R v Byers
[2000] QCA 120
•11 April 2000
SUPREME COURT OF QUEENSLAND
CITATION: R v Byers [2000] QCA 120 PARTIES: R
v
BYERS, Patricia Margaret
(appellant)FILE NO/S: CA No 100 of 1999
SC No 118 of 1999DIVISION: Court of Appeal PROCEEDING: Appeal against Conviction ORIGINATING COURT: Supreme Court at Brisbane
DELIVERED ON: 11 April 2000 DELIVERED AT: Brisbane HEARING DATE: 26 November 1999 JUDGES: Pincus and Davies JJA, Helman J
Judgment of the CourtORDER: Appeal against conviction dismissed CATCHWORDS: CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – HOMICIDE – DEATH – PROOF AND EVIDENCE - body of deceased never found – failure of persons in regular contact with deceased to hear from him after certain date – appellant alleged frequent contact with deceased after that date – evidence of others as to contact with deceased after that date not reliable – whether inference of death could be drawn
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – FRESH EVIDENCE – GENERAL PRINCIPLES - fresh evidence as to sighting of deceased after alleged date of murder admissible – evidence equivocal – whether admissible
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – CONDUCT OF LEGAL PRACTITIONERS – allegation that defence counsel did not properly carry out duties
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – OBJECTIONS AND POINTS NOT RAISED IN COURT BELOW – MISDIRECTION AND NON‑DIRECTION – PARTICULAR CASES – objection to some statements of trial judge in summing-up – whether any substance in objections
Gipp [1998] HCA 21; (1998) 194 CLR 106, distinguished
Longman (1989) 168 CLR 79, distinguishedCOUNSEL: The appellant appeared on her own behalf.
L Clare for the respondent.SOLICITORS: The appellant appeared on her own behalf.
Director of Public Prosecutions (Queensland) for the respondent.
THE COURT: The appellant was, after a long trial, convicted of having murdered her de facto husband in early July 1990. The trial took place in 1999 and the evidence on both sides was, it appears, affected by dimmed recollections. The Crown case was that the appellant murdered C T Gottgens, a ship's engineer, between 2 July 1990 and 7 July 1990, but there was no evidence called as to the mode of death, nor did any witness claim to have seen Gottgens' dead body. A thorough enquiry had failed to turn up any evidence, such as migration documents, that Gottgens was still alive.
The Crown case was that Gottgens was in the appellant's company in a house at Yatala on 3 July 1990 and that the appellant killed him on that day or on 4, 5, 6 or 7 July 1990. It set out to prove that, having begun preparations to do so even before his death, the appellant, in the months after Gottgens was killed, managed to acquire by a series of forgeries real property and a bank account belonging to Gottgens and, also by forgeries, ran up substantial debts using his credit cards. The Crown said that after the dates on one of which he was allegedly killed, none of the people, including Gottgens' children, who had been accustomed to be in contact with him from time to time, ever saw or heard from him again.
The defence case was that although the appellant and Gottgens separated in July 1990 they were in touch with one another and with other people for some months after the period during which he was alleged to have been killed. Further, it was the defence case that after the time of the alleged death a number of documents came into existence which were signed by Gottgens, such as documents relating to bank transactions and to dealings upon credit cards. According to the evidence of one Marheine, who was called as a handwriting expert, none of the documents just mentioned was genuine and it was put for the Crown that all these documents were forged by the appellant as part of the process of getting hold of the deceased Gottgens' property and using his credit cards. The evidence of Marheine was, as it appears to us, critical; if it was accepted there must have been little likelihood that the appellant would be acquitted.
The appellant was represented by experienced counsel at her trial but had no representation on the appeal. Plainly an intelligent woman, she advanced many criticisms of the evidence on which she was convicted and also asserted that her representation below had been deficient in a number of respects and that the judge had misdirected the jury.
It is intended to deal first with the appellant's complaint that the verdict was unsafe, on the ground that it was not open to the jury, on the evidence, to convict her. The Crown's entirely circumstantial case went back to events well before and well after the time of the alleged murder. It is convenient to begin with evidence relating to events in late June and July 1990.
