R v Beowulf (No 2)
[2019] ACTSC 82
•29 March 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Beowulf (No 2) |
Citation: | [2019] ACTSC 82 |
Hearing Date: | 28 March 2019 |
DecisionDate: | 29 March 2019 |
Before: | Murrell CJ |
Decision: | No case application for verdict of not guilty is refused. A non-publication order applies to this judgment until the end of the trial. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Application for a verdict of not guilty under s 287 of Crimes Act 1900 (ACT) – Where the co-accused are each charged with murder by way of joint commission – Where the prosecution case is entirely circumstantial – Whether there is evidence of agreement between the accused to commit an offence – Whether there is evidence of causation – Whether taken at its highest the evidence is capable of supporting a verdict of guilty |
Legislation Cited: | Crimes Act 1900 (ACT) ss 12, 287 Criminal Code 2002 (ACT) s 45A Juries Act 2000 (Vic) |
Cases Cited: | Attorney-General’s Reference (No 1 of 1983) (1983) 2 VR 10 Barca v The Queen (1975) 133 CLR 82 Shepherd v The Queen (1990) 170 CLR 573 |
Parties: | The Queen (Crown) Melissa Beowulf (Accused) Thorsten Beowulf (Accused) Bjorn Beowulf (Accused) |
Representation: | Counsel Ms M Jones and Mr T Hickey (Crown) Mr J Sabharwal (Accused Melissa Beowulf) Mr K Archer and Ms J Campbell (Accused Thorsten Beowulf) Ms B Morrisoe (Accused Bjorn Beowulf) |
| Solicitors ACT Director of Public Prosecutions (Crown) Rachel Bird and Co (Accused Melissa Beowulf) Legal Aid ACT (Accused Thorsten Beowulf and Bjorn Beowulf) | |
File Numbers: | SCC 345 of 2017; SCC 346 of 2017; SCC 347 of 2017 |
Murrell CJ
The accused are being tried by a jury for the offence that, on 12 October 2015 at 3 Beagle Street, Red Hill, a residence that was then occupied by the accused and Katherine Panin (the deceased), they murdered the deceased.
Melissa Beowulf is the deceased’s daughter-in-law. Thorsten and Bjorn Beowulf are Melissa’s children and the deceased’s grandchildren.
At the conclusion of the prosecution case, each accused submitted that there was no case to answer.
Pursuant to s 287 of the Crimes Act 1900 (ACT) (Crimes Act):
287Power of judge to record verdict of acquittal
(1)If, on the trial of a person for an offence against this Act or any other territory law, the judge would have power to direct the jury to return a verdict of acquittal in respect of that offence, the judge may, instead of giving such a direction, make an order—
(a)discharging the jury from returning a verdict in respect of that offence; and
(b)recording a verdict of acquittal in respect of that offence.
(2)An order under subsection (1) shall, for all purposes, have the same effect as a verdict of acquittal returned by a jury.
This provision assumes that a judge has power to direct a jury to return a verdict of acquittal, but it does not purport to affect the common law in relation to when that power should be invoked.
Murder is an offence against s 12 of the Crimes Act. In this case, in relation to each accused, the prosecution relies upon s 45A of the Criminal Code 2002 (ACT) (CriminalCode), which provides that a person may be “taken to have committed an offence” by virtue of joint commission.
The prosecution case is almost entirely circumstantial. Consequently, in relation to each accused, the prosecution seeks to prove that, on the basis of the established circumstances, the only reasonable hypothesis is that the accused is guilty of murder: R v Hillier [2007] HCA 13; 228 CLR 618. As in most circumstantial evidence cases, the prosecution seeks to infer intermediate facts from which it argues that, ultimately, the only reasonably available hypothesis is that each accused is guilty of murder by joint commission. In relation to the role of intermediate factual conclusions, see Shepherd v The Queen (1990) 170 CLR 573 per Dawson J at 579 and R v Baden-Clay [2016] HCA 35; 258 CLR 308 (Baden-Clay) at [46]–[47], referring to principles and cases considered in Barca v The Queen (1975) 133 CLR 82 at 104.
