R v Andrews No. Sccrm-00-25, Sccrm-00-26

R v ANDREWS
[2001] SASC 272
NYLAND J:

In this matter there is an application to extend time for leave to appeal and there is an application for leave to appeal against conviction and sentence. The applicant was charged on an information dated 18 September 1995 with the murder of Christine Faye Jenkins. The offence is alleged to have occurred on 18 December 1994 at Ferryden Park. The applicant pleaded not guilty to that charge. At trial he was represented by senior counsel. He was subsequently found guilty of murder by verdict of the jury on 11 April 1996. On 2 September 1996 he was sentenced to life imprisonment with a non-parole period of 22 years.
The application for leave to appeal against conviction and sentence was filed on 18 August 1999 by the applicant acting on his own behalf. There were a number of procedural problems associated with the application. It was first listed before me on 20 March 2000 Thereafter the course of proceedings became somewhat protracted. The applicant is both speech and hearing impaired. As a result there were practical problems associated with him effectively representing himself, quite apart from the legal issues involved in his application. The applicant was, however, spasmodically represented by counsel who appeared on a pro bono basis. There were, however, a considerable number of adjournments in an endeavour to resolve issues of legal representation resulting in little progress in the matter.
Eventually, however, on 28 March 2001, Ms Lehmann of the Legal Services Commission attended at court and gave evidence as to the applicant’s dealings with the commission with respect to the obtaining of legal assistance. In the course of giving evidence, certain matters were brought to Ms Lehmann’s attention as a result of which she indicated that the commission would reconsider the application for grant of legal aid. Ms Nelson QC was subsequently appointed to act as counsel with respect to these matters and argued the application for leave on the applicant’s behalf.
The applications for an extension of time and leave to appeal were heard by me on 1 June 2001.
Ms Kelly appeared on behalf of the Director of Public Prosecutions. She opposed both the application for an extension of time and the application for leave.
In the course of her submissions as to the grant of an extension of time, Ms Nelson attributed some of the delay in filing the application for leave to Mr Andrews’ pursuit of inappropriate avenues of appeal. Those matters are set out in the applicant’s affidavit sworn on 15 February 2001. They include letters to the Chief Justice and the Attorney General and the Human Rights and Equal Opportunity Commission. The applicant made complaints about the conduct of his case by senior counsel representing him at the trial and also had some dealings with the Legal Services Commission who rejected his application for legal assistance.
At some stage subsequent to trial, the applicant ascertained that there was a potential witness available by the name of Bradley Curnow. Mr Curnow was prepared to give evidence that he had been outside the court during the trial and had heard prospective witnesses discussing matters of evidence amongst themselves, comparing notes and possibly tailoring evidence. There was subsequent further delay associated with locating Mr Curnow and obtaining his signature on an affidavit deposing as to those matters. The applicant also wrote to the Governor asking for a pardon based on the matters set out in Mr Curnow’s affidavit.
Ms Nelson indicated, however, that the significant factor with respect to delay was the unavailability of legal aid funding. As a result, the applicant had eventually been obliged to draft his own application for leave to appeal which, as I have already mentioned, suffered from a number of procedural defects. Following the obtaining of some legal assistance, however, the notice was substantially amended. The application currently before the court sets out the grounds of appeal as follows:
“15.1That the learned trial Judge erred as a matter of law in admitting evidence of conversations between the deceased and persons other than the accused (transcript pages 2-55) for the reason that such evidence was prejudicial rather than probative or, alternatively its prejudicial affect outweighed its probative value and in any event such evidence was led purely to show propensity.
15.2That the learned trial Judge was in error in admitting evidence of the search and investigation and materials seized by the Police from the accused’s home (transcript pages 55-99) for the reason that the Police had misled the accused about the purpose of going back to his house.
15.3That the learned trial Judge was in error in admitting evidence in relation to the previous relationship between the accused and the deceased (transcript pages 2-55) for the reason that such evidence was prejudicial rather than probative or, alternatively its prejudicial affect outweighed its probative value and in any event such evidence was led purely to show propensity.
