R v EVANS - [2005] SASC 184

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Application)
R v EVANS
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Layton)
26 May 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - GENERALLY
Application for leave to appeal against conviction - applicant convicted by jury verdict of murder - appeal on grounds that evidence of forensic pathologist incorrectly admitted, evidence of record of interview incorrectly admitted, defence counsel incompetent, improper police conduct in fabricating evidence and intimidation of witnesses.
Discussion of principles of admissibility of expert evidence - discussion of alleged incompetence of counsel.
Held - no grounds arguable - application dismissed.
The Queen v Bonython (1984) 38 SASR 45; TKWJ v The Queen (2002) 212 CLR 124, considered.

R v EVANS
[2005] SASC 184
Court of Criminal Appeal Gray, Sulan and Layton JJ
THE COURT

This is an application for leave to appeal.
On 8 December 2003, the applicant was convicted by jury verdict of the crime of murder. An earlier application to Nyland J of this court for leave to appeal was refused. The applicant has renewed his application for leave to this court.
The applicant is unrepresented. No written submissions have been filed. However, the applicant provided written material to Nyland J and exercised his right to make oral submissions to this court in support of his application.
The application for leave to appeal lodged on 23 December 2003 set out the following grounds:
The learned trial judge erred in admitting the evidence of the forensic pathologist as to his opinion that the deceased had died not less than 6 hours prior to the taking of the photographs in P1. ...
The learned trial judge erred in failing to exercise his discretion to exclude the second record of interview. ...
The [applicant] may seek leave to add further grounds on receipt of counsel’s advice.
Nyland J, in her reasons refusing leave to appeal, set out the background of the matter and summarised the prosecution and defence cases. On the hearing before the court, the applicant accepted the accuracy of this summary.
Nyland J set out the background as follows:
The applicant was charged with the murder of Lynn Luxton at Port Augusta on 11 March 2003. The applicant pleaded not guilty and the trial proceeded before a judge and jury in the Port Augusta circuit court. The applicant was represented at trial by Mr Mead of counsel and Ms McDonald appeared for the Director of Public Prosecutions. On 8 December 2003, the jury returned a verdict of guilty of murder.
The circumstances relating to the offence:
The body of Lynn Luxton was found in the disused Tregelana Industrial Estate at Whyalla at about 4.30 pm on Tuesday 11 March 2003. She had been killed by strangulation with a ligature device consisting of rope and a piece of wood. The applicant was arrested later the same day and charged with her murder.
Ms Luxton had been living in a de facto relationship with the applicant for some years in her house at 8 Ralph Street, Whyalla. Ms Luxton had sustained a serious head injury as a teenager, and needed significant assistance with day to day activities. She had received a cash settlement with respect to her injuries and at the time of her death her estate was valued at approximately $1.3 million.
Nyland J then summarised the prosecution and defence cases:
Prosecution case:
There was no dispute at trial that Ms Luxton was killed by someone and that the person responsible had performed a conscious and voluntary act with the intention to kill her. There was no issue of lawful excuse such as self-defence. The only issue at trial was whether the applicant was the person who killed Ms Luxton.
The prosecution case was circumstantial, and relied on three main strands of evidence. First, there was evidence obtained at the place at which the body was found. DNA was extracted from the wood of the ligature device, and a plastic disposable cigarette lighter which was found in the vicinity of Ms Luxton’s body. The DNA from both items was consistent with DNA of the applicant. The lighter was found only a short distance from Ms Luxton’s body, and on the prosecution case could only have got there by being dropped by the person who was moving her body. DNA consistent with that of the applicant was extracted from the roller part of the cigarette lighter.
The prosecution also led evidence of a tyre impression as well as a shoe impression which were found at the scene. The tyre impression was consistent with having been caused by the applicant’s car, and the shoe impression was consistent with having been caused by one of the pairs of shoes of the applicant which was located at his home at 8 Ralph Street.