Requirements for finding no case
On a no case application, the question is whether, taken at its highest, the evidence is capable of supporting a verdict of guilty: Doney v The Queen (1990) 171 CLR 207 at 212 (Doney); R v LK [2010] HCA 17; 241 CLR 177 per French CJ at [29]. As recently as 20 March 2019, the High Court stated that the test on a no case submission is whether there is evidence capable of supporting a verdict of guilty: Director of Public Prosecutions Reference No 1 of 2017 [2019] HCA 9 at [10] (the 2019 Reference Decision).
On a no case submission, the question is not whether a conviction would be unsafe or unsatisfactory. There should be no examination of the weight or reliability of the prosecution evidence. The prosecution evidence may be tenuous, inherently weak or vague, but if it is capable of supporting a verdict of guilty, the matter must be left to the jury: Doney at 214–215; 2019 Reference Decision at [56].
In a circumstantial case, application of the test requires the court to assume that the prosecution evidence is reliable and that, based on that evidence, the jury will draw the available factual inferences that are most favourable to the prosecution: Case Stated by DPP (No 2) of 1993 (1993) 70 A Crim R 323.
When considering a no case application in R v Bilick (1984) 36 SASR 322 (Bilick), a circumstantial case, King CJ stated at 337:
The question to be answered by the trial judge is whether there is evidence with respect to every element of the offence charged which, if accepted, could prove that element beyond reasonable doubt. … Where there is direct evidence of the actus reus and that evidence is capable of supporting an inference of mens rea, there is a case to answer … Where the case is a circumstantial or partly circumstantial case and therefore depends on inferences, the question may be expanded so that it becomes: On the assumption that all the evidence of primary fact considered at its strongest from the point of view of the case for the prosecution, is accurate, and on the further assumption that all inferences most favourable to the prosecution which are reasonably open, are drawn, is the evidence capable of producing, in the mind of a reasonable person, satisfaction beyond reasonable doubt of the guilt of the accused?
(Emphasis added)
This passage should not be read as supporting the proposition that, on a no case submission, the judge may subsume the role of the jury, deciding whether, taken as a whole, the available inferences are capable of proving each element of the offence beyond reasonable doubt.
In R v R (1989) 18 NSWLR 74, Gleeson CJ approved the following statement of principle taken from Attorney-General’s Reference (No 1 of 1983) (1983) 2 VR 10 at 415:
The question whether the Crown has ultimately excluded every reasonable hypothesis consistent with innocence is a question of fact for the jury and therefore, if the Crown has led evidence upon which the accused could be convicted, a trial judge should not rule that there is no case to answer or direct the jury to acquit simply because he thinks that there could be formulated a reasonable hypothesis consistent with the innocence of the accused which the Crown has failed to exclude. … It is always a question for the jury whether a reasonable doubt exists as to the guilt of the accused …
(Emphasis in original)
To the same effect, see R v JMR (1991) 57 A Crim R 39 at 44 per Lee CJ at CL (Carruthers and Finlay JJ agreeing).
In DPP (Cth) v Bradley [2009] ACTCA 5; 3 ACTLR 159, a reference appeal from a directed acquittal in a circumstantial evidence case, the Court of Appeal approved observations that had been made by King CJ in Bilick, stating at [59]:
Question: Is a trial judge entitled to record a verdict of acquittal pursuant to s 287 of the Crimes Act 1900 (ACT) in respect of a prosecution case based on circumstantial evidence on the basis that the prosecution could not negative all other reasonable inferences which were inconsistent with the guilt of the accused?
Answer: No.
The 2019 Reference Decision
In the 2019 Reference Decision which decided that a “Prasad direction” should not be given at the close of the prosecution case, the High Court emphasised the jury’s role as the constitutional tribunal for the determination of questions of fact. At [53], the Court stated:
Even if it were possible to frame a Prasad direction to avoid [the perception that the judge is pressuring the jury to acquit], there remains the vice that the direction trenches on the adversarial nature of the trial. The duty of the judge is to preside impartially, ensuring that the trial is fair to each party. The prosecution is entitled to have a full opportunity to explain the way its case is put, and to have a verdict from the jury that is based on the application of the law as explained by the judge to their factual determinations.
