R v GAVARE

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v GAVARE
[2012] SASCFC 52
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Anderson and The Honourable Justice White)
4 May 2012
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - ALTERNATIVE VERDICTS - DIRECTIONS TO JURY - WHERE EVIDENCE TO SUPPORT VERDICT OF MANSLAUGHTER
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - CIRCUMSTANTIAL EVIDENCE - MOTIVE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appellant convicted of murder by judge sitting without a jury – sentenced to life imprisonment – 32 year non-parole period.
Appeal against conviction - Appellant conceded that it could be concluded from the evidence that the appellant had unlawfully killed the victim – whether the evidence was capable of proving beyond reasonable doubt that the appellant intentionally killed the victim – whether the evidence excluded the reasonable possibility of accident or manslaughter – whether the trial judge misdirected herself as to the appropriate standard of proof when considering motive as evidence of murderous intent.
Held: The trial judge correctly concluded that the evidence proved beyond reasonable doubt that the appellant intended to kill the victim - the trial judge correctly directed herself on the circumstantial evidence – all aspects of the evidence were appropriately considered – trial judge did not misdirect herself as to the appropriate standard of proof when considering motive as evidence of murderous intent.
Appeal against conviction dismissed.
Appeal against sentence – whether the trial judge placed excessive weight on the manner in which the victim’s body was disposed of – whether the sentence was manifestly excessive.
Held: There was no error demonstrated in the sentencing process – the dismembering and disposal of the victim’s body are relevant matters under s 10 of the Criminal Law (Sentencing) Act 1988 (SA) - sentence was not manifestly excessive.
Appeal against sentence dismissed.
Criminal Law (Sentencing) Act 1988 (SA) s 10, referred to.
Butler v The Queen (2011) VCSA 417; R v Dam Chi (1986) 23 A Crim R 38, considered.

R v GAVARE
[2012] SASCFC 52
Court of Criminal Appeal: Vanstone, Anderson and White JJ

VANSTONE J: I would dismiss both appeals. I agree with the reasons of Anderson J.
ANDERSON J.
Introduction
This is an appeal against a conviction for murder and an appeal against sentence. A Judge of this Court sitting without a jury found the appellant guilty of the murder of Vonne Isabelle McGlynn at Reynella on about 3 December 2008.
The first issue on the appeal against conviction is whether the evidence was capable of proving murder as opposed to manslaughter. The appellant also complains that the Judge misdirected herself as to the appropriate standard of proof in considering the issue of motive as evidence of murderous intent.
The appellant was imprisoned for life and sentenced to a non-parole period of 32 years. The appellant appeals against sentence on the basis that 32 year non-parole period is manifestly excessive.
Background
I shall briefly summarise the details of the key identities in the trial.
Victim
Ms McGlynn was an 83 year old woman who lived alone at Somerfield Avenue, Reynella. She was independent, intelligent, quite active for her age and in reasonably good health. She was a very private woman who enjoyed travelling frequently on both short day trips and for longer holidays. She always alerted the Red Cross and her neighbours of her intended absence when she was going away for more than a day.
Evidence revealed that Ms McGlynn often walked to the nearby shops and enjoyed spending time in her garden. She would often frequent McDonalds for breakfast which was available daily until about 10.30 am. Although she had a good relationship with her neighbours and close friends, they only occasionally went to visit her in her home.
Ms McGlynn was last seen in her front garden by her neighbour, Ms Zadow, on Tuesday 2 December 2008.
The appellant
The appellant is a 37 year old woman who was born in Latvia on 3 December 1975. She moved to Australia in 2001 on a spousal visa after meeting her second husband.
The appellant has two daughters, the eldest born in Latvia in 1998 and the youngest born in 2005. The youngest is the daughter of Giuseppe Daniele, who is the appellant’s former partner. They met at the end of January 2005 and lived together in Mr Daniele’s house from May 2006. Throughout periods of 2005 and prior to moving in with Mr Daniele, the appellant and her children lived with her mother, Inara Dombrovska, at Somerfield Avenue, Reynella, only a short distance from the victim’s house.