15.4That the learned trial Judge was in error in admitting the evidence of the witnesses Doroschenko and Allen that the deceased spoke to them about her attitude towards anal sex (transcript pages 256 and 279-280) for the reason that such evidence was prejudicial rather than probative or, alternatively its prejudicial affect outweighed its probative value and in any event such evidence was led purely to show propensity.
15.5That the learned trial Judge was in error in refusing to admit evidence which was relevant and admissible in support of the accused’s defence namely the evidence of the proposed witnesses, McCauley, Scudds and Denton (transcript pages 826-830 and 847-849).
15.6That the learned trial Judge was in error in directing the jury that if they were satisfied that he strangled the deceased a verdict of manslaughter was not open to them (summing-up pages 49-50 and 60) for the reason that there was evidence that the victim was of small stature and might have been killed by the accused without the necessary intent for murder.
15.7That the learned trial Judge was in error in the direction given as to lies in that the learned Judge did not refer the jury specifically to each of the lies relied upon by the Crown to prove guilt (summing-up pages 12 and 44).
15.8That the verdict was unsafe and unsatisfactory and against the weight of the evidence for the reason that without the inadmissible evidence there was insufficient for the jury to be satisfied beyond reasonable doubt of the accused’s guilt more so given that there was strong evidence to link one McIntosh to the crime.
15.9That the learned trial Judge was in error in directing the jury that the possibility of the witness McIntosh being responsible for the death of the victim needed to be both reasonable and ‘seriously’ considered (summing-up page 42) for the reason that to do so was in effect to reverse the onus of proof and/or to impose a more stringent test than ‘reasonable doubt’.
15.10That fresh evidence has come to light of coercion being exercised against witnesses and/or collusion between witnesses namely the evidence of one Bradley Troy Curnow a copy of whose affidavit is attached.
15.11That the learned trial Judge was in error in his direction as to the silence of the accused (pages 8 and 9 of the summing-up) in that the direction failed to include a reminder that the Crown needed to prove its case beyond reasonable doubt and did not alert the jury to the fact that an accused may not give evidence for reasons unknown to them. Moreover in alluding to the failure of the accused to have his story tested in cross-examination at the end of this direction the learned Judge in effect negated the effect of what had earlier been said regarding silence not being ‘evidence of either guilt or innocence’.”
Ms Kelly’s principal opposition to the application for extension of time was the lack of merit in any of the grounds of appeal. I eventually indicated that I would hear the application for extension of time and the application for leave to appeal together on the basis that if merit was demonstrated in any of the grounds it would be appropriate to grant an extension of time.
The facts relating to this matter are briefly as follows. On Sunday morning, 18 December 1994, the body of Christine Faye Jenkins, aged 43, was found lying partially clad on her bed at her home at 37 Balranald Street, Ferryden Park. Ms Jenkins’ two young children, Dianne aged 3 and Leanne aged 4, were asleep in a bedroom next door. In the early hours of that morning, Ms Jenkins was seen leaving a Christmas party at a friends house in a nearby street, namely Loddon Street, Ferryden Park. At that time, Ms Jenkins was accompanied by the applicant (who was her boyfriend) and her two daughters. At about 6.15 am on the Sunday morning, the applicant telephoned a friend of Ms Jenkins, called Kathy Malthouse. The applicant told Ms Malthouse he could not wake Ms Jenkins up. He then walked to the home of another neighbour called Patricia Simper and told a similar story. Ms Simper went back to the house. Ms Jenkins was found lying on her back across the bed in a semi-naked state.
Dr John Gilbert, a forensic pathologist attended at Ms Jenkins home at about 10 am. He formed the opinion that Ms Jenkins had died in the early hours of that morning from manual strangulation. After post mortem examination conducted later in the day, Dr Gilbert formed the opinion that Ms Jenkins may have been vaginally and anally penetrated at around the time of her death.