Secondly, the prosecution led evidence that the applicant was the last person to see Ms Luxton alive. There was evidence that she had been in an unusual condition in the weeks preceding her death. Various witnesses described her at times being in an apparently drugged or intoxicated state in the weeks leading up to her death. This included evidence from a receptionist and a dental assistant from a dental surgery, evidence from home help, as well as from a friend of the applicant. Ms Figueroa, a bar assistant at the Bayview Hotel, described Ms Luxton in that condition on the evening before her body was found.
On the prosecution case, the applicant would have been aware that Ms Luxton was regularly in an incapacitated state and that in that condition she was not in a position to defend herself. Dr Cala, the pathologist, found traces of sedative-type drugs in Ms Luxton’s system which the prosecution suggested may have had an impact on her ability to resist an attack. On the prosecution case, this was consistent with the absence of defence wounds on Ms Luxton, and in particular the absence of any scratch marks around the ligature device, which suggested that she might have been at least partly incapacitated at the time she was strangled.
The prosecution also relied on a body of evidence relating to a volatile relationship between the applicant and the deceased, which included arguments which were overheard by neighbours. More particularly, the prosecution relied on incidents which occurred on the weekend preceding the murder to show that the relationship between them was souring and that Ms Luxton was becoming increasingly difficult and thereby causing the applicant embarrassment.
...
The prosecution alleged that following the meeting with Mr Cameron, the applicant began to put in place his plan to kill Ms Luxton. Deb Williams, who was a friend of the applicant but also knew Ms Luxton received letters purportedly typed by Ms Luxton but addressed to the applicant and to Mr Cameron, which said in effect that Ms Luxton had arranged her own death because she was fed up with difficulties with the Public Trustee. She asked that things be done expeditiously to pass her funds to the applicant. The letters were typed and signed in the name of Lynn Luxton. There was a third letter addressed to “Dear Deb”, which asked Ms Williams to keep hold of the other letters until she was contacted and instructed as to what to do with them. The letter was typed, but there was a handwritten PS at the bottom to the effect “destroy this note when I let you know”. This was analysed by a handwriting expert who expressed the opinion at trial that the writing was that of the applicant. According to the prosecution, the handwriting and level of literacy of the letters established the applicant as the author of them.
There was also evidence with respect to some folders located on a laptop computer found at 8 Ralph Street. This contained two letters very similar to those letters sent to Deb Williams. The letters had been created some time before the death of Ms Luxton. Mr Blundell, a computer expert from the Police Department, gave evidence that the letters were the only two things contained within a folder which had last been accessed on 11 March 2003 at 5.04 pm. The computer’s clock was, however, found to be 15 minutes fast, making it a real time of 4.49 pm. Ms Luxton’s body was found at 4.30 pm that day. On the prosecution case this was significant as it showed that somebody had checked to make sure the letters were still there at that time.
The final aspect of the prosecution case related to evidence of items located in the applicant’s car. This included two sets of handcuffs and keys in new condition, a roll of grey 50 mm duct tape, a blue shopping bag, a green shopping bag containing a felling hatchet (also in new condition), a builder’s hammer, and a package of kitchen bags. There was also a rope twitch. All the items were positioned close together in the area underneath the driver’s seat. The prosecution described them as effectively a tool kit, prepared for the murder of Ms Luxton.
Defence case:
The applicant gave evidence at trial. He described his movements on 11 March 2003. He said that he left the house at about 11.30 am and went to buy some cigarettes. The receipt for that purchase became exhibit P51. He then collected Ms Luxton’s pay, and went to the shops in town. He saw his brother-in-law on the way. He stopped at the Westlands shopping centre, for a while. He said that he then received a telephone call on his mobile phone from Lynn Luxton’s mobile phone. She said that she had telephoned a couple called Sandra and David Yates and was going to Iron Knob to stay with them. The applicant said he went to town where he walked around for a while, before going to his parents’ home at about 1.30 pm. He left his parents’ house at about 4.30 pm and arrived at 8 Ralph Street at 4.45 pm. He went to a computer shop for a short time, and a receipt was again produced. He said he returned to 8 Ralph Street at 5.30 to 5.45 pm. He said that he did not kill Lynn Luxton.