The appellant’s relationship with Mr Daniele ended in the middle of 2006 and she moved out of his home in July 2006. She no longer had any contact with Mr Daniele after this time. Shortly after, the appellant purchased her own home at Scottsglade Road, Christie Downs and moved in on 18 August 2006.
In the middle of 2008, the appellant commenced a new relationship with a man called Eijaz Ahmad. During this time she had been working at a newsagency at Noarlunga but was dismissed for stealing a credit card. During 2008, the appellant was also studying accounting at Noarlunga TAFE which she attended on Tuesdays and Thursdays. She was still a student at the time of Ms McGlynn’s death. In fact she sat for an exam, which she passed, at about the time of the murder of Ms McGlynn.
Inara Dombrovska
As mentioned earlier, Mrs Dombrovska is the appellant’s mother. She knew Ms McGlynn by sight, as she saw her from time to time walking up and down the street on which they both lived. She never had a conversation with Ms McGlynn but would often say hello if she saw her. Mrs Dombrovska became aware of Ms McGlynn’s disappearance when she saw a television news report.
Mrs Dombrovska testified at trial to a conversation that she had on Christmas Eve 2008 with the appellant regarding the disappearance and death of Ms McGlynn. I will discuss the particulars of this conversation later in these reasons.
Agnese Dombrovska
Agnese is the appellant’s sister. For the purposes of avoiding confusion between the appellant’s mother and sister, I will refer to the appellant’s sister by her first name.
It is not clear if Agnese knew Ms McGlynn by sight. She gave evidence regarding the similarities between a pusher that her mother, Mrs Dombrovska, had when she was running a family day care business and the pusher found by police on 25 February 2009 in bushes adjacent to the bikeway on the eastern side of the Expressway in the Christies Creek area.
She also testified as to the conversation that took place on Christmas Eve 2008 between the appellant and Mrs Dombrovska regarding Ms McGlynn’s death as she was present during the discussion.
I will discuss Agnese’s evidence regarding the pusher and the Christmas Eve conversation later in my reasons.
Mr Daniele
As discussed earlier, Mr Daniele was previously in a relationship with the appellant and they are the parents of the appellant’s youngest daughter.
The appellant and Mr Daniele were not on good terms after the breakdown of their relationship and had not spoken for some years. The appellant had commenced litigation against Mr Daniele concerning an alleged assault upon her in around June 2008.
Mr Daniele agreed that in early December 2008 he drove past the appellant’s house at Christie Downs, as he wanted to check her address. He did this so that he was able to commence proceedings for access to his daughter. He needed the address for his lawyer.
On 3 December 2008, Mr Daniele attended his nephew’s twelfth birthday party at Rose Park from approximately 4.30 pm till 10.00 pm. This was confirmed by Ms Nudo, Mr Daniele’s sister.
Circumstances of death
The last contact with Ms McGlynn was on 3 December 2008 when the Red Cross called her as part of an arranged practice at around 7.00 to 7.30 am. Police were alerted by the Red Cross when she failed to answer their call on the following morning. Police attended her residence that day and re-attended on 5, 6 and 9 December 2008. They did not see or find Ms McGlynn but noticed on one occasion that the manhole cover inside the house was open.
On 5 December 2008, Ms McGlynn’s neighbour, Mr Zadow, noticed that there was a hole in the roof of Ms McGlynn’s home where tiles had been dislodged.
On 5 December 2008, a caller identifying herself as Isabella McGlynn called the Salvation Army wanting to donate furniture from Ms McGlynn’s address.
On 8 December 2008, a woman identifying herself as Mrs V.I. McGlynn called the Onkaparinga Council requesting the collection of hard rubbish from Ms McGlynn’s address.
The police attended the appellant’s home on two occasions and found in her possession items belonging to Ms McGlynn. These were her bank card, house keys, purse, passport, personal photographs, a table and a toaster/oven.
The police interviewed the appellant on a number of occasions regarding her relationship with Ms McGlynn. I will discuss these interviews later in my reasons.
On 23 and 25 February 2009, body parts of Ms McGlynn were found in the Christies Creek in close proximity to the appellant’s home. A number of her body parts had been cut with an “instrument like a saw”. Ms McGlynn’s head and hands have still not been found. A forensic pathologist, Dr John Gilbert, said that no cause of death could be identified due to the severe decomposition of her body.
