R v Faggotter

[1996] QCA 39

IN THE COURT OF APPEAL	[1996] QCA 039
SUPREME COURT OF QUEENSLAND

C.A. No. 454 of 1995.

Brisbane

[R v. Faggotter]

T H E Q U E E N

v.

JAMES VALENTINE FAGGOTTER

Appellant

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Macrossan C.J.
Pincus J.A.

Davies J.A.

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Judgment delivered 05/03/1996

Judgment of the Court

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APPEAL DISMISSED

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CATCHWORDS:	EVIDENCE - evidence falling short of proof that confession was true - pathological liar - video re-enactment - opportunity.
CONFESSIONS - truth of confessions - video confessions - confirmation from other sources - support of independent evidence.
MISDIRECTION - question of intent - murder - Thabo Meli [1954] 1 W.L.R. 228 - mens rea - Royall (1990) 172 C.L.R. 378 - Church [1966] 1 Q.B. 59.
UNSAFE AND UNSATISFACTORY - misdirections - psychiatric evidence - absence of forensic evidence of identity.
Counsel:	Mr K Copley Q.C. for the appellant. Mr J Costanzo for the respondent.
Solicitors:	Legal Aid Office for the appellant. Queensland Director of Public Prosecutions for the respondent.
Hearing date:	06/02/1996.
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 05/03/1996

This is an appeal against a conviction for the murder of a Ms Daly. It is accepted that the appellant confessed in detail to having committed the murder and later went with the police to the place where, he said, it occurred. There he gave a detailed explanation of, and in part demonstrated, his actions and those of his victim. Although at times the appellant said that he confessed because he had been bashed by the police, this was not pursued at the trial, nor on appeal; more generally it is not contended that the confessions to the police, which were recorded on video, were obtained by any impropriety. The appellant confessed to having struck Ms Daly on the head with a substantial stick and then rolled her body over a cliff.

The submission on behalf of the appellant, who gave no evidence at his trial, is that the Crown’s evidence falls short of proof that the appellant’s confessions of murder are true. He is said to be what is in common speech described as a "pathological liar" and the argument is that the confession to the police might have been simply another of the appellant’s lies. Counsel for the appellant, Mr Copley Q.C., also complains of misdirection.

It was pointed out at the hearing that the case is not one in which this Court is necessarily in a much worse position than was the jury to determine the veracity of the story which the appellant ultimately told the police, namely, that it was he who killed Ms Daly. It was said in effect that perhaps the appellant’s case might be assisted if the Court were to watch all or some of the recording of the appellant’s conversations with the police. When the matter came on for hearing, neither counsel had had an opportunity to do this and after discussion with the Court it was arranged that counsel could come to the Court, watch so much of the videos as they desired and then make further submissions, in writing. The further submission of the appellant contains no suggestion that observation of the videos is likely to assist the Court in any substantial way; it is there submitted that the appellant’s demeanour during the police interviews is of no or limited assistance and that there are "limitations with the videos". Although not encouraged by the appellant’s counsel to do so, we have watched what appears to be the most important recording which is Exhibit 28, the recording of the discussion and partial re-enactment of the events in question at the site of the killing which we have mentioned above. The defence theory was that the appellant was able, when he discussed the matter with the police at the site, to give details relevant to the killing, not because he had done it, but because he had earlier made careful observations of the scene, which equipped him to give a false account to the police of what he asserted he had done, in bringing about Ms Daly’s death. The defence theory was thought to be bolstered by a suggestion that in performing what was, rather inaccurately, called the "re-enactment" at the scene of the killing, the appellant was obtaining some sort of satisfaction, in being the centre of attention.

Observation of the video we have mentioned gives no support to that. The impression created is that the appellant, although co-operative with the police, was not enjoying the task of giving a detailed explanation of his actions; in particular, there is no indication in his manner that he was "showing off". His appearance could be regarded as indicating that he was rather hesitantly, giving an account of actions of which he was not proud.

But apart from the submission, which does not seem to be pursued, that perhaps the appellant’s manner in dealing with the police tends to give some weight to what we have called the defence theory, it is argued for the appellant that the Crown evidence, apart from the confession, was too weak to justify a conviction.