Having heard the applicant’s oral submissions, Nyland J summarised the applicant’s further complaints as follows:
Ground 4:
Counsel for the appellant at trial failed to carry out the defence with the competency required such that a proper defence was not presented.
Particulars
(a)[Counsel] failed to oppose the admission of evidence which should have been excluded, including any evidence submitted by the prosecution after 31 July 2003 (in accordance with the order of the presiding magistrate on 25 June 2003), the evidence of Dr Cala, and the second record of interview.
(b)[Counsel] failed to question witnesses, particularly Dr Cala, sufficiently and according to instructions.
(c)[Counsel] did not allow witnesses to testify, or failed to identify, locate or call witnesses necessary to a proper presentation of the defence.
(d)Information provided by the appellant to [Counsel] was not put before the court, thereby depriving the appellant of an opportunity to disprove statements made by the prosecution.
...
Ground 5 and 6
Ground 5 can be described as a complaint that evidence was interfered with by police, in particular the evidence relating to a computer internet connection which occurred at 11.58 am on 11 March 2003, a yellow bag, a pair of shoes and some computer discs.
The next complaint which I will call Ground 6 is a suggestion that evidence was fabricated by police, in particular the photographic evidence referred to by Dr Cala, the shoe mark found at Tregelana Estate and the blue cigarette lighter found near the body of the deceased. I can deal with these two matters together.
...
Ground 7
This is a complaint by the applicant that police intimidated witnesses and obtained false testimony from witnesses during the trial. The applicant submitted that Ms Deb Williams and Mr Paul Lee, long time friends of the applicant, were intimidated by police, and that police obtained false testimony from Mr Hawkins, the resident of 3 Ralph Street. The applicant was not, however, able to provide any support for any of these allegations. There did not appear to be any evidence of interference with witnesses by police. Each of the witnesses gave evidence at the trial. No suggestion was ever made to them that police had in any way behaved inappropriately.
Nyland J considered the entire summing up of the trial Judge and observed:
I have read the summing up of the learned trial judge. He carefully went through all of the evidence and drew to the attention of the jury all of the matters raised on the defence case which might cause them to have a doubt about the matter. He explained on more than one occasion that the prosecution case was based on circumstantial evidence and that the jury could not return a verdict of guilty unless the circumstances were such as to be inconsistent with any reasonable hypothesis that the accused was innocent of the offence. At the end of the day, this was a strong prosecution case. In my opinion, there was ample evidence to support the jury’s verdict. The application for leave to appeal is therefore refused.
Before this court the applicant renewed all of his complaints. The applicant accepted Nyland J’s summary of the respective cases as well as her statement of his further complaints.
Expert Evidence
At trial the applicant challenged the admissibility of the evidence of Dr Cala, a forensic pathologist. The learned trial Judge conducted a voir dire to examine the admissibility of Dr Cala’s evidence and his opinion concerning the time of death. The opinion to be led from Dr Cala concerned the evidence of lividity. Lividity is the gravitational settling of blood after death. It was proposed to lead evidence that in the opinion of Dr Cala, having regard to an inspection of photographs of lividity, the deceased had died at least six to nine hours but possibly longer prior to the discovery of her body.
The Judge noted the basis of the objection as follows:
The rule 9 notice raises three grounds in support of the order sought. First it is said that there is no sufficiently organised branch of science directed to the ascertainment of the time of death by reference to the appearance of lividity. Secondly, it is said that Dr Cala does not have the qualifications or experience to express the opinion referred to above. Thirdly, it is said that there will be unfairness to the accused if the prosecution is permitted to lead evidence which was not filed in accordance with the rules of court.
In the course of his reasons, the Judge made the following observations:
Lividity is a change in the condition of the body after death. It is a condition that forensic pathologists have knowledge of in the same way that they have knowledge of other changes in the body after death such as decomposition and rigor mortis. Dr Cala said, and I accept, that lividity is relied on often with other matters such as decomposition, rigor mortis, internal body temperature and insect activity to determine what he called a window period for the time of death. He also said it is rarely relied upon by itself.