On 28 June 1990, Brenda Payne, who was involved in a business supplying do‑it‑yourself conveyancing kits, signed a receipt recording having received $60 from the appellant for such a kit. On the same day, Gottgens signed a letter the authenticity of which is not in dispute, headed "Dear Trish", recording his acceptance of an offer of $176,000 for the Yatala house. The letter also set out other terms relating to the property, apparently in the expectation that the parties would shortly separate from one another. The letter said that Gottgens intended to take certain other items which he nominated: a television set, a video recorder, a radio and other items. In fact the only substantial item he took, according to the appellant's statement to a Mr Asquith, was a bed which had been in the Yatala house the two occupied. On 29 June 1990 the appellant wrote to McCullough Robertson, solicitors who had been acting for Gottgens, and advised them about matters relevant to the separation saying:
"Please find enclosed copy of agreement that Carl has asked me to forward to you for your perusal. No doubt he has given you instructions. Included is a copy of his acceptance letter to me".
According to evidence the appellant gave that letter did not set out the final arrangement she made with Gottgens. She said that the final arrangement was that he was to get only half of the $176,000 price agreed as she had to "finish off things like the car port, the driveway, the pergola ... all the finishing things that needed to be done to the house had to be finished ...".
In May 1990 Gottgens had made a booking to travel to Bangkok by Thai Airways on 3 July 1990 and to return to Brisbane from Bangkok on 16 August 1990. His purpose in doing so was to go to a woman named Saengduan Sae-Ngow, known as "Ooy" for short, whom he had met in a bar in Singapore and had arranged to marry. On 25 June 1990 Gottgens changed his departure date from 3 July 1990 to 6 July 1990 and on 29 June 1990 he again contacted his travel agent (Sarah Fleming) and changed his return date, but left his departure date at 6 July 1990. Gottgens' American Express account was debited with the sum of $1,385 for the airfare and $187 for travel insurance. When Gottgens spoke to Ms Fleming on 29 June 1990 he said he was in New South Wales and would be up in a few days to collect the tickets. They were never collected. Accordingly the ticket was cancelled and the appellant was told that a refund would take a number of weeks. On 3 July 1990, according to the evidence of R A Roberts, he drove Gottgens from Yamba in New South Wales to Brisbane, taking him home to the house at Yatala at which he had been residing (when not absent working) with the appellant. Roberts was a marine superintendent employed by the shipping company which also employed Gottgens. According to Roberts, Gottgens had been overpaid about $1,000 and it was agreed between the two of them that the amount would be deducted from Gottgens' next pay. Gottgens had leave due but was expected to return to work in the ordinary course, after his leave. Roberts never saw him again after dropping him at the Yatala house on 3 July.
There is a letter dated 3 July 1990 purporting to be signed by Gottgens and written to R A Hunter, then the manager of the Sunnybank Hills branch of the National Australia Bank. The letter informed Hunter that Gottgens had decided "not to borrow the money re the loan discussed" and said he was going to "sell the house instead". The letter asked that the certificate of title be sent "to the above address under registered mail asap". The reference to a loan related back to discussions which Gottgens had had with Hunter in May. The evidence from the handwriting witness Marheine was that the letter was a forgery. On 3 or 4 July, the appellant phoned Fleming, who had never heard of her before, and said that Gottgens was sick and unable to travel to Bangkok.
On the following day, 5 July 1990, the appellant ordered a new bed to be delivered to the Yatala house. We would comment that the Crown alleged a murder on 3, 4, 5, 6 or 7 July; but it seems to us that if the Crown case is accepted, then the likely reason for the order of a new bed was that the former bed had sustained some damage; on that supposition the death must have occurred on or before 5 July.
6 July was, as we have mentioned, the date on which Gottgens was due to leave for Bangkok. The new bed was delivered on that date and there is an ink entry ("Carl left") in the appellant's diary with, partly overwritten, in pencil, the entry "dropped him in city!!". On 9 July the certificate of title for the Yatala property, which had been requested on 3 July, was sent. According to the appellant's evidence the final agreement was that between $110,000 and $120,000 was to be paid for the Yatala property. She said she was not exactly sure when it was paid but that she thought she started giving it to Gottgens in the following week "in bits and pieces".
