R v Ford - [2003] NSWCCA 5

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Ford [2003] NSWCCA 5

FILE NUMBER(S):
60487/00

HEARING DATE(S): 23 October 2002

JUDGMENT DATE: 06/02/2003

PARTIES:
Regina v Glen Ian Ford

JUDGMENT OF: Heydon JA Hulme J Hidden J

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 98/91/0021

LOWER COURT JUDICIAL OFFICER: Barr J

COUNSEL:
Appellant in person
Mr W G Dawe QC (Respondent)

SOLICITORS:
Appellant in person
S E O'Connor

CATCHWORDS:
Murder - appeal against conviction - leave to appeal against sentence - supply of questionnaire to jury by trial judge - whether substitute for oral directions - jury request for 'previous testimony' of witness - need for independent pathologist - failure to supply photographic evidence - jury member conflict of interest - circumstantial case - sentence not manifestly excessive - no special circumstances

LEGISLATION CITED:

DECISION:
See paragraph 29

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60487/00
HEYDON JA
HULME J
HIDDEN J
6 February 2003

REGINA v Glen Ian FORD

Judgment

HEYDON JA: On 11 May 2000 the appellant was convicted by a jury of the murder of Wayne Thomas Jackson at Tocumwal, after a nine day trial presided over by Barr J. That was his second trial on that charge, the jury at the first trial having failed to agree. He was sentenced to sixteen years imprisonment with a non-parole period of twelve years. He appeals against conviction and seeks leave to appeal against sentence. He was represented at the trial but not the appeal.
The background facts
The background facts are well set out in the trial judge’s remarks on sentence.
“In December 1997 the offender was staying at a camp on the southern bank of the Murray River at Tocumwal with a man called Greg Baldwin. Saturday 14 December was Mr Baldwin's fortieth birthday and a party was held at the camp in celebration. A number of guests attended, including Wayne Jackson, the deceased, who was a distant relative of Mr Baldwin. Those at the party, including the offender and the deceased, had something to drink. There were angry words between the two of them but the evidence does not enable me to say how they arose. It was submitted that the deceased had threatened the offender and wanted to fight him, but I do not accept that submission because I do not consider that the evidence upon which it was based was reliable.
I am satisfied beyond reasonable doubt that the following events happened on the next day. The offender and the deceased were still at Greg Baldwin's camp. The deceased and others were telling racist jokes. The deceased, who was Aboriginal, told a joke against Aborigines. The offender became irritated and remonstrated with the deceased, who observed that one ought to be able to laugh at oneself. He continued by telling a joke offensive to New Zealanders. Everybody at the camp knew that the offender was a New Zealander. He became more angry and tried to pick a fight with the deceased. The atmosphere became so unpleasant that Greg Baldwin and the deceased and a friend, Steven Peacock, left the camp and walked to a nearby campsite. They remained there, talking to the occupants.
Some time later the offender followed them there and resumed his attempts to pick a fight with the deceased, who ignored him. Greg Baldwin went back to his camp to obtain some more beer and returned in due course.
The offender also returned to the Baldwin camp, muttering as he did so that he would not stab the deceased in the back but in the chest. When he arrived there he picked up a knife, part of the kitchen utensils, and returned to where Mr Baldwin, Mr Peacock and the deceased were. The unpleasantness continued and for a second time Mr Baldwin, Mr Peacock and the deceased walked away from the offender. They went towards their camp.
Once again the offender followed, this time armed with the knife. He caught up with the deceased, who was lagging behind the other two, and repeated, this time to the deceased, that he would kill him and that he would stab him in the chest, not in the back. The deceased must have realised that he could avoid the offender no longer and turned and either threw a can of beer at the offender or hit him with it. The two men closed in a fight and the deceased knocked the offender to the ground. Whilst the offender was on his back on the ground and the deceased was on his feet leaning over him the offender held the deceased's right upper arm or shoulder with his left hand and stabbed him three times with the knife in his right hand. Two blows hit the deceased's left upper arm but the third penetrated his chest and went into the heart. The deceased was taken urgently from the camp to hospital but died as a result of that wound.