It is also clear that the progression of lividity has been the subject of scientific analysis with three stages being identified, namely, the onset of lividity, confluence or coalescing, and the point at which lividity becomes fixed. A table in Forensic Pathology (2^nd ed) by Dr B. Knight contains a mean time for each of these stages.
In my opinion lividity and its onset after death does form part of a sufficiently organised or recognised body of knowledge or experience. The relevant body of knowledge is forensic pathology, and in particular, the condition of the body after death, and the relationship between that condition and the time of death. Lividity is a recognised condition which often occurs after death. It is linked to the time of death, even if the only possible deductions are broad negative propositions. Various stages of lividity have been the subject of scientific analysis and study. In forming his opinion as to the window period of the time of death Dr Cala has relied partly on the recognised writings and partly on his observations during the experiment involving some 30 bodies. His approach is summarised in his evidence at transcript pages 1273 to 1274.
I reject the submission that the opinion Dr Cala will be asked to express is not part of a sufficiently organised or recognised body of knowledge or experience.
On the issue of Dr Cala’s experience, the Judge observed:
As far as the second issue is concerned, I think Dr Cala has acquired by study or experience a sufficient knowledge of the subject to render his opinion of value in resolving the issues before the court. He has, by training and experience, extensive knowledge as a forensic pathologist. He is familiar with the factors which might be relevant in determining the time of death, including lividity, and it was apparent on the voir dire that he is well acquainted with the writings on the subject. In addition to these matters, he made observations of the various stages of lividity during the experiment involving some 30 bodies.
I reject the submission that Dr Cala is not sufficiently qualified to express the relevant opinion.
On the question of prejudice, the Judge reasoned:
As far as the third issue is concerned, there is no evidence that the accused will be prejudiced in terms of the presentation of his case if Dr Cala is permitted to express the relevant opinion (R v Cox (1997-1998) 196 LSJS 3). In those circumstances I would not exercise my discretion to exclude the evidence on the basis that his statement of 11 November 2003 was delivered in breach of the rules of court.
In The Queen v Bonython[1] King CJ articulated the questions to be decided before admitting the opinion of a witness as expert testimony: [2]
The first is whether the subject matter of the opinion falls within the class of subjects upon which expert testimony is permissible. This first question may be divided into two parts: (a) whether the subject matter of the opinion is such that a person without instruction or experience in the area of knowledge or human experience would be able to form a sound judgment on the matter without the assistance of witnesses possessing special knowledge or experience in the area, and (b) whether the subject matter of the opinion forms part of a body of knowledge or experience which is sufficiently organized or recognized to be accepted as a reliable body of knowledge or experience, a special acquaintance with which by the witness would render his opinion of assistance to the court. The second question is whether the witness has acquired by study or experience sufficient knowledge of the subject to render his opinion of value in resolving the issues before the court.
[1] (1984) 38 SASR 45.
[2] (1984) 38 SASR 45 at 46-47.
Dr Cala gave evidence on the voir dire hearing. The evidence on the voir dire led the learned trial Judge to conclude that the proposed evidence did form part of a body of knowledge or experience that was sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience. There was also evidence from which the learned trial Judge could conclude that Dr Cala was an appropriate expert in this field of knowledge. There was no evidence before the Judge of any risk of prejudice to the accused through the late provision of Dr Cala’s opinion. The conclusions of the Judge involved discretionary findings that were open to him on the evidence. No error of principle has been identified.

The applicant also complained that the evidence should have been excluded because Dr Carla relied upon photographs of the deceased. The applicant contended that photographs were unreliable, because the colour did not necessarily accurately depict the true colour of the subject photographed. It follows, it was said, that Dr Carla’s opinion was unreliable, and his evidence should have been excluded.