(Citations omitted)
The Court observed that fairness to the prosecution encompasses the interests of victims and witnesses, who are entitled to know that the prosecution case has been fully ventilated: at [55].
Nevertheless, at [57], the Court apparently accepted that a directed verdict of acquittal was available following a no case submission when it observed:
If evidence taken at its highest is capable of sustaining a conviction, it is for the jury as the constitutional tribunal of fact to decide whether the evidence establishes guilt beyond reasonable doubt.
One issue discussed by the Court was that, at the time when the trial judge had given a Prasad direction, the jury had comprised 13 jurors in accordance with the Juries Act 2000 (Vic); the 13th juror was to be balloted off the jury prior to the jury retiring to consider its verdict. For the purposes of giving the Prasad direction, a ballot had been conducted. At [46], the High Court stated:
The withdrawal of 12 jurors to consider the position in the absence of the 13th juror, that juror’s return to the jury during the continuation of the trial, and the second ballot to again reduce the jury to 12 jurors, was in each instance a serious departure from the proper conduct of the trial. Unless by chance the same juror was balloted off the jury on each occasion, the conclusion is inevitable that the verdicts may have been influenced by a person who was not a member of the jury that returned them.
(Emphasis added)
No party submitted that this passage has ramifications for the present proceedings, in which there are currently 13 jurors; prior to deliberation, one is to be balloted off the jury: see Juries Act 1967 (ACT) s 31A(4). Apart from the fact that this is a “no case” argument and is necessarily to be decided by the judge alone, if the argument succeeds, s 287 of the Crimes Act provides an alternative to a directed jury verdict.
The Crown Case
In opening, the Crown put its case in the following way:
The Crown case here is that the three accused entered an agreement to murder Mrs Panin, intending that the offence of murder would be carried out. This agreement was entered into either prior to Mrs Panin being struck to her right forehead, or shortly after she was struck to her right forehead by one or more of the accused. And when I talk about an agreement, I remind you about what I just said, that an agreement can be non-verbal; a non-verbal understanding and it may be entered into before or at the time that the offence – that the conduct is engaged in.
The Crown alleged that, as a result of being struck to her right forehead by one of the accused, the deceased bled onto a red kilim rug located near the rear exit from the laundry of the premises. The deceased’s body was found on the steps leading from the laundry exit, lying more or less on her back with her head at the foot of the steps and her feet towards the top of the steps. Her left foot was entwined in netting and there were two thongs on the steps. The plug of one thong was disengaged.
The Crown case was that the blow to the deceased’s right forehead was insufficient to kill her. However, it was the beginning of a chain of events that led to her death.
On the Crown case, after the deceased was struck on the forehead, either:
(a)All accused failed to render assistance to the injured deceased, intending to cause her death or with reckless indifference to the probability of causing her death; or
(b)One or more of the accused committed a further act (suffocation, another act causing asphyxia or, perhaps, a push down the back stairs) that caused the death of the deceased and, at the time, each accused intended that the act would cause the deceased to die or was recklessly indifferent to that probability.
The Crown case was that death may have occurred either inside the house or on the back steps.
As to the position of the deceased’s body on the back steps, the Crown said that she may have been placed in that position after she was struck and either before she died (the accused having left her there to die) or after she had died inside (in an attempt by the accused to “stage” an innocent death by tripping and falling).
Alternatively, the Crown said that the altercation that had commenced inside the premises may have continued outside and the deceased may have been pushed down the stairs or fallen down the stairs in the course of the continuing altercation, causing death directly. A further alternative was that, as a result of a continuing altercation, the deceased may have fallen down the back steps and the accused may have left her there to die.
The evidence adduced by the prosecution did not narrow the array of possibilities that had been canvassed in the opening. In particular:
(a)No particular accused was identified as the person responsible for striking the deceased’s forehead or performing any other specific act that contributed to her death.
(b)The experts could not agree on the probable medical cause of death; different experts favoured cardiac arrhythmia, positional asphyxia or fatal concussion.
(c)No probable mechanism of death (a blow to the head, suffocation or a fall or push down the stairs) was identified.
(d)Consequently, no location was clearly identified as the location where the deceased had died. On Dr Duflou’s analysis, it was likely that death had occurred on the stairs, but no expert excluded death at another location.