On 12 July 1990 the appellant completed a letter which she had begun on 3 June 1990. In the addition dated 12 July she said:
"Carl has left a lot of his gear behind. Especially clothes. He said he does not want them. Some of them I will keep for you as it is stupid to throw them way".
This letter was sent to her son and his wife. We interpolate that by way of explanation of the leaving behind of "a lot of his gear", the appellant has contended that he travelled "with one small suitcase and an overnight bag", having only a small shared cabin on the ship. This is hardly consistent with his taking a double bed when he left. On the following day, 13 July 1990, the appellant wrote a letter to McCullough Robertson addressed to "Dear Annie", that being a reference to Ms Anne O'Connor who had acted for Gottgens in a number of matters. Although purporting to be signed by Gottgens, it is common ground that the letter is a forgery produced by the appellant. It asked that a copy of Gottgens' Will be sent to a Mr David Clowes at a certain post office box. That was done and the appellant got the copy. Clowes, who had been a business associate of the appellant, said he knew nothing of any request for Gottgens' Will. In an endeavour to explain this forgery, the appellant gave evidence to the effect that the appellant had told her he had made a new Will leaving everything to her "apart from the things I want to give to the girls" and she was suspicious about that. This conversation is improbable, since even on the appellant's version there was a bitter parting of the ways.
On 16 July 1990, according to the Crown case, the appellant produced two more forgeries. One was a letter written to R A Roberts, the marine superintendent who had brought Gottgens home on 3 July 1990. It purported to be a letter of resignation by Gottgens and a request to send "my gear and any mail on to Trish". It was lavish in praise of the appellant:
"I was also lucky Trish paid me the money all up front in cash. She has been terrific and maybe Ive (sic) made a bad decision. I feel bad but she is smart and good looking. I can't see her being left on the shelf".
Accompanying the letter was a $30 cheque, also alleged to be forged, for sending Gottgens' "gear and any mail". It should be added that the evidence was that the typing in the letter of 16 July is a product of the same typewriter as the admitted forgery of 13 July 1990. Further discussions of this letter appear below, in comments upon the trial judge's directions.
On 18 July, according to the Crown case, two more forgeries were produced to complete the transfer of the Yatala property to the appellant; they were a transfer of the title and a notification of change of ownership to the Valuer-General. On 20 July the transfer of the Yatala property was lodged for registration and that was registered on 25 July. According to the Crown case, then, within a few weeks of Gottgens' death his principal asset had been transferred by forgery into the appellant's name and the process of extracting funds from moneys he had in the bank had begun.
On 29 June 1990, Gottgens' account no 02 977-1773 with the National Australia Bank at Sunnybank Hills was $1,598.31 in credit and by the following January it was reduced to zero. On the Crown case, Gottgens' three bankcards were used by the appellant, with a series of forgeries, to run up bills, by drawing cash and paying for goods and work, which were never paid. Much of the appellant's evidence consisted of attempts to explain away transactions which, if the explanations were true, evinced surprising generosity on Gottgens' part. Gottgens' MasterCard was, for example, used to buy a die-cast model car which was delivered to Yatala and later found by the police at another residence, being that of the appellant's son Alan.
In November 1990 – according to the Crown case, 4 months after the murder – a carpet firm was telephoned by a woman identifying herself as Mrs Gottgens who asked for a quote on carpet for the Yatala house. A lounge room and 3 bedrooms were to be covered and the carpet was paid for with an American Express card in Gottgens' name. The voucher could not be located, but the proprietor of the carpet firm gave evidence that the voucher was signed by the woman who had ordered the carpet, at the showroom. That evidence was supported by the proprietor's wife. Another transaction, also relating to an improvement to the Yatala house, was sworn to by the proprietor of a pergola centre. He said that he received a phone call from a "Mrs Gottgens" in November 1990. He arranged for the woman to come to his house and the woman showed him a business card with "Trish" on it. He said that "Trish" appended the signature "C T Gottgens" to the relevant contract and other documents including the American Express voucher; again, Gottgens' card was used.