There was a considerable amount of evidence dealing with the movements of Ms Daly and those of the appellant on the night of 2/3 July 1993, during which, it appears clear, Ms Daly was killed. It is unnecessary to explain in detail the content of that evidence. It was open to the jury to be satisfied that it would have been possible for the appellant to have picked up Ms Daly at a bridge called the Kidd Bridge, as he told the police he had done. It was also open to the jury to accept that the movements of the appellant on the night in question, so far as they appeared from the evidence, left enough time for him to have driven from the Kidd Bridge to the scene of the killing, performed the killing and returned to where he was next seen; the existence of opportunity to kill Ms Daly was not in the end in issue, although as will be explained below, the appellant’s counsel complained of the way in which the judge directed on that point. It was also established that on the night in question the appellant had possession of a borrowed Pajero car, a 4-wheel drive vehicle apparently suitable to be taken on rough tracks, like some of the tracks in the vicinity of the place where Ms Daly was killed.

On the morning of 3 July, i.e. the morning after she died, Ms Daly’s dead body was "found" by the appellant and one Billy Jack Duke. The Crown case was that the appellant went to the place where the corpse was to be found, knowing that it was there, and that he took Duke with him because he wished the finding of the body to be observed. The Crown sought to obtain some support for that notion from the evidence of witnesses to whom the appellant spoke on 3 July; one of those was Duke. That witness, whose mother had formerly been the girlfriend of the appellant, was on that date picked up from Gympie railway station, at his mother’s request, by the appellant; he was then asked by the appellant whether he wanted to look at some caves and that resulted in a journey which is further discussed below. Ms Duke, the mother of the witness just mentioned, who had asked the appellant to pick her children up from the railway station, last saw him at her home on the morning of 3 July when he asked her husband Paul to go bushwalking with him; he also, it appears, asked that Ms Duke’s children go with him; this was described as a "strange request".

The evidence just mentioned was, as we understood the argument, relied on as supporting the Crown case that the appellant, having killed Ms Daly, wished to have her body located, but in circumstances in which it appeared that he and another person or persons had just happened to come upon it.

Billy Jack Duke who, as has been mentioned, was picked up by the appellant at a railway station, travelled in the appellant’s car with him to a spot where the two emerged from the car and walked, according to Duke’s estimate, for about five minutes, until Duke found Ms Daly’s body. At that stage the appellant who had been walking ahead of Duke had stopped and then Duke had walked past him and found Ms Daly. He said in effect that the two did not go closer than about 10 or 15 metres from the body and that, if accepted by the jury, was relevant to the extent of the appellant’s opportunities to observe details of the body’s condition. The two then went "back up the top" where Duke saw a drag mark going from a tree towards the edge of a cliff and both saw blood at the base of a tree; the appellant, according to Duke, noticed it first. Shortly after that the police were contacted. One of the police officers who gave evidence, a Mr Gleeson, took a statement from the appellant on the evening of 3 July which contained no admission and was, to put it simply, exculpatory; the appellant declined to sign the statement. Early on 4 July, however, the appellant told the police he was "sick of all this bullshit" and that he had killed Ms Daly. Video recordings of the appellant confessing to the offence were taken at the police station and, as has been mentioned above, the appellant went with police to the scene of the killing and there explained, with some demonstrations, what had happened.

The confessions included considerable detail, not all of which need be summarized here. But it is important that the story told was a detailed one and that the story given was, as the respondent contended, both internally consistent and consistent with the objective facts. The main points of the story the appellant told the police were that he drove Ms Daly to the place where she was killed, that he lit a small fire to warm her, that she spoke insultingly to him, that he "wanted to kill someone", that Ms Daly picked up a stick and told him to keep away, that he urged her to go and sit by the fire, but she remained where she was holding a stick, that he then picked up a stick and hit her, that she fell down, that he sat down and cried, that he then panicked, dragged her to a cliff, checked her pulse and rolled her over the cliff.