It was the prosecution case that the applicant had murdered Ms Jenkins sometime after they had arrived home from the party they had attended in the nearby street. The prosecution case was based on circumstantial evidence. One of the circumstances relied upon by the prosecution was the state of the relationship between the applicant and Ms Jenkins. Another circumstance was the lack of any sign of forced entry to the house that morning. The applicant was also alleged to be the only person who had keys to Ms Jenkins’ home. The prosecution also alleged that the applicant told a number of stories about his last moments with Ms Jenkins. In particular why he said he left her house at about 3.30 am on that particular morning, walked 4.2 kms back to his own unit at Pennington for a period of about 10 minutes and then walked back to Balranald Street to find Ms Jenkins’ body.
Against that brief resume of the facts I now turn to the proposed grounds of appeal. Grounds 1, 3 and 4 can be dealt with together. These grounds raise a complaint as to the admission of the evidence of a number of witnesses as to the relationship between Ms Jenkins and the applicant. In particular, the applicant complains of the admission of evidence from witnesses Doroschenko and Allen that Ms Jenkins had spoken to them in the period preceding her death of her dislike of anal sex and the effect that had on her relationship with the applicant.
Ms Nelson submitted that this evidence had limited probative value but was highly prejudicial and that by the admission of such evidence there was a danger of the jury indulging in propensity reasoning.
Ms Jenkins’ attitude to anal intercourse was, however, a relevant issue in the case. There was forensic evidence that she was subjected to such an act at about the time of her death. In his record of interview, the applicant maintained that he had never had anal sex with the deceased. He said he did not believe in it and he had never suggested it to her.
The evidence of the unstable relationship which existed between Ms Jenkins and the applicant and the evidence of Doroschenko and Allen were in my view relevant and admissible on the topic of whether the deceased would be likely to have consented to an act of anal sex. The trial judge warned the jury of the limited use of this evidence and warned them against impermissible propensity reasoning by saying:
“That particular evidence was admitted only to show her attitude and that she was unlikely to consent to anal sex and for no other purpose. You certainly must not infer therefrom that the accused was of bad character or jump to any conclusions that he was the culprit.”
In my view no arguable case has been presented with respect to these three grounds of appeal.
Ground 2 raises an issue concerning the police search of the applicant’s home. Police attended at the applicant’s home on 18 and 19 December 1994. On the second visit the police seized some pornographic magazines which they had observed on the first visit. One of those magazines contained a questionnaire which the applicant admitted had been completed by him which included such questions as “What types of sex interests you most? Please indicate by putting a number in the box, with the number 1 being your favourite type of experience”. The applicant had ticked “oral sex” and “anal sex”. The question marked 9 required the listing of favourite sex positions in order of preference and the applicant had answered “(a) doggy, (b) oral, (c) head job. The evidence of the questionnaire was introduced by the Crown as relevant to the issue of anal sex.
Ms Nelson submitted that the trial judge should not have admitted the evidence of the search as the police did not have a warrant to seize items from the applicant’s house. It was common ground that the police had not relied on a warrant to seize the relevant article as they maintained they had relied upon permission forthcoming from the applicant. Ms Nelson submitted, however, that the police had misled the applicant as to the purpose of returning to his house and in those circumstances, it was inappropriate for that evidence to be placed before the jury.
The learned trial judge heard argument on the voir dire as to the exclusion of the evidence obtained in the course of the search. This included evidence from Detective Senior Constable Hutchins, the officer in charge of the investigation and evidence of Detective Murphy, who had attended at Ms Jenkins’ home on the morning her body was discovered. Detective Murphy said he had a conversation with the applicant that morning and described him as being extremely co-operative. He asked if he could attend at his home, primarily to seize his clothing, and the applicant consented. The police did not, however, seize anything from the applicant’s house on that particular day apart from the clothing, although Detective Murphy appears to have seen the magazines. Detective Murphy acknowledged that the applicant was a suspect at the time of the search on that day, which was 18 December 1994. The police had a round table conference the following morning. At that time, the applicant was still a suspect and the police determined to carry the investigation forward. As it happened, while they were looking for the applicant to speak to him, he arrived at the police station. A video interview was then conducted.
The trial judge viewed the video of the record of interview. It appeared therefrom that the police told the applicant that they wished to cover all bases. They indicated a desire to go back to his house as they wanted to see if there had been anything stolen from the deceased’s house. The police do not appear to have mentioned the magazine. The applicant consented to the further search. The police did not therefore use a warrant for the search.