The question of the accuracy of the colour in the photographs may, if it was established that the colour misrepresented the true picture, result in the evidence being excluded. However, there was no evidence to support the applicant’s contention. Counsel for the applicant at trial did not raise the issue.
This ground of appeal is not reasonably arguable.
Challenge to Interview Evidence
The second ground of appeal relates to an application to exclude evidence of an interview between investigating police officers and the applicant. Before Nyland J, the applicant asserted that there was no complaint about the ruling of the learned trial Judge. This complaint appeared to centre on defence counsel’s failure to cross-examine or make points about the interview. Before this Court, the applicant did not challenge the reception of the evidence of the interview. The role of defence counsel will be discussed later in these reasons. Otherwise there is no substance to this complaint and the ground of appeal is not reasonably arguable.
Defence Counsel – Competence
It was complained that defence counsel failed to discharge his duties concerning the admission of evidence and the questioning of witnesses. It was also alleged that counsel failed to identify, locate or call witnesses and failed to put information provided by the applicant before the court.
Before hearing oral submissions on the application for leave to appeal, there were a number of hearings before Nyland J at which preliminary issues were raised. On 2 February 2004, Her Honour indicated that the applicant had:
to prepare some detailed submission as to the reasons why [he] should have leave to appeal
Her Honour then adjourned the hearing for two weeks so that the applicant could set out in writing what he proposed to put before the Court. Nyland J specifically adverted to the complaints which the applicant was making in respect of his counsel, including the allegation that witnesses should have been called. Her Honour informed the applicant.
If you want these matters before a court of appeal you have to set out in a proper document the things that your lawyer did or didn’t do which you complain about…you can write it out yourself.
Subsequently written submissions were received from the applicant.
Nyland J at the hearing on 25 March 2004 sought clarity from the applicant about the witnesses which he was suggesting should have been called. In his response the applicant specifically referred to a lawyer on the topic of the removal of the Trustee from managing the funds of the deceased. When asked to name other witnesses, the applicant said:
Applicant:There were witnesses from a hotel in Adelaide, to confirm Lynn’s drinking habits. She drank Bacardi and Coke without ice. One of the witnesses gave evidence that she sold me two beers the night we were at the hotel. She did not; I did not drink while I was out with Lynn, and Lynn did not drink beer.
Her Honour: Anyone else?
Applicant:Not that I can think of at the moment, other than the original witnesses, to have the proper questions put to them.
Just considering this submission alone, there is a fundamental lack of either specificity or identified relevance of these witnesses to the overall case adduced by the prosecution against the applicant. The reference to the possible evidence of the solicitor, which was suggested to be relevant to motive, was at best only indirectly relevant and would have been of little or no assistance to the jury in determining the issues before them.
Nyland J, after considering all of the material and the oral submissions concluded:
Much of the material contained in the written submissions complains of issues which are irrelevant, such as the refusal of bail prior to trial. Insofar as I can understand the written submissions, the applicant complains that his counsel failed to oppose the late admission of statements which were provided by the prosecution to the defence after the trial had commenced. A perusal of the file suggests, however, that this aspect of the matter was dealt with appropriately. In the course of the trial objection was made by counsel with respect to some of the statements which were then the subject of appropriate rulings by the trial judge, and as I understand the matter, the trial judge also adjourned the trial on a number of occasions to permit counsel to take instructions from the applicant due to the late provision of those statements. The applicant has not pointed to any particular embarrassment or prejudice suffered by him as a result of the late provision of any of those statements.
The applicant also complains of the failure of defence counsel to call and question witnesses sufficiently and/or according to instructions. Witnesses that he submits should have been called include ... a lawyer. The applicant maintained that [the lawyer] would give evidence relating to consultations that he had with her about the possibility of removing the Public Trustee as Trustee of Ms Luxton’s estate, but on the information currently available I cannot see the relevance thereof.
The applicant also claimed that information provided by him to his counsel was not put before the court and it was said that he was therefore denied the opportunity to disprove statements made by the prosecution. It is, however, difficult to ascertain the applicant’s specific complaint about this aspect of the matter. He is clearly unhappy about the conduct of the trial by defence counsel, but his complaints do not appear to get any higher than a dissatisfaction flowing from his conviction.