The offender remained at the camp. He and his t-shirt were covered in the deceased's blood, and he went to the river, washed himself and his shirt and threw the shirt away out of sight. He wiped the knife clean and put it back where it belonged. He kicked dust and rubbish over spilt blood. Then he started making preparations to leave the site. His car would not start and he became very angry and violent when refused a lift into Tocumwal. He went to a good deal of trouble before he finally got his hands on a battery and started his car, but the police arrived before he could get away.
It was submitted on behalf of the offender that the Court should have a reasonable doubt whether he intended to kill the deceased. It was pointed out that there were only three wounds and that only one of them was deep and that, according to the evidence of Dr Duflou, only moderate force would have been required to inflict them. If the offender had really intended to kill he would have attacked the deceased with the knife as soon as he brought it back from the Baldwin camp. Instead he secreted it and started a fist fight.
I think the offender's persistent pursuit of the deceased quite remarkable. He told him that he would kill him. More importantly, according to the evidence of Tracey O'Hara, which I accept, the offender said to himself as he walked back to the Baldwin camp to get the knife , ‘I'll kill you, I won't stab you in the back, I'll stab you in the chest’. Those words and everything else the offender said and did show that for some time before he engaged the deceased the offender's intention was to kill him. Sometimes people make empty threats to kill, but I do not think that the offender's threats were empty. I think that he killed the deceased as he told himself he would, by stabbing him not in the back but in the chest. I think that the fact that two of the thrusts wounded the upper arm had more to do with the movement of the deceased than the aim of the offender.
I am reinforced in these conclusions by the words and actions of the offender after he stabbed the deceased. He chased the car carrying away the mortally wounded man, yelling, ‘Come back here, I want to kill you’. He held up his shirt, which was covered with the deceased's blood, and yelled to anyone who would listen that it was not his blood and that ‘no black bastard stands over a Kiwi’. When later told by Senior Constable Lovell that the deceased had died he continued his antagonistic attitude. The only reasonable conclusion to be drawn from all this evidence, in my view, is that the deceased achieved what he intended, namely the death of the deceased.
It is easy to accept that the offender must have felt insulted about the joke told by the deceased, but it is difficult to understand the reaction which was engendered in him. One might have expected to see an outburst of indignation, even accompanied by violence in a person who lacked self-control, but what the offender did was quite remarkable. Far from cooling down, he became more and more angry as the morning wore on, pursuing the deceased and his companions successively from one place to another and trying to engage him in a fight. The deceased gave him no encouragement, but his refusal to fight appears to have enraged the offender further, so that by the time he reached the Baldwin camp alone he had entirely lost control of his temper and had formed the intention not just to fight but to kill.”
The structure of the appellant’s submissions
The appellant organised his submissions under seven heads. It is convenient to consider his arguments in a different order from those in which he advanced them.
Introduction of questionnaire to jury
The trial judge gave the jury a seven page document containing five questions through which they were to work, and outlined directions on the law.
The appellant submitted that this was an error:
“The reasons I believe this is so, are; the language used could have been confusing to a lay person. The questionnaire made certain presumptions about the level of education of the jurors especially whether all the jurors without exception could read and write, and understand the tone of language presented.
After careful consideration as to the complexity of the murder manslaughter deliberation process, the questionnaire only adds to my overall confusion and does not help me make sense of the process, and therefore the jury as my peers would also find it confusing. This questionnaire would have added yet another obligation upon the shoulders of the jury whom already share a great burden of grave responsibility.
After four and a half years imprisonment I have never heard or read (with the exception of one case) of a questionnaire being handed to a jury to decide whether a person should be found guilty of murder or manslaughter.”
This submission must be rejected. It is common for the course adopted by the trial judge to be adopted in homicide cases as in others. Though documents of the type given to the jury are commonly not a substitute for the oral directions, they can greatly assist the jury to follow and apply the oral directions. On 9 and 10 May 2000 the trial judge advised counsel that he would be following the course he did. Counsel for the accused did not oppose that course. The only comment he made about the document was:
“The jury in my submission ought to be told, and it is probably obvious, that that is merely a summary of the directions and that your Honour is going to be giving them full directions of law.”
The trial judge agreed to tell the jury that and in substance he did so. The oral directions themselves were impeccable and clear, and the document was no more difficult to understand than the oral directions.
The appellant made some criticisms of the precise wording of the document, but these are purely verbal and lack substantive merit.
Disallowance of jury request
On the second day of the trial the jury sent the following note to the judge:
“May we please have access to the first typed statement made by Tracy O’Hara to police on 14 December 1997.”
In the absence of the jury, the trial judge said:
“It is not in evidence. I think the answer is simply no, it is not in evidence. If there are reasons why it is not put into evidence, that may be reasons concerning the admissibility of evidence and the way that counsel conduct the case and so on. I will tell them that.”
When the jury returned, the trial judge said:
“You have asked to have a copy of the original statement of Miss O’Hara made in December 1997. It has been referred to in the evidence this morning. The answer is that I can’t let you have a copy of it. You must judge this case only upon the evidence that is put before you and that particular statement has not been tendered in evidence so that the evidence of Miss O’Hara that you have is the evidence which she has given in the witness box.
I might say that the matter has not been dealt with in any bloody minded way, if I can put it that way. There are rules of evidence which govern the admissibility of documents and just because a document happens to be referred to in evidence, that does not mean that the document itself will or may necessarily come into evidence. In this case the document has not. Another thing which governs whether documents come into evidence depends on the way the case is conducted by counsel. As I say, in this case that particular document has not come into evidence, so the evidence of Miss O’Hara that you have and upon which you will judge this case together with all the other evidence is what she has given to you in the witness box this morning.”
The appellant complained of that ruling. He said, given various contradictions in Tracey O’Hara’s evidence, that it was wrong to refuse access to “previous testimony”. But, as the trial judge explained, what was requested was not previous testimony, and the trial judge’s ruling was correct. In oral argument the appellant contended that the fact that the relevant document “was referred to constantly during cross-examination … entered the statement into evidence”. That is not so. The appellant also submitted that the jury may have mistakenly asked for another document. There is no basis to support the theory that they were mistaken.
In the course of the appellant’s submissions on this point, he asserted that the contradictory and changeable nature of Tracey O’Hara’s testimony undermined the credibility of the conviction and made it unsafe and unsatisfactory. In view of the strength of the other evidence, that conclusion does not follow.
Forensic evidence
The appellant submitted that Dr Bottwill, a forensic pathologist called by the Crown to prove the cause of death, lacked sufficient experience to provide testimony, and that there should have been “an independent pathologist”. Counsel for the accused at the trial did not object to his evidence on grounds of want of expertise or at all, nor did he cross-examine to suggest a want of expertise or experience. In the circumstances that complaint must fail.
The appellant also complained that a beer can which the victim had used to render the appellant unconscious had never been tested forensically.
The appellant did not allege to the police when he was arrested that the deceased had hit him on the forehead with a full can of beer. Hence the police were not alerted to the need to test any can of beer. The only evidence that the deceased had hit the appellant with a container of beer was Tracey O’Hara’s evidence that the deceased “threw a stubby at him” – ie a bottle, not a can. She did not say whether it hit him. In cross-examination she adhered to the proposition that it was a stubby, and said it hit the ground. This complaint must be rejected.
Statements not taken by the police
The appellant said:
“On the day of the incident the 14th of December 1997 there were six other people present at the Stratton campsite, moments before the incident took place. These people would have heard the victim and myself arguing and may also have seen the confrontation and ensuing struggle. These people if interviewed would have been able to corroborate my testimony, about what was said by the victim towards me, and clarify who was responsible for saying what.