The application to exclude the evidence of the search was based on the Bunning v Cross fairness discretion, the argument being that the applicant had been misled as to the purpose for which the police were re-attending at the house.
The Crown in evidence sought only to rely on the questionnaire which was discovered by the police when perusing one of the magazines on the day following the seizure. In my view, the questionnaire was relevant and admissible. It was evidence obtained by the police in the course of a search to which the applicant consented. In my opinion no error has been demonstrated in the exercise of the trial judge’s discretion to admit that evidence.
I now turn to Ground 5. This relates to the refusal of the judge to admit evidence of proposed witnesses McCauley, Scudds and Denton. Paula McCauley’s husband, Danny, apparently at some stage had a relationship with the deceased. The evidence proposed to be called from Paula McCauley was to the effect that, suspecting her husband had gone to visit Ms Jenkins, she went to Ms Jenkins’ home the Saturday before her death in company with Debbie Scudds and Debbie Scudds’ partner, Gary Denton. Denton also had a previous relationship with the deceased and there was a suggestion that the relationship between Denton and the deceased had not concluded at the time of her death. The Crown case was that Ms Jenkins’ killer was someone known to her whom she had let into the house and a person with whom she had been prepared to be intimate. The defence asserted that the evidence about Danny Scudds and Gary Denton was relevant to show that there were a number of people who could have fitted the description of Ms Jenkins’ killer apart from the applicant.
The Crown, however, declined to call any of these people as witnesses on the basis of lack of relevance. The evidence appeared to be limited to a suggestion that the three of them had been at the house about a week before Ms Jenkins’ death, plus the fact that at some stage in the past Denton had had a sexual relationship with Ms Jenkins.
The argument as to this matter took place at the conclusion of the Crown case and in the context of an application to the trial judge for a direction that the prosecution be required to call them as part of the Crown case. The limited power of a judge to direct the prosecution to call a witness is well established. In this case, the trial judge understandably declined to make such a direction on the basis of the matters put to him by the prosecutor. The applicant was at liberty to call those witnesses himself as part of his own defence, if in fact he considered that their evidence was relevant to the issues in the case. He did not do so. In my opinion there is no merit in this ground of appeal.
Ground 6 is a complaint that the trial judge by reason of his direction to the jury withdrew the possibility of a verdict of manslaughter from them. The learned trial judge in his direction to the jury said:
“Yesterday I mentioned that manslaughter was a possible alternative verdict, and it is.
Manslaughter, so far as might be relevant here, is the offence that is committed if one person kills another while committing an unlawful and dangerous act, and I explained to you the elements in that offence.
However, ladies and gentlemen, if you are satisfied beyond reasonable doubt that it was the accused who strangled the deceased, you will remember, no doubt, the evidence of Dr Gilbert, about what the culprit must have done and I imagine if you are satisfied the accused strangled the deceased, you would have no difficulty in deciding that he intended to cause her really serious bodily harm, even if you have a doubt about whether he intended to kill her.
If that is your view, it would be quite wrong to convict of manslaughter because in that event he would be guilty of murder.”
Dr Gilbert’s evidence was that the cause of Ms Jenkins’ death was manual strangulation which resulted in several areas of bruising to the muscles of the upper neck region and fractions to parts of the thyroid cartilage which forms the Adam’s apple. He estimated that the blockage of the blood vessels in the neck which had occurred would have required at least two or three minutes of neck pressure.
Ms Nelson referred, however, to the evidence that the deceased was a woman of small stature, and the evidence of Dr Gilbert that not a great deal of force was required to cause the fractures to the neck. Dr Gilbert was unable to say how many applications of force would have been necessary to cause her injuries. Ms Nelson argued that the evidence supported a situation in which there had been a struggle in which there could have been periods of pressure to her neck. On that scenario the application of force was not necessarily consistent with an intention to cause really serious injury. On that basis the judge should have left a verdict of manslaughter open to the jury.