It has to be said that efforts to explain away this and other similar evidence, by the appellant, were, fairly consistently, unconvincing. The same applied to some of the deposits made in the Gottgens' bank account. On 7 August 1990 for example, a credit of $2,774.97 appeared in Gottgens' account referred to above. That consisted in $2,200 in US currency travellers cheques. The appellant admitted having put the cheques in question into the bank. When asked about the US travellers cheques, she said that Gottgens "would have given them to me".
The conclusion that from July 1990 on, the appellant obtained, so far as it was possible, Gottgens' property and ran up substantial credit card bills on his account, for her own benefit, was almost inescapable. This did not, of course, prove the murder, for the transactions could have been frauds upon a living person rather than on an estate. But if Gottgens were still alive after July 1990, one would have expected him to become aware of and take steps to put an end to such transactions on his various accounts. It was common ground that he was meticulous in financial matters, such as paying debts; yet he supposedly acquiesced in the appellant's use of credit cards to run up, for her benefit, debts which he never paid.
Contact with Gottgens after July 1990
Among the witnesses called were Phillipa Grayburn, Nancy Dekker, Ella Celon and Carla Gottgens. Mrs Grayburn had been married to Gottgens; they were divorced in June 1983 but she kept in contact with him, principally by telephone. Mrs Grayburn last saw Gottgens in 1988 when Gottgens visited her to see their younger daughter Carla. She said she last heard from Gottgens in August or September 1989, when she spoke to him for a long time by phone. Mrs Dekker, Gottgens' sister, who had been in "fairly regular" contact with him, never heard from him after 1989. Ella Celon, another daughter, said that after her parents separated she used see her father occasionally. In October 1988 she went to Europe for some years. She would be in touch with her father, she thought, about three to four times a year. She particularly remembered a phone call in July 1989 which was about the date of her birthday (11 July 1989). At Christmas 1989, she received a Christmas card from him but she had not seen or heard from him since then. About the end of 1990 she attempted to contact him by telephone at the Yatala house, but was told by the appellant that her father was living on a boat somewhere in south-east Asia and was very hard to contact. The younger daughter Carla, it appeared, had little contact with her father, not having seen him since 1987.
Other of the Crown witnesses who for one reason or another could have expected to hear from Gottgens after July 1990 had not done so. There was also the fact that, if Gottgens was alive after July 1990, one might have expected that some document, however trivial, which unequivocally originated from Gottgens after his return to Yatala in that month, would have been produced; but none was.
To some extent, reference has already been made to the appellant's reactions when people inquired after Gottgens. The travel agent Ms Fleming was told on 3 or 4 July 1990 that Gottgens could not travel to Bangkok because he was sick. The appellant admitted having made the call and said that Gottgens was not in fact sick. It seems to us not improbable that if the appellant murdered him, he was dead by the time of that phone call. Ms Sae-Ngow – the woman called "Ooy" – was phoned by a woman speaking with an Australian accent and told that Gottgens had had an accident and could not come. The appellant told one Loxton, an AMP Society manager, "some time around June 1990" that Gottgens had been expected back from a trip but had not come back and that she did not know where he was.
J L Cole, an AMP agent at the time, who knew the appellant and Gottgens, was told by her "at some stage" that Gottgens had left her, having gone to one of the Asian countries and got married. On Cole's 50th birthday, on 28 July 1990, there was a party which the appellant attended with Asquith, mentioned above. The appellant told Asquith that Gottgens would not marry her, that he had gone to "the Philippines or Singapore" and had married another woman. She told Gottgens' sister Mrs Dekker in 1990 that Gottgens had gone to Asia and was going to marry an Asian girl.
M J Keane knew the appellant and had met Gottgens on a number of occasions. He became aware some time in 1990 that the two had separated. She was told by the appellant that Gottgens had married an Asian girl. In her own evidence, the appellant was surprisingly vague about the circumstances of the final separation. When asked how long she and Gottgens were together as a couple, she answered:
"Probably the end of 1981 until 1990 when we made final resolution".