The appellant gave no evidence, but it was proved that he had made statements to other persons, subsequent to his confessions to the police, inconsistent with those confessions. On 5 July 1993, the day following his confessions to the police, he was asked by Ms Duke, his former girlfriend, whether he had committed the offence and denied it. He said that he saw the murder but did not commit it; according to the version he gave Ms Duke the murder was committed in his presence by another, unidentified, person "twice as big as me". When asked why he had confessed, he said he did so because he had been "bashed" by the police, but this suggestion was not pressed at the trial, nor before us. Then there was evidence from a Ms Hill who was at the time working in the Legal Aid Office and was told by the appellant at some unspecified date in July 1993, a story similar in effect (but containing more detail) to that told to Ms Duke. The appellant also told Ms Duke, in discussing his confessions to the police, that when the police asked where the stick was which was used in striking Ms Daly he could not see one but, in effect, that he responded to a suggestion by the police as to the identity of that stick; that part of the story is untrue, as may be seen from the depiction of this incident in the video recording.

Then there was evidence from doctors and a psychologist to whom the appellant spoke at various times after the killing. He told a Dr Fama initially that he felt he did not do it, but later became adamant that he had not. He told Dr Mulholland that he was there, but did not do it. A psychologist Mr Perros gave evidence that he confessed to the police to "save getting a belting"; Perros was unsure whether the appellant’s version to him included that he had seen the killing done. Dr Varghese said the appellant told him that he had not picked the girl up, knew nothing of her and had not been to the murder site. The evidence of these witnesses is further discussed below.

Directions

Mr Copley Q.C. explained that the principal complaint about the judge’s directions had to do with his Honour’s treatment of the question of intent. The appellant told the police that he picked up a stick and hit Ms Daly with it, then felt for a pulse and "knew she was dead". In fact, on the medical evidence, she was then still alive. He said that he dragged Ms Daly to the cliff’s edge, by the ankles and "rolled her over". The medical evidence was to the effect that it was the fall down the cliff which killed Ms Daly. The appellant contended that it was necessary for the trial judge to make it clear to the jury that, to justify a conviction of murder, it was necessary that they be satisfied to the requisite standard that at the time when the appellant did the act, rolling the victim over the edge of the cliff, which brought about Ms Daly’s death, he had the intention of killing her or doing her grievous bodily harm. It was not sufficient, Mr Copley argued, that the appellant had that intention when he struck the woman with a stick, apparently rendering her unconscious.

We were referred to the decision of the Privy Council in Thabo Meli [1954] 1 W.L.R. 228. There the appellants had been convicted of murder in somewhat similar circumstances. The evidence was that their victim was struck on the head and the case was decided on the assumption that the appellants then believed the person struck was dead. The appellants then rolled the body over a cliff and tried to make the scene look like an accident. The medical evidence was to the effect that the final cause of death was "exposure", when the victim was left at the foot of the cliff.

The argument advanced in Thabo Meli was that, while the blow on the head was accompanied by mens rea, it was not the cause of death and that the appellants’ act in rolling the body over the cliff, thinking it to be a corpse, caused the death but was not accompanied by mens rea. The Court held that the transaction could not be divided up in that way and that it was -

" . . . much too refined a ground of judgment to say that, because they were under a misapprehension at one stage and thought that their guilty purpose had been achieved before it in fact was achieved, therefore they are to escape the penalties of the law.".

The Privy Council case was discussed in the High Court in Royall (1990) 172 C.L.R. 378, as was the rather similar case of Church [1966] 1 Q.B. 59. Mason CJ remarked:

" The reasoning in these cases is inconsistent with the applicant’s submission that in murder it is essential that there should be an intent to bring about death or injury in the manner in which death actually occurs. It is enough that the accused has the requisite intent at the outset of his or her execution of a series of acts designed to cause, and causative of, death. Those cases illustrate the proposition that, where the death is caused solely by the acts of the accused, the accused’s mistake as to the precise manner and time of the occurrence of death is not a factor upon which the accused can rely...". (392, 393)

Mr Costanzo, for the respondent, referred to these observations, but did not as we understood his argument concede that it was necessary for his purposes that we adopt them; it was in effect contended that the judge’s directions on the subject were, on any view of the law, adequate.