When Dr Gilbert’s evidence is looked at in its entirety, and considering the various injuries he described, I think there was ample evidence to support an inference that whoever applied the relevant force to the deceased had, at the very least, an intention to cause really serious bodily harm. In any event, this was an issue raised by counsel representing the applicant at the conclusion of the summing up. As a result, the learned trial judge gave a further direction to the jury in which he said:
“Towards the end of my address, ladies and gentlemen, I put certain things to you that you should have regard to, if you were satisfied beyond reasonable doubt that the accused strangled the deceased and in considering whether manslaughter was the appropriate verdict. I didn’t say at that time, although I said to you at other stages of my summing up, that the decision is entirely yours, and that anything I think, unless it commends itself to your commonsense, you can completely disregard. The facts and the verdict are entirely yours.”
The jury were directed on a number of occasions throughout the summing up that the facts were for them. I do not think there is any substance in the complaint with respect to this matter.
Ground 7. This ground complains of the direction given by the trial judge on the topic of lies. Ms Nelson’s submissions on this topic were relatively brief. She complained that the judge had simply given a general direction and had not referred the jury specifically to each of the lies relied upon by the Crown to prove guilt. The judge should have taken the jury to the various contexts in which the Crown alleged the applicant had lied as opposed to giving the general direction.
The learned trial judge on two separate occasions in the course of his summing up gave a direction on lies in accordance with Edwards v The Queen (1993) 178 CLR 193. However, this was not a case in which the lies were relied upon by the Crown as proof of consciousness of guilt. The Crown case was that lies told by the applicant were relevant only to his credibility. On that basis, therefore, the direction given by the learned trial judge was unnecessary. It may be seen to have been unduly favourable to the applicant. As the High Court said in R v Zoneff (2000) 200 CLR 234 at 234.
“where the Crown did not rely upon the answers of an accused to found a submission that he had lied out of a consciousness of guilt it was unnecessary and undesirable that a direction of the kind with which Edwards v The Queen (1993) 178 CLR 193 was concerned be given.”
Although it might have been better in the circumstances of this case for the judge not to have given this direction, I do not think that any miscarriage has arisen as a result thereof.
Grounds 8 and 9 can be dealt with together. These grounds are concerned with the possibility of a man called McIntosh being responsible for the death of Ms Jenkins. The position taken by the applicant at trial was that McIntosh was the perpetrator of the crime. McIntosh had been a boarder in Ms Jenkins’ home. He was called to give evidence by the Crown. He had been given a key to the front door, although he said that he had lost it. He said he had moved out about a week before Ms Jenkins’ death. He acknowledged that he had an argument with her about money. Mr McIntosh was strenuously cross-examined by counsel representing the applicant in the course of which he denied any complicity in Ms Jenkins’ death.
When looking at the evidence called at the trial and the whole of the judge’s summing up, the jury would have clearly understood the defence contention that Mr McIntosh was the person responsible for Ms Jenkins’ death. The jury had the opportunity of hearing Mr McIntosh give evidence and assessing him when he gave evidence in the witness box. The judge made it clear on a number of occasions that the onus of proof was at all times on the Crown and that the applicant should be given the benefit of any reasonable doubt about any of the matters.
Ground 10 raises an issue as to fresh evidence. As to this matter, the applicant relies on the affidavit of Bradley Curnow sworn on 17 April 1997. At the time of swearing his affidavit, Mr Curnow was a prisoner serving a sentence at Yatala Labour Prison for the offence of drive disqualified and illegal use of a motor vehicle. He said that prior to his incarceration it was his habit to attend at Sir Samuel Way Building to watch certain criminal trials being conducted in the jurisdiction of the Supreme Court. He recalled the applicant’s trial. He said that he had been standing outside the court on one particular day when he overheard a conversation between three women, one of whom he believed was called Dianne and whose occupation was baby sitter. He recalled a tall man whom he believed to be a policeman speaking to the women and telling them that he had to go off for a while and while he was away they were not to discuss the case. Mr Curnow said that a couple of minutes after the policeman left, the elderly lady brought out a newspaper clipping about the case and the three women started to read it between themselves. Mr Curnow said that the woman Dianne started to tell the other two women to say certain things when they gave evidence and not to say other things. At one point they started to dispute the factual content of the newspaper article and saying things like “... that’s not right, she did not die like that”. There was also discussion about whether or not the victim died by strangulation.
