could be my aunty.

Q.      Have you ever spoken to this woman? - A. No.

Q. Did you every try and check out if she was your aunty? - A. I did once,

yes.

Q. What did you do? - A. I came to this address and there was no one

home.”

At some time on 23 June, probably after that interview, Senior Constable Neville, a scientific officer, carried out an examination of the premises at 2 Horton Street. In a chest of drawers in a bedroom (used at least from time to time by the appellant) he located an Extract of Birth Entry relating to the appellant (exhibit 49), the Birth Certificate of the appellant’s mother (exhibit 50), a letter dated 11 April 1995 from Department of Consumer Affairs to the appellant (exhibit 51), a letter from Department of Family Services to the appellant dated 6 October 1994 (exhibit 52), a further letter from Department of Family Services to the appellant dated 2 October 1992 (exhibit 53), and a document headed History for Investigation (exhibit 54).

The Birth Certificate of the appellant’s mother shows that she was born on 25 December 1932 and was then named Phyllis Mabel Anderson. That certificate shows that she had an elder sister Ethel Anderson aged 10. The letters verify the appellant’s assertion to Constable Carr that he had been trying for some time to trace particulars of his mother, and had been endeavouring to locate her or her relatives.

The prosecution also tendered evidence which showed that the deceased was born at Sunnybank on 30 October 1917 to a woman named Campbell with no father disclosed (exhibit 73A). It would appear from the Birth Certificate dated 19 July 1942 (exhibit 73B) and the Marriage Certificate (exhibit 73C) that she changed her name by Deed Poll to Anderson. By her marriage on 10 July 1948 she became Adamson.

That brings me to the final police interview, that recorded by video at 12.20 a.m. on 24 June; again I have seen that.

When asked about the deceased, Ethel Adamson, the appellant said “I don’t know her personally” but went on to say that “I know of her”. He was then asked “How do you know of her?” and he replied, “I’ve been told, or informed that she is my aunt.” He claimed he was told that about twenty years ago by someone in the Salvation Army. He believed that the deceased was his mother’s sister. Then in a series of answers he indicated that he hated his mother because she had put him out for adoption when he was very young and thus he was deprived of a normal childhood. Carr then put to the appellant, “You think that her sister, Ethel, used to argue with her?” and the appellant replied, “Yeah”. Again he said he was told that by the “gentleman” from the Salvation Army. In a series of answers the appellant admitted trying to see Ethel on two occasions at Beaudesert Road, Moorooka; once about twenty years ago and once about three years ago. He went to the house where the killing had occurred but claimed he did not see her on either occasion. When asked about his feelings towards Ethel he replied, “I think she might be partly responsible for my - I don’t know. I heard that. I can’t tell you that.” But he went on to imply that though he could not be specific he believed that Ethel was in some way responsible for his mother’s disappearance. He thought his mother may have been murdered, and that his aunty may have been implicated. Again, there was reference to his belief that there were arguments between his aunty and his mother. Because of that he admitted that he hated Ethel “to a certain point”, but denied he would ever harm her.

Later in that interview he admitted that the documents found at 2 Horton Street were his. He claimed that he did not go to the deceased’s house on the Wednesday night and break in and assault her. He claimed that he was at home watching a movie and other T.V. until he went to bed.

There was evidence before the jury indicating that the investigating police had located Norman Pyne in New South Wales before the arrest of the appellant and they were satisfied he was nowhere near the scene of the crimes at the material time.

The contention is that the verdicts of guilty are unsafe and unsatisfactory and should be set aside. The approach which this court must adopt in considering that submission is as outlined by the High Court in M v The Queen (1994 ) 181 CLR 487 and Jones v The Queen (1997) 72 ALJR 78. The summing up was not criticised.

As already indicated, the main features of the case relied on by counsel for the appellant were the alibi evidence, the inaccuracies in the appellant’s statements to the police, and the lack of any forensic evidence connecting the appellant to the offences. I have already dealt extensively with the alibi evidence, and there is little that can be added to what has already been said. For the reasons already given that evidence does not establish a strong alibi for the period 11 p.m. to midnight, which was the “window of opportunity” primarily relied on by the prosecution. The fact that there was no forensic evidence linking the appellant to the scene of the crime is a factor to which due weight must be given, but it is not necessarily decisive. Similarly, the forensic evidence revealing the presence of other people at or about the scene is not decisive, primarily because that evidence is consistent with the presence of people a significant time before or after the crime was committed.

Counsel for the appellant strongly argued that there was no credible evidence as to how the appellant got from 2 Horton Street to the scene of the crime. The inference from statements made by the appellant to investigating police is that he used the Holden owned by J. J. Pyne. The keys of that vehicle were readily available and the evidence suggesting that it was not moved on the evening in question is not strong. It is a relevant consideration that the vehicle was noisy, but the fact that no one heard it carries somewhat less weight because of the fact that other vehicle movements that night around the house (albeit with a quieter car) were not heard by others in the house. The fact that some fingerprints belonging to people other than the appellant were found in that car, and none of his, is a relevant consideration but, again, not decisive.