(e)There was no obvious explanation for the position in which the deceased was found, lying head down on the back steps; whether the deceased had been placed there, had been pushed or had tripped and fallen into that position, or whether she had moved to that position from another, similar position, and had then been unable to get up.
(f)All experts left open the question of whether the deceased’s death was suspicious or unsuspicious. Dr Duflou, a prosecution expert, conceded the reasonable possibility that the deceased had fallen down the stairs, landed in the position in which she was found and sustained positional asphyxia.
In order to prove the offence of murder, it is not necessary for the Crown to prove the medical explanation for the death of the deceased. However, it is obvious that failure to prove the medical cause of death may make it more difficult to establish that the death was unnatural and it was an act of the accused that caused the death.
Nor is it necessary for the Crown to identify the precise act of an accused that has caused the death of the deceased: R v PL [2009] NSWCCA 256; 261 ALR 365 at [46]-[49] per Spigelman CJ (McClellan CJ at CL and RA Hulme J agreeing). However, where the precise act cannot be identified, it may be more difficult to establish intention to kill: Royall v The Queen (1990) 172 CLR 378 per Brennan J at 404-405.
In a case of murder by joint commission, the inability to prove the medical cause of death, the mechanism of death (even to the extent of whether the mechanism was natural or unnatural), or the critical acts of particular accused, greatly amplifies the difficulty of establishing cause of death and intention to kill.
In this case, for the purpose of establishing intention, the Crown relies heavily on motive. Motive was an important consideration in Baden-Clay, where the deceased had not died of natural causes but the cause of death was unknown. At [69] the High Court said:
It was not unreasonable for the jury to conclude, on the whole of the evidence, that it tested credulity too far to suggest that [the] evident desire [of the accused] to be rid of his wife was fortuitously fulfilled by her unintended death.
On a no case application, it is not for the Court to critique the prosecution case for the purpose of determining whether, individually, intermediate factual conclusions should be drawn, whether (when intermediate factual conclusions are considered together) the Crown has excluded all reasonable hypotheses consistent with innocence, or whether any conviction would be unsafe and unsatisfactory.
Intermediate factual conclusions upon which the Crown relies
In the present case, the areas of factual dispute were limited. Many of the concessions that the accused sought from the prosecution witnesses were made, at least to some extent. Where concessions were not made, the prosecution evidence must be taken at its highest.
The Crown argued that, based on the evidence, it was open to the jury to draw the following inferences:
(a)The accused were financially motived to kill the deceased, and their motivation increased prior to, and on, 12 October 2015.
For many years, the accused had been financially dependent on the deceased. Immediately prior to her death they were (to use the expression adopted by defence counsel) “in straitened financial circumstances”. The family had significant debts. Melissa Beowulf was relying on the proceeds of the sale of a Woollahra property in the deceased’s name to maintain the family’s lifestyle and purchase a property at Cuttagee on the NSW south coast.
Melissa and Thorsten Beowulf knew that the deceased had recently changed her power of attorney (restricting Melissa Beowulf’s capacity to control the deceased's finances). The accused may have known that the deceased was planning to change her will when she met her solicitor on 14 October 2015. Even if they did not know that she intended to change her will, having regard to the recent change to her power of attorney, they may have feared that she would change it to their detriment. In fact, the deceased intended to change her will in a manner that would benefit Thorsten and Bjorn Beowulf (but disadvantage Melissa Beowulf) by making direct provision for them, but they may not have known that.
The accused may have perceived that their financial security was further endangered by the deceased’s imminent move from the family home at 3 Beagle Street into a retirement village, where she would be independent of the family and the accused would be less able to influence her. On 19 September, Thorsten Beowulf undertook an internet search to obtain information about powers of attorney and dementia.
(b)The deceased enjoyed good health for her age
A number of witnesses attested to her general good health and optimism concerning her imminent move to a retirement village.
(c)The relationship between Melissa Beowulf and the deceased was acrimonious.
Witnesses had made observations to that effect and the deceased had reported difficulties to police and friends.
(d)Melissa Beowulf had a tendency to become enraged concerning changes to the deceased’s power of attorney and will and to become physically aggressive towards the deceased.