Police found some of Ms McGlynn’s remains and property at six main locations within the Christies Creek area.
On 23 February 2009 Ms McGlynn’s leg was recovered from the Christies Creek Reserve, which is between 50 and 100 metres from, and almost directly opposite, the appellant’s home in a northerly direction.
In the same reserve on 25 February 2009 Ms McGlynn’s torso was located, just over 200 metres from the appellant’s house in an easterly direction. On the same day were located pieces of a statue belonging to Ms McGlynn and a Steelcraft pusher, both approximately 200 metres from the appellant’s house in an easterly direction.
On 15 March 2009, police located additional pieces of Ms McGlynn’s statues. These finds were located less than 300 metres from the appellant’s house in a southerly direction.
The Judge was satisfied that the pusher was used in disposing of some or all of the remains of the deceased: [54]
Prosecution case at trial
The prosecution case was that the appellant killed Ms McGlynn for monetary gain. It was asserted that after the murder of Ms McGlynn, the appellant engaged in conduct which showed that she was preparing to sell or rent Ms McGlynn’s house. The prosecution contended that the appellant was confident that Ms McGlynn would not return to frustrate her plans because she knew that Ms McGlynn was dead. This was because she had killed her, dismembered her body, wrapped her in plastic and sheets and transported her to Christies Creek and disposed of the body parts.
In addition, the prosecution evidence indicated that on 9 December 2008 the appellant went to the ANZ Bank at Morphett Vale North and attempted to withdraw $2,000 from Ms McGlynn’s savings account using Ms McGlynn’s debit card and a forged power of attorney.
The prosecution led compelling evidence to prove that the appellant disposed of the deceased’s body. The pusher which the Judge found was used to transport some of Ms McGlynn’s remains had blood at the base of the seat which matched Ms McGlynn’s DNA. The pusher found by police had a missing screw underneath. The missing screw was in the position identified by Agnese in relation to a pusher owned by her mother, Inara Dombrovska.
The prosecution also led DNA evidence to show that Ms McGlynn’s blood was located on the boot kick panel of the appellant’s car.
Defence case at trial
The appellant gave evidence at the trial in which she denied killing Ms McGlynn. The appellant blamed her ex-partner Mr Daniele for the death of Ms McGlynn. The defence case was that the appellant decided spontaneously to take advantage of the opportunity to commit theft once she learnt from Giuseppe Daniele on the nights of 3 and 6 December that Ms McGlynn was dead.
The appellant’s evidence was that Mr Daniele arrived at her house between 9.30 pm and 10.00 pm on 3 December 2008, asserting that he had been in a car accident in which he had hit Ms McGlynn, a pedestrian, because he was paying attention to the house numbers on Somerfield Avenue, Reynella. He threatened the appellant and demanded that she go with him to Ms McGlynn’s house. She was frightened and agreed to go.
The appellant drove to Somerfield Avenue, Reynella in her own car, following Mr Daniele. When they arrived, Mr Daniele opened Ms McGlynn’s house with the keys he had. When the appellant entered Ms McGlynn’s home, she saw a bloodied Ms McGlynn on the sofa, seriously injured.
The appellant tried to find a pulse but could not do so. At the request of Mr Daniele, the appellant helped him carry Ms McGlynn outside into Ms McGlynn’s backyard.
The appellant said that Mr Daniele wanted to make the incident look like a robbery. The appellant stole a toaster/oven and put it in the back of her car. Mr Daniele gathered personal items of Ms McGlynn, including a table, and placed them in a box and put them in the boot of the appellant’s car. She then drove home to Christies Downs.
After going through the box of items that Mr Daniele had given to her, the appellant thought that she could take advantage of the situation and embarked on a fraud. She forged a power of attorney and illegally obtained a Justice of the Peace stamp with the intention of selling Ms McGlynn’s property.
The defence case was that her objective was only to steal.
Defence counsel at trial argued that there were three “indispensable intermediate facts” which needed to be proved before the accused could be found guilty of killing the deceased. They were that the accused:
·had possession of Ms McGlynn’s property;
·dismembered Ms McGlynn’s body; and
·disposed of Ms McGlynn’s body.