She said in effect that when differences arose between them they agreed to separate but "he didn't exactly say where he wanted to live". She said that Gottgens moved from the Yatala house "on the week-end that I went to Mount Larcom". According to her diary she was in Mount Larcom on 7 and 8 July. She asserted that after that week-end Gottgens "frequently" visited Yatala. Curiously, she did not know where Gottgens was living in December 1990 when, according to the appellant, he was supplying the money to her for the repair of a boat. The last entry she made in her diary relating to Gottgens was dated 6 July 1990, although she claimed to have seen him frequently later than that. She told a National Bank manager, Hunter, on 3 December 1990 that Gottgens had been home on the week‑end to collect some belongings and would be home again at Christmas. Although she knew the address Ooy had given, she never told it to anyone.
Appellant's case, and criticisms of Crown case
The appellant gave evidence herself and witnesses were called on her behalf. She advanced a number of criticisms of the Crown case, orally and in writing, on her appeal. The witnesses called in the appellant's case, apart from herself, were M J Murray, B C Payne and P E Maitland. Murray said that he saw Gottgens alive at the Yatala house in mid-December 1990, but he admitted that he had told a detective that he had not seen Gottgens since the late 1980's. There were, as the Crown contended, implausible aspects of his evidence, not the least of which was that he claimed not to know the state of the relationship between the appellant and Gottgens in December 1990; that he was friendly towards the appellant was evident enough from his evidence and particularly from the fact that he had had sexual intercourse with her.
Brenda Payne whose credit was unchallenged, gave evidence to the effect that when the transaction involving the transfer of the Yatala house to the appellant was being effected she had contact with Gottgens. But she admitted the vagueness of her recollections and, in effect, that the only client's name in her records was that of the appellant. It seemed clear from other evidence that at the time Mrs Payne thought or suspected she had seen Gottgens, he was in fact in New South Wales. P E Maitland gave evidence which appears to be of marginal relevance.
The appellant seeks to produce additional evidence from two people who are said to be prepared to give evidence that the appellant was alive after July 1990. The date spoken of by Derksen is "sometime between the end of July and I think September 1990" when Derksen claims to have had "some limited conversation with" Gottgens. Burrell claims to have seen Gottgens on 4 August 1990. Each of these witnesses has made a declaration in late 1999 and neither claims to be relying on anything other than unaided recollections for the assertions that Gottgens was seen on the occasion in question.
As to the appellant's criticisms of the Crown case, the following account is selective rather than comprehensive; it is intended to exemplify the character of the points made.
The important witness Marheine is criticised on the basis that his work was not independently tested. Allied to this is the assertion that the appellant's counsel at the trial failed to procure expert evidence to attack Marheine. It is in our view unlikely that the defence failed to consult any expert. Enthusiasm for calling expert evidence about the matter of handwriting might have been diminished by the circumstance that some of the relevant documents seem to be, on the face of them, obvious forgeries and others were even admitted to be forgeries; as an example of the former, we instance Exhibit 3, dated 19 October 1990, the writing of which is quite different from writings actually made by Gottgens – see e.g. Exhibit 4 dated 28 June 1990. The appellant also said that the fact that Marheine had spent a great deal of time on his work and so must have charged a very large fee must have unconsciously influenced him. She said that Marheine's evidence "exhibited gross bias". Perhaps inconsistently with that, the appellant emphasises concessions which Marheine made. Circumstances which were established were reconciled with Marheine's evidence, one of which was that it was the appellant who was, at least speaking generally, the beneficiary of what Marheine said were forgeries. Another was that a letter supposedly written by Gottgens on 16 July 1990, lauding the appellant and referred to above, purports to come from Darwin. It was in fact typed on the typewriter at Yatala.
Another criticism of the Crown case and one which appears to us to have validity is that the witness Sae-Ngow said she spoke to Gottgens on 5 July 1990. It is argued for the Crown that the date of death was probably 5 or 6 July, but that seems to us improbable, on the Crown's case. If the appellant killed Gottgens on 5 or 6 July, she did so after she had apparently written to obtain the Certificate of Title to the Yatala property, on 3 July, and had cancelled his overseas trip on the (admittedly false) excuse that he was ill, on 3 or 4 July. These events, as a matter of probability at least, would have followed and not preceded the killing. One must conclude that the witness Sae‑Ngow, who did not claim to be sure of the date, gave incorrect evidence on the point.