It was submitted by counsel that on the whole of the evidence the court should be satisfied that the appellant was a person of low intelligence who was readily open to suggestion. One of the investigating police officers referred to him as an “attention seeker”. Those are all matters which must be borne in mind when considering the whole of the evidence. There are occasions during the video recorded interviews where the appellant appears to take up a suggestion emanating from one of the police, but there are other occasions when a response against interest appears to be both spontaneous and reasoned. At the end of the day I am satisfied that counsel endeavoured to make more out of those features of the appellant’s character than could be supported rationally. For example, it was submitted that when the appellant realised that the police were not taking his story that Norman Pyne had committed the crime seriously, he made up the story of his involvement in the arson in order to give credence to his version and have the police take him seriously. One can readily understand a jury rejecting such a hypothesis as fanciful.

That leaves for consideration the discrepancies between objectively established facts about the deceased’s house and the commission of the crimes on the one hand and statements made relating thereto by the appellant on the other. All such discrepancies were primarily a matter for the jury. If it is assumed the appellant committed the crime then this was the only occasion on which he had been inside the premises; it was at night, and though electricity was available it is understandable that it may not have been used. Some rooms in the house were not furnished, or not furnished so that they would be immediately recognisable as, for example, a bedroom. Because of such considerations a jury need not necessarily have regarded discrepancies in the description and location of features in the house by the appellant as decisive. Indeed, they may have placed greater weight on those statements which indicated, perhaps unwittingly on the part of the appellant, some familiarity with the premises. For example, the appellant spoke of stumbling across a “lounge chair or something” as he turned towards the hallway. There was in fact a squatters chair in that position. Further, some of the features mentioned by the appellant in relation to the bedroom in which the deceased was found were consistent with fact.

When the body was discovered it was noted that the kitchen light was on. The appellant said that there were no lights on in the house. That is a matter which was drawn to the jury’s attention and it was for them to evaluate. Again I do not regard that discrepancy as being necessarily decisive.

The method of gaining entry to the premises falls within the same category. It appears entry was in fact gained through a window whereas the appellant’s initial statement was to the effect that he gained entry through the front door. Later, after the window had been mentioned, his statements were to the effect that he got in through the window. As already noted, I do not regard those discrepancies as being necessarily decisive.

Much was made of the evidence relating to the heater in the course of argument. When the police arrived they found that the heater was plugged into a point in the bathroom with the cord running across the hallway to the heater itself in what was virtually a spare room. It is true that the appellant gave a number of inconsistent and inaccurate accounts as to where the heater was located. What the jury may well have regarded as being of more significance is the fact that at all times the appellant appears to have been saying that the heater was in one room and the power point in another. That is something which could be regarded as unusual and only known to the person responsible for placing it in that position. A reasonable jury may well have considered that if the appellant was moving in a semi darkened house which was unfamiliar to him he could have been confused as to the designation of the rooms. What would have stood out in his primary recollection would have been the fact that the heater was in one room and the power point in another. The appellant provided reasonably accurate dimensions for the heater, but erroneously stated that it had a high and low switch; they were all matters for the jury to consider. As I have endeavoured to demonstrate, a reasonable jury could have found that his statements reflecting some more unusual aspects strengthened the prosecution case, and considered that the other discrepancies were not decisive.

Whether considered in isolation or collectively, the inconsistencies were not such
as necessarily to cause a reasonable jury to have doubts about the prosecution case.
At the end of the day there are some coincidences which the jury may well have
regarded as carrying greater weight than the inconsistencies and inaccuracies in the
appellant’s statements to which I have just referred. The appellant believed the
deceased woman to have been his aunty. He had been to the house previously but had
not spoken to the deceased. He professed hatred towards her because of his belief that
she was in some way responsible for his having been deprived of a normal upbringing.
The fact that he had documents in his possession relating to a possible relationship with
the deceased, the fact that the deceased’s maiden name for a period was Anderson,
and his reaction on seeing the news report of the crime could well be regarded by a
reasonable jury as evidencing some link between the appellant and the crime. His initial
false account to the police that Wesley Brown was in a car with him near the scene at
the relevant time, and that the crime was committed by his cousin Norman Pyne could
also be regarded as damning evidence against him. There had been no mention in the
T.V. news report of any sexual element in the offence, yet when found the deceased’s
panties had been removed and were under her body. Against that background the jury
could well have concluded that the appellant knew more about how the deceased met
her death than he admitted to police. In that context the jury could have regarded the
inclusion in his statement to police of Norman’s prior sexual wrongdoings as of
particular significance. It may well have been regarded as the product of a scheming
mind rather than an irrational statement made for the purpose of seeking attention.

In his various statements to the police the appellant placed himself at the scene of the crime, indeed in the house, at the time that his alibi was at its weakest. Whether or not that was another mere coincidence was a matter for the jury to determine.

Finally, one can refer to the evidence that personal papers of the deceased were strewn around the bedroom in which her body was found. Apparently drawers had been ransacked. That could well be regarded as suggesting that the perpetrator was looking for either documents or other material of interest to himself. Given that the appellant had a general desire to confirm or disprove any possible link between him and the deceased, that evidence could well be treated as a circumstance pointing to his involvement in the crime.

At the end of the day neither consideration of submissions made by counsel for the appellant, nor my own review of the evidence, causes me to have such a doubt about the convictions as to make them unsafe and unsatisfactory. In the sense referred to in M. and Jones guilty verdicts were clearly open to the jury in this case. In my view there was a strong circumstantial case against the appellant and on the whole of the evidence the verdicts were justified.

The appeals should be dismissed.