At both the trial and on this appeal, counsel conceded that the plan that involved stealing Ms McGlynn’s money and obtaining and selling her property could not have succeeded if she was still alive.
Defence counsel also conceded at trial that whoever dismembered the body was probably the killer because only the killer would have reason to undertake this process. And whoever disposed of the body parts was probably the killer.
Interviews with police
A number of interviews took place between the police and the appellant. They are lengthy and covered a wide range of topics. I will not discuss these interviews in detail. The appellant in her oral evidence admitted that the content of these interviews was all lies. Her Honour did not rely on these lies as evidence of a consciousness of guilt. Defence counsel did not rely on anything said by the appellant in those interviews.
The essence of the appellant’s version to the police was that she and Ms McGlynn were friends. She believed that Ms McGlynn had gone on a holiday but could not recall where she had gone or when she was due to return. Ms McGlynn had hired her to renovate her house and had given her a power of attorney for the purpose of withdrawing the necessary funds to commence the renovations. Ms McGlynn had also given her the house keys, bank card and other personal items and documents for safe keeping while she was away.
As can be seen, the information provided by the appellant to the police bears no resemblance to the evidence which she gave in court.
Statements to Mrs Dombrovska
Mrs Dombrovska testified to a conversation with the appellant on Christmas Eve 2008, some three weeks after Ms McGlynn’s disappearance. The conversation between mother and daughter concerned the disappearance of Ms McGlynn. The appellant made significant admissions. The trial Judge describes the conversation in the following way:
[59]… Although she was not clear on the sequence of the conversation Inara Dombrovska testified that the accused told her she had been watching Ms McGlynn for “some time” and that she went to her house while Ms McGlynn was at McDonalds. She made Ms McGlynn “unconscious” and searched her house. After she made Ms McGlynn unconscious she went back to her home and returned to Ms McGlynn’s house later that evening. The accused told her that she then wrapped Ms McGlynn in plastic and sheets and took her somewhere south out of the city. She did not say how she got her out of the city. Nor did she say how the accused rendered Ms McGlynn unconscious. …
Mrs Dombrovska believed that the appellant had also told her on the same evening that she had faked a power of attorney and illegally ordered a justice of the peace stamp in order to complete the witnessing of Ms McGlynn’s signature. She told her that with this power of attorney she intended to sell Ms McGlynn’s house and buy another.
Mrs Dombrovska stated that her daughter told her that she had entered Ms McGlynn’s house through the roof. In cross-examination Mrs Dombrovska did not agree that the words to the effect of “yeah mum, I climbed in through the roof and hit her on the head and put her in the backyard” were of a sarcastic nature. Mrs Dombrovska said that it was clear that the appellant did not want to be questioned further about Ms McGlynn. It was specifically put to her in cross-examination that her daughter was being sarcastic. She did not agree with this. She said:
I think there is a better word to describe it, but I think her intention was to tell me to “Leave me alone with this stuff”, not to bother her.
Mr Pallaras QC, the Director of Public Prosecutions, in his final address to the Judge referred to that passage of evidence, submitting that the words were not uttered sarcastically.
To that extent the Judge is not strictly correct when she says at [66]:
[66]… [Mrs Dombrovska] agreed that the tone of the accused in this conversation was of a sarcastic nature and clearly intended to convey to her mother that the accused wished her to stop questioning her about the topic.
These statements that the appellant made to her mother are important. The trial Judge accepted the truth of Mrs Dombrovska’s testimony and rejected the appellant’s version. The conversation took place both in English and Latvian. Her Honour found that:
[106]Even allowing for the different nuances in translation from Latvian to English, I am in no doubt that on Christmas Eve 2008 the accused told her mother that she waited for the old lady to come back from McDonalds, that she had been watching her for some time and when the old lady returned home she stunned her.
The trial Judge had the benefit of hearing and seeing the witnesses and her acceptance of the testimony of Mrs Dombrovska carries significant weight.
Statements to her sister
Agnese also testified regarding conversations she had had with the appellant regarding the disappearance of Ms McGlynn.
She stated that the appellant had told her that she was the last person to see Ms McGlynn. When Agnese questioned the appellant about the police linking her through evidence to Ms McGlynn’s death, Agnese testified that her sister told her that hair or skin could not go through plastic or sheets and that DNA is only 95 per cent accurate. She also commented that the police would have nothing with which to compare the DNA.