On 15 September 2015, there was an angry exchange between Melissa Beowulf and the deceased concerning changes to the deceased’s power of attorney. The deceased reported to a friend that, on about 8 October 2015, Melissa Beowulf had been physically aggressive towards her.
(e)Thorsten and Bjorn Beowulf had a long-standing dislike of the deceased (whom they believed had been reluctant to acknowledge them as her grandchildren), albeit that this dislike was primarily reflected in disrespectful conduct towards her and there was no suggestion of physical aggression towards her.
(f)Thorsten and Bjorn Beowulf were very loyal to their mother and they believed that she was entitled to control the family finances, including the proceeds of sale of the Woollahra property.
Thorsten Beowulf was present during the altercation between his mother and the deceased on 15 September and must have been aware of the level of his mother’s concern regarding the family’s financial resources.
(g)At all relevant times both before and after the deceased’s death on 12 October 2015, the accused were together.
They were together at 3 Beagle Street, at a café in Kingston and at Fyshwick, before they returned to 3 Beagle Street.
(h)The accused had the opportunity to kill the deceased. The deceased was alive at 12:39 on 12 October, when the accused were at the premises, and it is likely that she died within the ensuing hour while they were still there.
According to Dr Duflou, it is most likely that the deceased died in the hour after 12:39.
(i)It is likely that one or more of the accused overheard a conversation at 12:39, when the deceased spoke by telephone to a friend and arranged a meeting with her solicitor to change her will, which meeting would not be attended by Melissa Beowulf, and, having overheard the conversation, they stopped what they were doing.
The accused were all present in the house; they did not leave until about 14:00. As the house is of modest proportions it may have been relatively easy to overhear the conversation. Exhibit C (the email referred to below) evidences that, by later that day, Melissa Beowulf was aware that the deceased was to see her solicitor on 14 October.
The last human activity for 12 October on the computer used by computer user "Mel" occurred at 12:41. The last human activity on the computer used by computer user "Thor" occurred at 12:37.
(j)Melissa Beowulf and/or other accused were involved in an altercation with the deceased in the hallway outside the laundry, where the red rug was located, resting on underlying carpet, and during the altercation the deceased suffered a laceration to her forehead.
Prior to her death, the deceased was injured by a blunt force impact to her forehead consistent with a blow that was not sufficient not kill her; blood from the injury found its way onto her forehead and hands because she touched the injury after it occurred.
Despite the fact that it had been dry-cleaned, on forensic examination the red rug was found to contain three spots of the deceased’s blood.
(k)After the deceased was injured, the accused went to a Kingston café, taking the problematic stained red rug with them. This interlude provided an opportunity to plan what would occur next.
The accused were at the Bittersweet Café at Kingston between 14:14 and 14:43 on 12 October.
While they were there, Melissa Beowulf displayed a consciousness of guilt when she lied in an email to her solicitor, implying that she thought that the deceased was still alive, asserting that she was to accompany the deceased when the deceased met with her solicitor on 14 October, and proposing that the deceased’s friend (whom Melissa Beowulf despised) be offered a power of attorney for the deceased.
(l)The accused travelled from Kingston to Fyshwick, where the problematic red rug was concealed in the family storage unit.
The red rug had been removed by the time that Niels Beowulf-McGowan and Diane McGowan arrived at 3 Beagle Street on the afternoon of 12 October.
At about 14:51 on the afternoon of 12 October, the soiled red rug was deposited at the family storage unit in Yallourn Street, Fyshwick. Telephone records indicate that the accused were in the vicinity of the storage unit at about 15:16.
(m)The positioning of the deceased’s body on the back stairs does not reflect a “natural” trip and fall. It is consistent with the accused placing her body in that position to give the impression of an innocent fall.
It was the daily practice of Diane McGowan to clear any impediments from the back steps, as the deceased took that route to the clothesline, yet the position in which the deceased’s body was found suggested that she had tripped in netting that had been left on the steps.
The position of the thongs on the back steps was somewhat inconsistent with the deceased having tripped in the netting.