The trial judge told the jury about the law with respect to intent and what intent must be shown and that they must be satisfied -

" . . . beyond reasonable doubt that this accused had an intention to kill the girl Lisa Daly when he caused her to fall over the cliff. . . . ‘Intends’ in this context simply means something that you have in mind. It is what is involved in directing the mind at the time".

His Honour went on to emphasise that an objective test should not be applied. He said:

"You don’t say, ‘A reasonable man pushing someone over the cliff would ordinarily have an intention to kill or cause grievous bodily harm, therefore this man must have.’ You can’t look at the reasonable man test. You have got to keep concentrating on this accused at the time. "

The judge was asked to give further directions with respect to this point. Counsel for the appellant below said:

" In relation to the direction Your Honour gave in respect of murder or manslaughter, this, of course, depends on their view you said of the accused’s intent at the time the deceased was pushed or rolled from the cliff. However, the evidence in the confession or the confessional material is that at the time he did that he believed she was dead, so I would ask Your Honour to remind the jury of that. "

There was further discussion and the judge brought the jury back and gave them further directions on the topic which, in whole, were as follows.

"You will recollect I said to you that to constitute murder, the unlawful killing must be accompanied by an intent either to cause death or grievous bodily harm. Any other unlawful killing would constitute manslaughter. I said to you that what you had to do was direct your mind to the accused’s state of mind at the top of the cliff. Now, I said that because the medical evidence is that the cause of death in this case, or the significant injuries sustained on the body, were from the girl falling over the cliff. The accused, if you accept the confession, said that at the top of the cliff he felt for pulse, could not feel pulse, and believed she was dead. That is a question of fact for you. You may either accept that, that is, that the accused at the top of the cliff believed that the girl was dead before he pushed her over; or you may reject it. That is, you may say, ‘No, that’s part of the fantasy aspect’ or whatever and in that situation you would then deal with it on the basis that he pushed her over at a time when he knew she was still alive. It seems to me that what you have got to do in determining whether he had, prior to pushing the body over, an intent to cause death or grievous bodily harm, you have to look at his alleged belief in the context of what happened. He had earlier struck her on the head with the stick, dragged the body to that point, then, he says, believing she was dead, tossed the body over.

Now, it seems to me that you do not just simply say, ‘Well, because he believed that she was dead he couldn’t have had an intent to cause death or grievous bodily harm by pushing her over the cliff.’ You have got to look at it in the whole context of what you find happened at the top of the cliff. If you come to the conclusion that he had an intent to cause death or grievous bodily harm, and that that intent was still directing his conduct at the time he pushed the girl’s body over the cliff, well, then, you would be entitled to return a verdict of guilty of murder as distinct from manslaughter. "

The jury was then sent out again; counsel were asked if there was anything arising out of what the judge had said and said there was not.

Reading the judge’s initial direction with his Honour’s further direction it appears to us that they must have conveyed to the jury that the question, in determining whether or not there should be a conviction of murder, was whether they were satisfied that when the body was pushed over the appellant had the necessary intent, to cause death or grievous bodily harm. It is true that in the redirection his Honour suggested to the jury that they should consider the final act in the context of the earlier one, the blow on the head.

But that was not, as it seems to us, an allusion to the doctrine accepted in Thabo Meli (above); we do not think that it is necessary to determine, in this case, the question whether that doctrine should be accepted as applicable to cases decided under the Queensland Criminal Code.

It is true that, as was mentioned during the course of argument, the primary judge did not deal elaborately with the factual considerations which the jury should take into account when determining whether it was satisfied that there was the requisite intent at the time the body was pushed over the cliff, but there was not perhaps a great deal which could usefully be said on that subject. It is also true that the redirection was in one respect rather suitable to the prosecution, which presumably preferred the jury to consider the question of intention at the time of pushing the body over the cliff in the context of earlier events, in particular the blow on the head; but the redirection is not, nor could it reasonably be, complained of on that account.

It therefore follows that the principal attack on the judge’s directions must be rejected. It is necessary, however, to deal also with alleged misdirections raised in ground 5, added by leave at the hearing, and also with some criticisms of the directions which were advanced in the course of discussing ground 2, that the jury’s verdict was unsafe and unsatisfactory.