In TKWJ v The Queen,[3] the High Court reviewed extensively the law concerning alleged incompetence of counsel leading to a suggested miscarriage of justice. McHugh J summarised the position in the following terms:[4]
The critical issue in an appeal like the present is not whether counsel erred in some way but whether a miscarriage of justice has occurred. However, "whether counsel has been negligent or otherwise remiss ... remains relevant as an intermediate or subsidiary issue". That is because the issue of miscarriage of justice in such cases ordinarily subsumes two issues. First, did counsel's conduct result in a material irregularity in the trial? Secondly, is there a significant possibility that the irregularity affected the outcome? Whether a material irregularity occurred must be considered in light of the wide discretion that counsel has to conduct the trial as he or she thinks best and the fact that ordinarily the client is bound by the decisions of counsel. Accordingly, "it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence". The appellant must show that the failing or error of counsel was a material irregularity and that there is a significant possibility that it affected the outcome of the trial.
In what circumstances then, will the appellant be able to discharge the heavy burden of establishing that counsel's conduct constituted a material irregularity amounting to a miscarriage of justice? Where the appellant can show that counsel has conducted the trial with flagrant incompetence, it is likely that the appellant will have established a material irregularity in the conduct of the trial that will provide the stepping stone to a finding of a miscarriage of justice.
... [A]n accused will find it difficult to establish a miscarriage of justice when the alleged errors of counsel concerned forensic choices upon which competent counsel could have differing views as to their suitability.
[3] (2002) 212 CLR 124.
[4] (2002) 212 CLR 124 at [79]-[81].
There is no material advanced by the applicant to support his complaints. For example, no particularity has been provided at all as to why it is said that the cross-examination of Dr Cala was inadequate. The evidence that the applicant claims should have been the subject of objection is not identified. Apart from the evidence of Dr Cala and the challenged interview discussed earlier in these reasons, the allegations that counsel failed to identify, locate or call witnesses necessary to the presentation of the defence, was devoid of any real particularity.
Nothing put before this court suggests that this ground of appeal has any prospect of success. The heavy burden carried by the applicant could not be discharged on the material before the court.
Police Conduct
Complaints against the police suggest interference with evidence at the scene and elsewhere. However, a review of the applicant’s submissions discloses that his contentions rest on conjecture and surmise. For example, with respect to the allegation of interference with the computer, the applicant when before Nyland J, said:
Applicant:On the day following my arrest, the police were there and an Internet connection occurred. Ms McDonald put it to the jury that I had pre-programmed the computer to make that Internet connection, and I know I did not. Even when I left the premises, it was on videotape at the premises, there was photographs taken at the premises showing the computer switched off, and even the computer technician stated that the computer had to be switched on. So, knowing that I did not pre-program the computer to make that connection, the police, being present, are the only ones who could have possibly turned on the computer and made the Internet connection, and the prosecution used that information to say I made an Internet connection occur on the day of Lynn’s death, because it happened after I left the house and Lynn was still alive at that time.
In regard to the suggestion of fabrication of a shoe mark, the applicant said:
Applicant:Even that, it is my belief that the police fabricated that shoe mark, because they found the shoes at the house, the shoe marks had been found later. I don’t know how I’m going to be believed, but when I was questioned at the house, there was two Major Crime detectives present with Detective MacIntyre. When we went to the police station, only one of them was present. The other one, I didn’t see him for two or three hours. He could have gone back to the house, taken the shoe and made the shoe mark. I don’t know.
As earlier observed, the complaints against the police also suggest intimidation of witnesses.
On the material before this court, there is no substance to the allegations of police interference or intimidation. There is no evidence to support the allegations. The police officers were called as witnesses at the trial. They were not questioned about the suggested incidents of interference or intimidation. There is no substance to this proposed ground of appeal. This ground is not reasonably arguable.
Conclusion
This application is dismissed.