Although the deceased was found lying on her back, the absence of back injuries and the presence of facial injuries suggested that, if anything, she had fallen forwards. Dr McIntosh said that, in the case of a fall, he would have expected the deceased to have sustained greater injury and, had she fallen on her back, he would have expected injuries to her back.
(n)More than one accused was involved in placing the body on the back steps.
If the body was placed on the back steps, the placement would have required the efforts of more than one person.
(o)In the period of about 30 minutes between when the accused returned from Fyshwick to 3 Beagle Street and when Melissa Beowulf contacted 000, the accused were able to arrange the deceased’s body and remove any obvious evidence of blood on the carpet that had been lying under the red rug.
Melissa Beowulf did not ring the emergency number until 30 minutes after the accused had returned to 3 Beagle Street at about 15:24 on 12 October 2015.
(p)In the presence of Bjorn Beowulf, on 12 October, Melissa Beowulf displayed a consciousness of guilt when she lied to an ambulance officer and police officer.
Melissa Beowulf said that the accused had been absent from the house between 10:00 and 15:30, i.e. throughout the period when the deceased may have died. On 15 November 2015, she told police that they had left the house at about 14:00, leaving the deceased behind because she had taken too long to get ready. Independent evidence confirmed that the accused did leave the house at about 14:00.
(q)Within a day or two of the deceased’s death, Thorsten Beowulf displayed a consciousness of guilt when he lied to his brother, Thorin, saying that the accused had left the premises at 10:00.
(r)Bjorn and Thorsten Beowulf demonstrated a consciousness of guilt through their dealings with the red rug.
On 13 October, Bjorn Beowulf took the rug to a dry cleaner. In March 2016, prior to the rug being returned to Dianne McGowan, all the accused were anxious to ensure that it was dry-cleaned (and, preferably, destroyed in the dry cleaning process).
At about 22:52 on 13 October 2015, while the accused were in telephone communication, Bjorn Beowulf searched the internet for “blacklight torch” (an instrument that may reveal the presence of blood that is not visible to the naked eye) and the search showed stores where such an item may be available for purchase.
(s)Bjorn Beowulf demonstrated a consciousness of guilt through his dealings with the carpet that had been on the floor underneath the red rug.
After the deceased was found and after the red rug had been removed, Bjorn was seen to be scrubbing the carpet in an area where (on the Crown case), the deceased was struck to her forehead. Lies were told by at least one of the accused regarding the scrubbing of the carpet; that Thorsten had vomited on the red rug and then vomited on the carpet underneath. Dr Duflou said that the explanation suggesting a large amount of vomit was scientifically unlikely.
(t)The carpet outside the laundry was removed by one or more of the accused (and, presumably, with the agreement of Melissa Beowulf and Thorsten Beowulf, who were living there) because it was feared that it might provide evidence.
By the time that the police searched the premises in June 2013, the carpet had been removed, ostensibly to enable renovations. However, it was the only area of carpet that had been removed from the premises.
The defence submitted that none of these inferences is available. I disagree. There was evidence capable of supporting each inference. That is not to say that the evidence supporting any inference was strong or uncontroversial or that it would persuade a jury to draw the inference.
In addition to this circumstantial evidence, the Crown relies on implied admissions of guilt in conversations recorded between January and June 2016. In particular:
(a)On 27 March 2016, in a conversation between Melissa and Thorsten Beowulf concerning the death of the deceased, Thorsten Beowulf commented “probably did her a favour” and the pair discussed the difficulty faced by the police in proving that the deceased had been murdered.
(b)On 20 June 2016, Thorsten and Bjorn Beowulf discussed the fact that police had found spots of blood on the red rug, and that it might be the deceased’s blood. They also discussed the possible anomaly posed by the position of the netting and the thongs. Thorsten described both the blood and the anomaly as “weakly circumstantial”. The brothers agreed that they should have destroyed the rug. Bjorn Beowulf observed “that’s part of the reason why I wanted to get rid of that bit of carpet”.
The defence submitted that the covertly recorded conversations reveal a number of exculpatory statements and argued that, despite the fact that many conversations were recorded over a period of five months, on no occasion did any accused make a direct admission of guilt.
There may be merit to this submission, but it is more appropriately advanced to a jury.