The appellant also criticises some evidence of DNA matching, relating to spots found in the room. It is clearly open to criticism, since it could not be proved what the spots consisted of; but if the evidence was accepted by the jury it could have resolved any doubts about the reason for the order of a new bed on 5 July 1990 and the reason for the statement to Asquith, unchallenged in cross-examination, that the only thing Gottgens had taken with him was the bed.
Criticisms of judge's directions
These criticisms are fairly numerous, but many focus on minor points of detail which could not determine the outcome of the appeal. In general, the criticism of the directions is along the lines that they were slanted in favour of the Crown case. It is true that a reader of the directions would think the Crown had a very strong case; but that was, in our opinion, the plain fact and the judge was not obliged to try to mould directions which gave a contrary impression. Her Honour's summing‑up was in our opinion a fair and accurate one which cannot sensibly be criticised as displaying partiality. It is not proposed to deal with all the complaints about the summing-up, but only with those which appear to us to require comment.
In discussing the evidence of Murray, mentioned above, the judge remarked:
"If you accept his evidence that he saw Mr Gottgens on the 14th of December 1990, then you could not be satisfied that Gottgens was dead then. Whether or not you accept his evidence is entirely a matter for you to assess".
The complaint is that the direction did not emphasise where the burden of proof lies and that there should have been "a warning on the danger of rejection of the evidence". The suggestion that a special warning was required is incorrect.
With reference to the post office box to which the Will was sent, the judge described it in her summing-up as "Mrs Byers' post office box at Coorparoo". This was inaccurate or at least an over-simplification but one of no consequence; it is common ground that the appellant in July 1989 wrote a forged letter to solicitors asking that a copy of Gottgens' Will be sent to David Clowes at the nominated post office box, that the appellant used that post office box and that she obtained the solicitors' reply with a copy of the Will from that box.
The judge referred to the fact that the appellant said in evidence that she had dinner in September or October 1990 – months after, according to the Crown, Gottgens was murdered – with two friends, whom she named, and Gottgens. The judge remarked that there was no explanation as to why the two friends were not called and that the jury might think that nothing the two might say would assist the appellant. In view of the fact that acceptance of, or the presence of a doubt created by, the appellant's account of this event would have destroyed the Crown case, the judge's comment was a fair one.
A complaint was made about testing for blood, the appellant saying in effect that the judge told the jury that there was evidence of blood in the bedroom, but the fact was there was no blood. Both these criticisms are incorrect. The judge said that:
"The scientific officer did a presumptive test on some of the spots for the presence of blood, which was positive, but that is not determinative. It may also respond to metal. You will remember Mrs Byers said that she recalled metal grinding in the bedroom ...".
Her Honour made other, similar, remarks about the subject. The Crown case was that one could not determine whether or not the spots were blood, but that, curiously enough, results of DNA testing showed a reasonable match of Gottgens' blood. The judge emphasised the inconclusive results of the testing for blood. The DNA evidence also was subject to the criticism that no attempt was made to obtain Gottgens' DNA directly; an inference was drawn from his relations' DNA.
Complaint is made about a direction, said to be the "last thing the jury were to hear in summing-up", about being satisfied that Gottgens is dead. The reference to this subject was not in fact the last thing the jury were told. The appellant's complaint is, it appears, about a direction, being the last direction the judge gave on the disputed issues in the case, to the effect that the central question was whether the jury were satisfied beyond reasonable doubt that Gottgens was dead and that he was unlawfully killed with intent to kill by the appellant. This was a correct direction.
According to the appellant the judge erred in referring to lies but not identifying the alleged lies. Undoubtedly, if the Crown case was correct, many of the assertions the appellant made in her lengthy evidence to rebut the inference that she killed Gottgens were lies. Her evidence extended over nearly 300 pages of transcript. In some instances what the appellant said was fairly plainly untrue, but most of what must, if the jury's verdict is correct, be taken to be untruths are statements – such as that she saw Gottgens "frequently" after July 1990 – whose truthfulness or otherwise is a matter which the jury could not decide without reviewing the whole of the evidence, taken over many days. The Crown's proof of the offence did not depend to any considerable extent on the proposition that the appellant had told lies, but of course any lies she was found to have told must have adversely affected her credit as a witness. A verdict of guilty was open only if the jury was entirely unconvinced by any of the explanations given by the appellant of the, on the face of it, damning circumstances. It would have been a fatuous exercise to attempt to give the jury a comprehensive list of all the many statements made by the appellant, in or out of court, which must, if she killed Gottgens as the Crown alleged, have been untrue. Her Honour gave a complete direction to prevent the jury improperly using lies as proof.