Ground 5 contains two complaints. First, it is said that the judge should not have told the jury to consider evidence of opportunity and of dealing by the appellant with Ms Daly as confirmation of the appellant’s confession. What the judge said in substance on this subject was that the appellant and the deceased were in the vicinity of Kidd Bridge at about the same time of night. The Crown had argued that there was about an hour and 20 minutes of the appellant’s movements unaccounted for and (in substance) that there would have been time, therefore, for the appellant to have killed Ms Daly. The judge carefully directed the jury’s attention to the evidence relevant to these points; no complaint is made about the accuracy of his Honour’s analysis of the factual question whether there was any opportunity for the appellant to have committed the offence. This was relevant in determining whether or not it was proved that he killed her. If the jury were not convinced by the evidence on that subject, the Crown case must have been weakened.

The real point is, we think, whether the judge’s mode of explanation of the relevance of the subject of opportunity overstated its importance. His Honour introduced a discussion of a number of topics, including the question of opportunity, by explaining that they were "points that it seems to me you may consider . . . when you are directing your mind to this question whether or not there are indicia in the evidence which tend to suggest that the confession was truthful and accurate". His Honour did not tell the jury, as the wording of ground 5 would suggest, that they might "consider evidence of opportunity . . . as being confirmation that the confession by the appellant . . . was truthful and accurate". The question of opportunity was one of the matters the jury were invited to think about when determining the veracity of the confession; it does not appear to us that the language we have quoted would have made the jury attach undue importance to that issue.

Next, it is argued that the judge should not have said :-

" . . . what you have to do, as I say, is find some external indication that
the confession was truthful and accurate ".

If the jury were, by this direction, likely to have come away with the impression that any external indication would necessarily justify a conviction, then there would in our view have to be a new trial, for the mere finding of some such indication would not necessarily suffice. Considering the direction in isolation, it could have been misleading.

The judge told the jury more than once that they had to be satisfied beyond reasonable doubt of the truthfulness and accuracy of the confession. But did his Honour give the jury to understand that they could or should be so satisfied if they could find any external indication supporting the truthfulness and accuracy of the confession? In our opinion the proper answer to that is no. Reading the summing-up as a whole we think the jury would have been left with the idea that they were to look for possible confirmation of the confession in quite a number of matters of varying strength which the judge discussed and perhaps in others. His Honour said, for example:

" Then there is his account of the problems that he had with the fence and the little bar in getting the body over. Again, they are the sorts of matters that you must direct your attention. I don’t want it thought that I have given you an exhaustive list of the matters that you may have regard to. If you consider that there are others, well, then you are perfectly entitled to consider them and act on them.

As I said, it is a matter for you as to whether or not out of those sorts of considerations you can find such confirmation of the truthfulness and accuracy of the confession as would entitle you to draw the conclusion beyond reasonable doubt that he was guilty of the offence charged. You do all of that against the background of all of the matters that the defence has put to you. "

And again, after referring to the defence contention that "when you analysed all of those matters you could not say that this confession was supported by hard independent evidence", his Honour directed the jury, with respect to the tapes recording the appellant’s confessions:

" Consider them in detail in the light of the medical evidence and look for possible points and matters established by other evidence which confirm the truthfulness and accuracy of statements made.

If, having carried out that exercise, you are satisfied of the truthfulness and accuracy of the confession, then, as I have said, if you are satisfied of that beyond reasonable doubt, the verdict would be guilty. If you are not so satisfied, it would be not guilty. "

Although, read without regard to the rest of the summing-up, the judge’s earlier reference to "some external indication" must have been thought likely to make the jury think that any single indication, whether weak or strong, would be enough to warrant a conviction, it does not appear to us that a rational jury could have so understood his Honour. It is not the law that a confession may never be acted on unless there is evidence of guilt apart from the confession; but the judge chose, having regard to the psychiatric evidence, to tell the jury in substance that the confession could not reasonably be acted upon unless supported by other evidence. His Honour made it sufficiently clear that the weight to be given to any evidence (apart from the confession) which either side suggested made the confession more credible or less credible was a matter for them and they could not convict unless satisfied on the whole of the evidence that the confession was true.