In my opinion, the matters set out in the affidavit fall short of meeting the threshold test of fresh evidence which would require the court to re-open this matter. There was no identification of the woman known as “Dianne”, nor the other two women. It is not even clear that they were witnesses in the case. If they were, the issues raised in the affidavit might have affected their credibility but do not appear to relate to any significant evidence relied upon by the Crown to secure a conviction. Nothing was put to me to demonstrate that there would be a miscarriage of justice should the conviction not be set aside as a result of the matters set out in Mr Curnow’s affidavit.
Ground 11. The applicant did not give evidence at the trial. This ground complains of the direction given by the trial judge concerning the applicant’s silence at trial. Ms Nelson complained that the judge should have reminded the jury of the need for the Crown to prove its case beyond reasonable doubt. She also submitted that the judge should have alerted the jury to the fact that there might have been reasons unknown to them for the applicant not giving evidence, in particular, the trial judge should have referred to the applicant’s speech and hearing impediments. Instead, the trial judge negated the effect of the direction to the jury that silence was not evidence of either guilt or innocence by alluding to the failure of the accused to have his story tested in cross-examination.
The particular passage complained of by the applicant was in the following terms:
“Ladies and gentlemen, the accused did not give evidence before you. An accused person is not bound to give evidence. He is entitled to stay in the dock and require the prosecution to prove its case. His silence is not evidence of either guilt or innocence. It cannot fill any gaps in the prosecution case. It cannot be used as a makeweight.
On the other hand, you, the jury, have been deprived of the opportunity of observing him in the witness box and hearing his story tested in cross-examination.”
The trial judge then went on to explain to the jury that the Crown case was based on circumstantial evidence. He made it clear that they could not return a verdict of guilty unless the circumstances were such as not to be consistent with any reasonable hypothesis other than that the accused was guilty of the offence. At the conclusion of his directions the judge reminded the jury that if the evidence left them with any reasonable doubt about the guilt of the accused they were obliged to acquit him.
It might perhaps have been helpful for the trial judge to have mentioned the particular physical impediments of the applicant. However, the evidence established that the applicant was the last person to see Ms Jenkins alive and also the first person to discover her body. On that basis, notwithstanding his physical impediment, this was a case in which the jury might well have expected to have heard some evidence from the applicant himself. The applicant declined to give evidence. In my view, the judge’s direction as to this aspect of the matter was adequate. In any event, no complaint was made about it by counsel representing the applicant at trial.
Following the completion of the submissions of Ms Kelly, Ms Nelson, by consent, mentioned without any detail some further matters which the applicant requested be put before the court which were not included in the grounds of appeal. The first was the failure to call Ms Gooden concerning a threatening phone call recorded on her answering machine. The relevance of this was not explained to me.
The applicant also raised the failure to call Ms Hill, but as I understand the matter, Ms Hill’s statement was read to the jury. Ms Hill said she saw a person walk from the front to the back of the house in the early hours of the morning of Ms Jenkins’ death. The applicant’s counsel chose not to call her as a witness to expand on this.
The applicant also raised the issue of the bruise on the leg of the deceased which the applicant suggested was a bite mark made by the perpetrator of the crime. However, the results of the autopsy concluded that this bruise was at least a few days old and did not appear to be relevant to the death. The applicant also claimed that the prosecutor misled the jury by suggesting the deceased had scratched the applicant on the bridge of his nose during the struggle on the bed whereas the applicant maintained that the deceased’s daughter, Leanne, had scratched him on another occasion. The applicant did not, however, produce any evidence as to that matter and it is therefore inappropriate to raise that matter at this stage of the proceedings. I do not propose to canvass these matters at length as none of them, in my opinion, raises an issue which might found a arguable case upon which to challenge the conviction
In my opinion there is no ground of appeal which is arguable before the Full Court. The application for extension of time, as well as the application for leave are refused.

[2001] SASC 272

7 September 2001