In a number of ways, the appellant complains of lack of balance and unfairness in the directions. This has been mentioned above, but we should add that there were serious difficulties, in the path of acceptance of the appellant's evidence, with which her Honour chose not to deal. An example relates to the letter dated 16 July 1990 partly quoted above. The Crown case is that this was a forgery written by the appellant, a conclusion which any rational jury must have found irresistible. The letter referred to "the money I got for the house" and the use to which it would be put, and said that Gottgens was "lucky Trish paid me the money all up front in cash". The memorandum of transfer is dated 2 days later at Beenleigh, (the letter purports to come from Darwin) and the appellant's evidence on the point, which was full of equivocations, was that she had paid only part of the money, in the week beginning 16 July 1990. The date of the transfer and her evidence about payment for the house are irreconcilable with the assertion supposedly made by the deceased in the forged letter.
It is said, as we understand the submission, that a special direction should have been given to discourage the jury from finding forgery, being an offence not set out in the indictment. The line of reasoning the appellant appears to have in mind is illustrated by the decision in Gipp [1998] HCA 21; (1998) 194 CLR 106. There, in a case of alleged sexual abuse of a child, evidence was admitted of other sexual molestation than that charged. The purpose of this was to show the nature of the relationship between the appellant and the complainant, so the jury would understand the context of the charged incidents (at 133). Here, proof that forgery had been committed was given as part of the evidence that the appellant attempted to disguise and turn to her advantage the death of Gottgens in July 1990. There was no question of using the incidents of forgery – some admitted – as showing a propensity to commit murder. It is true that if the jury accepted that on a number of occasions the appellant forged documents to misappropriate money or property, that would tend to make the jury think less of her and distrust her; but the Crown was entitled to lead the evidence of forgery as part of the proof of circumstances justifying an inference of guilt.
It was also urged that a warning should have been given "on the danger of accepting unproven and uncorroborated evidence" and reference was made to Longman (1989) 168 CLR 79, where it was held that in a certain class of case a warning should be given about the danger of convicting on uncorroborated evidence. The decision has no relevance here, where the Crown case, supported by numerous witnesses, was that the circumstances pointed irresistibly to the conclusion that the appellant murdered Gottgens. The judge gave the jury a proper direction on the approach to be taken to circumstantial evidence.
Other matters
As appears to have become almost routine in appeals by unrepresented convicted persons possessing a degree of ability, it is said that in a number of respects defence counsel did not carry out his duty properly. The record discloses a valiant and capable attempt at defence, in a case where, in our opinion, it would have been almost perverse of the jury not to conclude that in early July 1990 Gottgens died at Yatala in some fashion and the appellant knew he had died; and it would we believe have been surprising if they had failed to find that the appellant murdered him. We are entitled to take into account that the counsel in question is reputed to be conscientious and very competent and that it is unlikely that he would neglect any point which could assist his client. This Court should not decline to look into allegations of misconduct or of incompetent work on the part of defence counsel if they appear to have substance, but this is not such a case.
Lastly, it should be mentioned again that the appellant argues that there should be a new trial in that two other people have been found who claim to remember having seen Gottgens alive about ten years ago after, according to the verdict, he was murdered. Neither claims to have any particular reason to remember the supposed contact with Gottgens. Derksen says he had "some limited conversation" with Gottgens and Burrell said that his conversation was limited to something like "How's it going, Carl?". It is we suppose not uncommon that in cases of this sort assertions are made, sometimes years after the trial, that the supposedly murdered person has been seen. In the absence of any reason for Derksen and Burrell to recall the brief and unmemorable contacts which are said to have occurred, it appears to us clear that the jury's verdict should not be set aside on the new evidence ground.
The appeal is dismissed.
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