In our opinion the criticisms of the summing-up made in ground 5, added by leave at the hearing, do not justify a conclusion that the jury was misdirected.

It remains to refer to some points, made in the course of discussing the safety of the verdict, which expressed or implied criticisms of the judge’s directions. Counsel drew attention to a suggestion, made rather indirectly in the summing-up, that the Crown might derive some help from evidence concerning the likelihood of sexual interference with Ms Daly. The point intended to be made was that the post mortem and forensic tests suggested that Ms Daly had not been touched sexually; that the appearance of the corpse as it was seen by the appellant when he travelled to the spot with Billy Duke indicated an injury in the region of the crotch; and that it would be odd that the appellant should, if he knew nothing of the circumstances of the death, be able to assure the police there had been no sexual contact between Ms Daly and himself.

According to the medical evidence, the injury in the region of the crotch was caused by the fall to the ground from the top of the cliff; there was no evidence of penetration of the anus or vagina found on post mortem examination. The vagina and anus were swabbed and examination of the material thus obtained did not reveal the presence of semen; that was a point to which Mr Copley Q.C. very properly drew our attention. There could have been intercourse without leaving semen, for example because a condom was used, and the judge did not when discussing the matter point that out to the jury. Perhaps his Honour regarded that as too obvious to require mention, particularly as there was evidence that earlier in the same night Ms Daly had had consensual sexual intercourse with a man who used a condom. But it is not the judge’s failure to draw the jury’s attention to the fact that the forensic test negated the presence of semen, but did not negate sexual activity unproductive of semen, of which complaint is made. The submission is that the point was totally equivocal and that the judge should not have put it to the jury that it was open to take it into account against the appellant.

In our opinion the appellant’s discussion of this topic with the police was capable of meaning that he was confident that scientific tests would support his story that he engaged in no sexual activity with Ms Daly. That turned out to be so, at least in the limited sense that forensic examination produced no positive evidence of such activity. The point for the jury to consider, rather succinctly explained by the judge, was that it might seem odd, if the appellant had no knowledge of the circumstances of Ms Daly’s death, that he seemed confident that forensic examination would show no evidence of sexual interference with her, particularly when she appeared to have been injured in the region of the crotch. Whether this assisted the Crown case, and if so to what extent, was a matter for the jury and it was rightly left to them.

Then there was a complaint about the judge having made comment upon the evidence of Billy Duke, that when he went to the scene with the appellant it was the appellant who spotted blood first. The judge raised, among other questions, whether it was "spotted by the accused first because he had some reason to believe it was there". Elsewhere in the summing-up, the judge made a comment of a similar character with respect to the fact that when the appellant went into quite an extensive area of forest with Billy Duke, he "happened to go directly to the spot where the body was". These were, contrary to the appellant’s submission, legitimate matters for the jury’s consideration. It is true that the appellant told the police he did not see any blood at the relevant time, but the jury were not obliged to accept that.

Some other discussion of remarks made by the judge is to be found in this part of the appellant’s submission, but there is we think nothing else which needs to be mentioned here.

Particularly in view of the fact that the appellant did not give evidence denying the truth of the confessions he made to the police, evidence with respect to subsequent statements by the appellant inconsistent with those confessions need not have troubled the jury much were it not for the psychiatric evidence throwing doubt on the appellant’s reliability.

Psychiatric Evidence

Dr Fama, who has already been mentioned, first saw the appellant in 1985 when the appellant was under his care at the security patients’ hospital. He next saw him after the killing of Ms Daly. In 1985, to summarise briefly, Dr Fama was told by the appellant that he had swallowed razor blades and done other things to harm himself, but there was no other evidence of that. The appellant told Dr Fama stories of violence he had allegedly committed or planned, including a claim to have shot and killed a man when the appellant was 15. Dr Fama formed the view that the appellant had a highly disturbed personality, but no formal mental illness. He said the final diagnosis made was of pseudologia fantastica, being a condition of persistently telling untrue stories. Some of the appellant’s stories were of wildly improbable sexual activity with animals. The appellant discussed with Dr Fama ideas he had of killing prominent people, apparently including Sir Joh Bjelke-Petersen, to attain notoriety. Dr Fama had also seen a note that the appellant had confessed to the Whiskey-Au-Go-Go murders. The doctor thought that the appellant was quite rational although preoccupied with these extreme, bizarre and often grotesque fantasies.