The police investigation may have concluded that their evidence would not be needed as it may directly contradict the line of the police investigation. So the police may have failed to conduct their investigation properly, thus denying the defence the ability to provide corroborative witnesses for the defendant.
Referring to a conversation that I had with my Legal aid solicitor Ms Meredith Phelps regarding an investigation into the reasons why statements were not obtained from the witnesses available at the scene by the defence. My solicitor advised me that there was no funding available from legal aid for an investigator.
In conclusion it is my belief that witnesses at the scene whom did not have statements taken from them, either at the scene, or at a later period could have provided important evidence in the defence case. This and the aforementioned premises lead to my belief that a fundamental miscarriage of justice in the form of unexamined evidence, added to the detrimental outcome of my trial.”
The appellant did not identify who the six other people were. The Crown’s written submissions contended that the eye witnesses called, some of whom were intoxicated and some not, gave evidence which contained variations but was reasonably consistent; and that there was nothing to indicate that any other observer of the scene had any additional information. While in oral argument the appellant said the variations between the witnesses were not minor but major, he did not meet the point that the uncalled witnesses were not identified and that it was speculative to suppose that they would have assisted the defence. This ground thus fails.
Failure by police to supply photographic evidence
The appellant contended that Detective Sergeant Smart took photographs of defensive wounds on the appellant’s hands on 14 December 1997 at Cobram Police Station. Detective Lovell said he believed Detective Sergeant Smart did photograph the appellant’s hands. The appellant submitted:
“Police photographer Det Srg Smart in failing to supply photographs or suppression of photographs that he did in fact take, denied the defence conclusive evidence of the defensive wounds sustained by the defendant. It is my understanding that the jury being judges of evidence are asked to judge the validity of a witnesses testimony, while a photograph can be considered conclusive, therefore the lack of photographs unfairly damages the credibility of the defence.
The crown had 89 photographs and I find it extremely suspicious that the two photographs that meant anything to the defence were mysteriously lost. These points add to an overall prejudice set at the trial by the crown.”
The appellant did not point to any police evidence which indicated that there was anything noticeable on his hands which might justify them being photographed; in particular he did not deal with Detective Sergeant Smart’s evidence that he could not recall seeing grazes to the back of the appellant’s hands. That evidence was given in cross-examination, but no attempt was made by the cross-examiner to shake it. Dr Guymer, who examined the appellant at 1.30pm on 15 December 1997, noticed “a large number of little grazes to the backs of his hands [which] I felt … were consistent with his occupation as a fruit picker”. He also noticed a wound on the left second finger 1.2 centimetres long. It has not been demonstrated why Detective Sergeant Smart’s evidence was not acceptable, nor has it been demonstrated that he suppressed photographic evidence; nor has it been demonstrated that he failed to take photographs he ought to have taken.
Did any jurors know witnesses?
The appellant submitted:
“Before the second trial started on the 1st of May 2000 it was brought to the attention of His Honour Justice Barr that two witnesses of the prosecution were known to a jury member, these witnesses were (John Charles Monk, and David James Monk). The jury member recognised that these brothers lived on the same street as himself, after consideration by His Honour his conclusion was that they had little or no contact with each other and this would not cause any conflict of interest in the trial.
But a second incident where a jury member was acquainted with the police photographer as a neighbour could have constituted a prejudice against the defence for example, if they were friends the jury member could have unfairly promoted the police photographers testimony in the Jury room prejudicing the defences rebuttal.
His Honour after examining the situation decided that the jury was fit to be empanelled, I believe His Honour may have erred in his decision.”
The submission appears not to complain of the trial judge’s decision in relation to the juror and the Monks. The court was not taken to any part of the transcript recording it. An affidavit filed by the solicitor instructing counsel for the Crown stated that the deponent had no recollection or record of it. At all events no error in the decision has been demonstrated.