Elements of the offence
For present purposes, I take the elements of the offence to be as follows:
(a)Agreement. Before or at the time that conduct causing death (act or omission) occurred, the accused and at least one of the co-accused reached an agreement that the conduct of one or more of them would result in the death of the deceased.
(b)Conduct. One or more of the parties to the agreement engaged in conduct (act/s and/or omission/s).
(c)Death. The deceased died.
(d)Causation. The conduct (act/s and/or omission/s) caused the death of the deceased (substantially or significantly contributed to her death).
(e)Intention. At the time of the conduct, the accused intended that an offence would be committed under the agreement, i.e. he or she:
(i)intended that conduct of the type in question would occur; and
(ii)intended that such conduct would cause the death of the deceased.
Defence submissions on the no case submission
The defence submitted that:
(a)There is no evidence of “agreement” between the accused that any conduct would result in the deceased’s death (Element (a)).
(b)There is no evidence about how death was “caused” and no evidence that it was “caused” by an act or omission by an accused (Element (d)).
Consideration
Agreement
As to the existence of an agreement, based on the above available inferences, a jury could reason that:
(a)The accused Melissa Beowulf had a compelling financial motive to kill the deceased, with whom she had an acrimonious relationship. The accused had a tendency to become enraged concerning changes to the deceased’s power of attorney and will, and to become physically violent towards the deceased. The accused knew that the deceased had recently changed her power of attorney to limit the accused’s access to the deceased’s assets and it is likely that, on the morning of 12 October, shortly before the deceased died, the accused learned that the deceased was to meet her solicitor in the absence of the accused.
(b)Given her tendency to be violent towards the deceased and the likelihood that she ceased activity on her computer shortly before the deceased died, it is likely that Melissa Beowulf struck the deceased on the forehead in the vicinity of the red rug.
(c)The ensuing altercation alerted Thorsten and/or Bjorn Beowulf and prompted them to assist their mother. The deceased died shortly thereafter. As Thorsten and Bjorn Beowulf were present in the house, disliked the deceased and were very loyal to their mother, they assisted her, or at least failed to take action, to prevent the death of the deceased.
(d)Immediately following the deceased’s death in the hour after 12:39, all the accused agreed to remove the inculpatory red rug and then conferred over coffee about what should occur, resulting in the generation of an email from Melissa Beowulf to her solicitor and the deposit of the red rug at the family storage unit.
(e)After depositing the rug, the accused returned to 3 Beagle Street, where they “staged” the placement of the deceased’s body and endeavoured to remove stains from the carpet. At least two of the three accused moved the deceased’s body to the back steps.
I accept that this line of reasoning could be characterised as unsafe. But that is not to say that it is unavailable.
I also accept that, if the post offence statements and conduct of Thorsten and Bjorn Beowulf that are relied upon to show consciousness of guilt are disregarded, there is very little evidence to support the contention that they were parties to an agreement (or, indeed, had anything to do with the deceased’s death). Their post offence conduct is just as consistent with them being accessories after the fact to murder (or manslaughter), as it is consistent with them being parties to an agreement to murder.
However, the way in which the post offence conduct is viewed is a matter for the jury. When the relevant circumstances are considered together, they provide some evidence of agreement, albeit that the evidence may be tenuous, weak or vague.
Act causing death
There is evidence from which the jury could conclude that an act or omission by one or more of the accused caused the death of the deceased. Relevant circumstances include the absence of any appealing explanation of how the deceased’s body could have come to be in the position in which it was located by innocent means, the nature of the injuries suffered by the deceased, the presence of her blood on the red rug, the post offence conduct of the accused vis-à-vis the red rug and the incorrect statements made by the accused to the effect that they were absent from the premises between 10:00 and 15:30 on the day of the deceased’s death.
Conclusion and order
In submissions on the no case application, the defence highlighted the many deficiencies in the prosecution case. But that does not mean that the case should be withheld from the jury. As the High Court emphasised in the 2019 Reference Decision, the jury is the constitutional tribunal for the determination of questions of fact.
Accordingly, I make the following orders:
(a)The application is refused.
(b)These reasons are not to be published other than to the parties, until the end of the trial.
| I certify that the preceding forty-eight [48] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: |
15
12
4