After being charged with the offence in question, the appellant told Dr Fama that he had committed certain other killings, but it does not appear that these stories should carry as much weight, as to the likelihood of the confessions relating to Ms Daly being true, as the untrue statements of wrongdoing made before the confessions of having killed Ms Daly.

Without objection, the content of a letter written on 4 March 1994 to "Robert and Julie" in which the appellant said in effect that he had killed Ms Daly was put to Dr Fama, as was a letter of the same date written by the appellant to a psychologist.; Dr Fama was cross-examined on them. In the latter, the appellant told the psychologist that he had claimed to kill a lot of people, but that he was sure that "she" - apparently meaning Ms Daly - was the only person he had ever killed. The letter went on in part -

" Killing that girl was the start of my problems because on driving home I felt very powerful. I also felt a big release of peace within me. I realise you don’t have to be a big tough guy to kill someone . . . at the time I killed her I didn’t enjoy doing it. But as I drove home I enjoyed killing her. No, that’s not it. It’s when I think about it, I enjoy it, and I want to kill someone again . . . I will kill again to get that powerful feeling and that peace within me. "

Dr Fama’s opinion appeared to be that the statements just mentioned were of no more value than any other. However, the jury might rationally have taken the view that, although prior to 3 July 1993 the appellant had often had fantasies of violence, he had, as the letter to the psychologist disclosed, eventually really killed someone in circumstances which (as related by him) were by no means fantastic, but accorded closely with the objective facts.

A psychologist, Mr Perros had contact with him at times similar to those experienced by Dr Fama - i.e. in 1985 and then not until after Ms Daly’s death. Mr Perros saw the appellant at the security patients’ hospital in 1985 and initially formed an opinion of him which was rather more sceptical than that of Dr Fama. One of the tests Mr Perros administered suggested to him that the appellant was attempting to exaggerate his symptoms, but Mr Perros ultimately concluded that the appellant had a severe personality disorder. The stories the appellant told Mr Perros included fantasies of violence. When Mr Perros next saw the appellant, in mid-1994, he told Mr Perros that he had confessed to the killing of Ms Daly to "save getting a belting" from the police. He also told him, as we understand the evidence, that the murder was committed by someone else.

Then there were three doctors who saw the appellant only after Ms Daly was killed, and their evidence might be more briefly summarised. Dr P J Mulholland, a psychiatrist, was told by the appellant in effect that his confession was false, that he was "there but . . . didn’t do it". But he also indicated to Dr Mulholland "that he was willing to concede that he has no recall or no memory of killing the girl and that he does have a recall and memory of the other fellow killing the girl and, at the same time, he appeared to be conceding that he himself may have killed the girl . . . I thought he was really playing games with me". Dr Mulholland described the appellant as appearing to be "rather amused by the whole business". He thought the appellant to be suffering from pseudologia fantastica, but added that the appellant knew the difference between falsehood and truth. Dr D A Grant, another psychiatrist, first saw the appellant in 1995 and he was told various stories, that the appellant had seen other people do the murder, that he had himself done it "in an altered personality . . . or that he believed at one stage he was killing his sister" - and, another version, that he was not even at the scene at the time. Dr Grant thought he had an antisocial personality disorder and also pseudologia fantastica. Dr Vargese, also a psychiatrist, saw the appellant first in 1995 and was told that the appellant had confessed to the murder of Ms Daly because he wanted to do something that would make him famous. Dr Vargese made a diagnosis of the same kind as the other doctors.

Safety of Verdict

The appellant’s argument that the verdict was not one which can be upheld, on the facts, derives its strength principally from the psychiatric evidence just discussed and from the absence of any forensic evidence tending to identify the appellant as the killer. As to the latter, it was pointed out that, for example, one might have expected that if Ms Daly had on the night of her death been in the vehicle which the appellant was then using, the police would have been able to find some trace of her presence. That contention is weakened a little by the circumstance that the appellant’s principal version of the night’s events, apart from saying that he himself killed Ms Daly, was that he was present at the killing, but did not perform it. It is also argued that if it was the appellant who dragged Ms Daly’s body to the cliff and pushed it over there might have been some blood found on his clothes; but on the appellant’s version of events he dragged Ms Daly by the ankles and this would not necessarily have brought him into contact with any blood. The serious injuries which brought about the death were caused by the body falling from the top of the cliff.