So far as the relationship between the jury member and the police photographer is concerned, again the court was not taken to any part of the transcript. The affidavit said:
“I do have some recollection, but I have not recorded the same, that there were some discussions between the defence and his Honour, concerning potential jury members being acquainted with Detective Senior Sergeant Smart, Physical Evidence Officer of Albury Police Station, who was called on behalf of the Crown.”
That was the limit of the deponent’s recollection as recorded in the affidavit. He was cross-examined before this Court and said that when the names of Crown witnesses were read out, one or two jurors said they knew Detective Sergeant Smart.
No adequate reason has been advanced for interfering with whatever discretionary decision the trial judge arrived at in relation to the matter.
Circumstantial case
The appellant submitted:
“During the prosecutions case especially his introduction the crown prosecutor Mr W Creasey made promises to the court that he would prove beyond reasonable doubt that the defendant was guilty. After the crown prosecutor closed his argument I came to the conclusion that the prosecutions case contained solely circumstantial evidence, nor did the crown prosecutor prove beyond reasonable doubt his assertions made about the guilt of the defendant, as none of the crown witnesses saw a knife. See prosecution witness (Ms Tracey O’Hara Transcript on the 2nd of May 2000, pages 52 to 88) (Appendix B). Who was the only exception but withdrew her assertions about seeing a knife during the cross examination, nor did the crown prosecutor prove that the defendant armed himself.
The defence’s case being one of self-defence was not disproved by the prosecutions witnesses.
In Luxton v Vines 1952, 85 CLR, 352, Dixon, Fullagar, and Kitto said (at 358): (See Appendix A)
‘The facts must be such as to exclude reasonable hypotheses consistent with innocence.’
In Case stated By DPP (No 2) (1993) 70 A Crim R 323 (SA CCA) King CJ said (at 327) (see Appendix A)
‘In a circumstantial case that implies that even if all the evidence for the prosecution were accepted and all inferences most favourable to the prosecution which are reasonably open were drawn, a reasonable mind could not reach a conclusion of guilt beyond reasonable doubt, or to put it another way, could not exclude all hypotheses.’
This was not achieved in the prosecutions case, therefore I believe that the prosecution did not prove their case and it was not open to the jury to be satisfied beyond reasonable doubt, as to the defendants guilt therefore the verdict of guilty is unsafe.”
At the end of the day before summing up, the trial judge asked counsel for the defence whether the case was “circumstantial”. Counsel said ”Yes”. The trial judge said: “There is evidence that he was there in the fight.” Counsel said: “Yes, there is no question. There is direct evidence of that.” The trial judge said: “And that he stabbed him three times. Those two facts don’t sound to me to add up to a circumstantial case.” Counsel said he would consider the matter overnight.
In his summing up, the trial judge gave impeccable directions on the drawing of inferences from direct evidence, and the need for extreme care in that regard because of the standard of proof. He then said:
“In this case you are asked to draw some very important inferences. The principal one is that the accused did stab Wayne Jackson with the Wiltshire knife. It seems clear that no witness has actually told you that they saw him hold the knife and strike at the deceased’s body. You are, however, invited to infer from a combination of things that those witnesses have said and heard that he did so. To convict the accused of any offence in this trial you would have to be satisfied beyond reasonable doubt that the only rational and sensible inference to be drawn from the evidence about what he did is that he stabbed the deceased. In the end if you have a reasonable doubt about that you must acquit him of any offence.”
A little later he said:
“You must be satisfied beyond reasonable doubt that the deceased came to be stabbed in the manner contended for by the Crown, that the accused, having the knife, deliberately thrust upwards at the deceased, stabbing him in the shoulder and the chest.
There are only two possible versions of how the knife was taken to the fight. It was Greg Baldwin’s knife and the last he had seen of it was earlier on the same day when he had used it to cut up meat at the camp. He left it there. Both the accused and the deceased were at the camp after that, so either of them could have picked it up.
The point I want to make is that it has not been suggested that either the accused or the deceased came by the knife by some other means, for example, that he saw it on the ground as the argument took place and opportunistically picked it up. One of them must have been carrying the knife as they walked back down the track from the Stratton camp towards the Baldwin camp. You must be satisfied beyond reasonable doubt that it was the accused who was carrying the knife.”
The trial judge then reviewed the evidence. At the end of the summing up counsel for the accused did not seek any redirection of any kind.
The case was not solely circumstantial; the trial judge’s directions were correct; and there is nothing to suggest that it was not amply open to the jury to convict.
Trial judge adopting Crown role
Though no separate ground was listed contending that the trial judge adopted a posture more appropriate to counsel for the Crown, the appellant did make a brief submission to that effect. The appellant failed to demonstrate by textual means that this had any merit.
Sentence
The appellant advanced no argument in support of his application for leave to appeal against sentence.
The sentence is not in itself manifestly excessive – indeed, it was very far from being manifestly excessive. There was no error in the trial judge’s decision that there were no special circumstances. There is no other type of error in the trial judge’s reasoning in relation to sentence.
Orders
The following orders are proposed:
1. The appeal against conviction is dismissed.
2.The application for leave to appeal against sentence is granted, but the appeal is dismissed.
HULME J: I agree with Heydon JA.
HIDDEN J: I agree with Heydon JA.

LAST UPDATED: 06/02/2003