R v Ellis
[2008] VSC 406
•8 October 2008
IN THE SUPREME COURT OF VICTORIA
AT MELBOURNE
CRIMINAL DIVISION
No. 1566 of 2007
| THE QUEEN | |
| v | |
| DARREN JOHN ELLIS | Accused |
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JUDGE: | COGHLAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2-3, 5-6, 10-11, 13, 16-20, 23–25 June 2008, 16 July 2008 (Plea) | |
DATE OF RULING: | 8 October 2008 | |
CASE MAY BE CITED AS: | R v Ellis | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 406 | |
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Criminal law – Murder trial – Circumstantial case – No case submission.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P. D’Arcy | Office of Public Prosecutions |
| For the Accused | Mr P. Chadwick | Mike Wardell Barrister and Solicitor |
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HIS HONOUR:
At the end of the Crown case, Mr Chadwick, on behalf of the accused, made a submission that there was no case to answer and that, accordingly, I should direct the jury to return a verdict of not guilty.
The test which is to be applied to a no case submission was definitively set down in Doney v R:[1]
“It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.”
[1](1990) 171 CLR 207 at 214 per Deane, Dawson, Toohey, Gaudron and McHugh JJ.
Much criticism has been made of that test on the basis that it set a standard which is too low and does not provide sufficient basis for reasoned and appropriate judicial intervention. There is much in that criticism. I do not, however, think that it would make any difference to the conclusion which I have reached in this case.
The case itself is relatively simple. The body of the deceased was found in St Georges Lake, Creswick on 2 November 2006. It had been seen on the previous day. There is a possibility of an earlier sighting in October 2006, but nothing turns on that.
The deceased last accessed her bank account on 13 September 2006 and her last social security payment was received on that day. That is indicative of the proposition that she did not submit any forms which would “trigger” payment after that date.
The deceased was last seen alive by a person other than the accused on Saturday 15 September 2006. She was seen in the accused’s car by Tanya Ellis when the accused and the deceased went to pick up his children from their home in Wendouree.
The body, when found, was naked, although no attempt appears to have been made to disguise the body. The body was contained in a frame constructed of a single piece of chicken wire which was held together with cable ties.
Within the cage was a metal foundry weight and some volcanic rocks.
It was established that the deceased had been shot in the head with a .22 calibre bullet. The state of the bullet was such that no ballistic comparison could be carried out to determine whether or not it had been fired by a particular firearm. The deceased had also been stabbed twice in the chest.
The order of the injuries could not be determined. It was also impossible to determine the time of death or the length of time the body might have been in the lake, except to say that it was probably not recent.
The lake from which the body was recovered was only a short distance away from where the deceased and the accused had lived together.
There was no evidence that the deceased had been in contact with others or seen anywhere else, in particular, away from Creswick, after her disappearance. The possible exception is that Mr and Mrs Seager, close friends of the deceased, had received a text message purporting to come from her. It was seen by Mr Seager on 18 October 2006 and dated 2 October 2006.
The text message carried the suggestion that the deceased had gone into rehabilitation. In the circumstances that I will set out below, it is open for the jury to conclude that the deceased had not gone into rehabilitation and had died about the time she disappeared. It is also open for the jury to conclude that the text message was false, in the sense that it was not sent by the deceased.
It is important that whoever sent the text message knew of the closeness of the relationship between the Seagers and the deceased. The accused was such a person.
The accused also knew that the Seagers, Mrs Seager in particular, was persistent in her efforts to find the deceased.
Although the accused claimed to have received a similar text message, he did not show it to them and when Mr Seager asked what he should do with the message, the accused told him to delete it.
When the evidence is looked at as a whole, it would be open for a jury to say that the accused deliberately misled the Seagers about the question of receiving a text message from the deceased.
Although Ms Bernaldo had had assistance in the past from Lisa Lodge and Tabor House, she did not return to either of these places for assistance. She was quite close to Louise Jeffrey, who worked at Lisa Lodge, telephoning her from time to time.
There was no evidence to show that Ms Bernaldo had gone for treatment anywhere and her failure to access her social security benefit would also suggest that she had not. That is, it would be open for a jury to conclude that she did not leave Creswick alive.
The jury could readily conclude that the body was concealed in such a way that it was not intended that it ever be found.
The accused had direct access to two different types of cable ties used to tie up the chicken wire around the body.
Volcanic rocks of the type found with the body are abundant in the vicinity and there are a number of such rocks loose in the backyard of the house next door.
At some stage there had been a foundry weight in the yard at 100 Clunes Road which was missing when the police searched the premises after the body had been found. However, the weight found with the body was not identified as the weight and the evidence is not clear as to when it was last seen.
The accused had access to knives and rifles.
The accused had access to at least two different kinds of chicken wire and had used chicken wire to make an enclosure for a puppy. The chicken wire with which the body was found was the same type of wire which had been dumped behind 100 Clunes Road about nine months earlier.
When Ms Bernaldo left 100 Clunes Road, she left behind personal items including her baby book and jewellery, and she had always taken those items with her. Whether that is actually true or not, notwithstanding all her changes of address in recent times, those items did get to 100 Clunes Road.
On the evidence it did not appear that the deceased knew anyone else in Creswick, particularly anybody who had animosity towards her.
I am satisfied that there is sufficient evidence for this case to be decided by the jury.
I had indicated to the parties that that was my ruling on 20 June 2008 and these are my reasons for that ruling.
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