Further, neither the jury nor this Court is obliged to assume that the inability of the police to find any forensic evidence pointing to the appellant as the killer proved positively that no such evidence could have been obtained; experience suggests that forensic evidence presented on the prosecution’s side often, but by no means always, manifests a high degree of expertise in investigation.

Based on the psychiatric evidence, aspects of which are discussed above, the appellant argued that the Court should not be satisfied with the verdict unless there were to be found in the evidence indications of the truth of the confessions, consisting in particular of information, contained in the confessions, unlikely to have been got from the appellant’s visit to the scene of the killing with Billy Duke. This argument of the appellant overlaps with the criticism of the judge’s directions and some aspects of the topic have been dealt with above under the heading "Directions". In addition to those, other features of the Crown case require mention, in this connection.

The respondent argued that the Court was entitled to take into account that the appellant’s story of having dragged Ms Daly’s body by the feet or ankles, face down, was consistent with the medical evidence and unlikely to have been deducible from the appearance of the body when the appellant saw it with Billy Duke. That appearance is to be seen in the photographs. In our opinion this contention has substance. If the jury accepted Billy Duke’s account of events, they would have decided the case on the basis that the appellant did not go any closer to the body, when Duke was there, than about 10 metres. If so, that must have made it more difficult for him to surmise that the body was dragged face down. The medical evidence on this point was from a Dr Zillman, a pathologist, who found abrasions to the face, extensive abrasions over the breasts, lower chest and upper abdomen. The doctor pointed out that at the top of some of the abrasions were skin tags indicating the direction of force as being from below upwards. When seen by the appellant in the presence of Billy Duke, the body was lying face down and the abrasions just mentioned would, it appears, not have been visible. The medical evidence points to a dragging by the feet in a face down position; it is not easy to see how the appellant could have been as confident as he appeared to be that this is the way the body had been moved, from its appearance as depicted in the photographic exhibits - i.e. as observed by him in the presence of Billy Duke.

The appellant gave the police some details of the way in which Ms Daly was killed which, if true, could not have been deduced from anything which he saw with Billy Duke. Examples to be found in the evidence are his explanation of the complications of getting the body past obstacles consisting in a fence and supporting strut at the top of the cliff and his statement that there were three "bumps" of the body on the cliff before it hit the bottom. These details may of course be explained away simply, by postulating that they too were invented. It cannot be proved independently that the body was got past the obstacles in the way the appellant described; yet if the appellant’s confessions were an attempt to portray himself, falsely, in such a way as to become a notorious murderer, the inclusion of such details would be puzzling; they did not add any particular interest or horror to the story.

When the evidence relied on by the prosecution as pointing to the truth of the confessions is all weighed up it adds some, but not overwhelming, strength to the Crown case. In the end the outcome of the appeal must be a matter of impression. The theory that the explanation to the police of the manner of Ms Daly’s death was merely another one of the appellant’s fantasies, like the extravagant stories of his sexual misconduct with animals, is less than compelling. As explained by the appellant to the police the killing was not a bizarre event, but apparently stemmed from his reaction by the appellant to Ms Daly’s conduct, leading to a blow which was not, on the appellant’s account, necessarily intended to kill; then the act of pushing the body over the cliff, which in truth caused the death, was it seems portrayed by the appellant as having been done with no intention of harming Ms Daly, but as an act of panic. The jury was entitled to think that the story of Ms Daly’s death was not in the pattern of the improbable lies about wrong-doing spoken of by the psychiatrists, but was basically an unembroidered though rather self-justificatory account of the way in which Ms Daly died.

It is our view that, despite the evidence of the appellant having previously made up stories about misdeeds he supposedly committed, the jury acted reasonably in accepting that, as the appellant told the police, it was he who killed Ms Daly.

The appeal is dismissed.