The trial Judge accepted Agnese’s evidence and concluded that the appellant did say those things to her sister. They are significant statements.
The Pusher

The trial Judge accepted that the pusher found in the bushes with Ms McGlynn’s blood stain on the base of the seat was a pusher from Mrs Dombrovska’s house at Somerfield Avenue, Reynella. Her Honour’s conclusions were supported by Agnese’s evidence that one of her mother’s pushers had a screw missing underneath the pusher. This description of the missing screw, in the identical position of the missing screw in the pusher that the police found at Christies Creek area, was an important item of circumstantial evidence. Her Honour found that the pusher had been used to transport parts of the victim’s remains to the Christies Creek area.
Key findings of the trial Judge
The Judge made numerous findings of fact which were not challenged in the appeal. The findings are set out at [135] of her Honour’s reasons as follows:
·    Ms McGlynn was last seen alive by her neighbours on 2 December 2008 in her front yard.
·    On 3 December 2008 Ms McGlynn answered a Red Cross phone call from [Ms] … Treloar at about 8.45 am.
·    On 4 December 2008 Ms McGlynn did not answer four Red Cross phone calls between about 7.50 am and 8.45 am.
·    Ms McGlynn is dead.
·    Partial remains of Ms McGlynn were found by police in the Christies Creek area on 23 and 25 February 2009 respectively.
·    On 4 December 2008 at approximately 6.50 pm the accused tried to access Ms McGlynn’s ANZ bank account online.
·    On 5 December 2008 the accused telephoned the Salvation Army store call centre and used the name of Isabella McGlynn to arrange a pickup date for a collection of eight chairs, one sofa and one dining table from … Somerfield Avenue, Reynella for 23 December 2008.
·    On 5 December 2008 the accused accessed websites on her home computer related to Tony Smallwood, Salvation Army, The Smith Family, … Somerfield Avenue, Reynella and the Land Titles Office websites.
·    On 8 December 2008 at 2.24 pm the accused telephoned the Onkaparinga Council and used the name of Mrs VI McGlynn to request a hard rubbish collection from … Somerfield Avenue, Reynella.
·    On 9 December 2008 the accused went to the ANZ bank at Morphett Vale North and attempted to withdraw $2,000 from Ms McGlynn’s Access Deeming Account.
·    When she went to the ANZ bank on Tuesday 9 December 2008 the accused was in possession of Ms McGlynn’s ANZ debit card and a forged document purporting to give her power of attorney from Ms McGlynn.
·    On 10 December 2008 the accused was found to be in possession at … Scottsglade Road, Christie Downs of the following:
o   the ANZ debit card belonging to Ms McGlynn;
o   the keys to Ms McGlynn’s house;
o   the power of attorney describing Ms McGlynn as the donor and the accused as the donee;
o   other personal documents belonging to Ms McGlynn including bank statements, bills and expired passports.
·    On 19 December 2008 the accused was in possession at … Scottsglade Road, Christie Downs of the toaster oven and the small table.
·    On 25 February 2009 a pusher was found in a bush adjacent to the bikeway on the eastern side of the Expressway in the Christies Creek area.
·    On the base of the seat of that pusher DNA was extracted from a blood stain. That DNA is consistent with the DNA profile of Ms McGlynn.
·    At sometime the accused resided at … Somerfield Avenue, Reynella. Sometime after leaving … Somerfield Avenue, Reynella the accused moved to … Scottsglade Road, Christie Downs where she resided until her arrest on 26 February 2009.
·    Giuseppe Daniele did not kill or injure Ms McGlynn.
·    Giuseppe Daniele did not attend at the accused’s home on Wednesday 3 December 2008.
·    The accused owned a white Kia bearing registration number WDN 870.
·    DNA from the boot kick panel of that vehicle was retrieved. The DNA was consistent with the DNA profile of Ms McGlynn.
·    On Christmas Eve 2008 the accused told Inara Dombrovska amongst other things that:
o   she had been watching Ms McGlynn for quite a while;
o   she went to Ms McGlynn’s house at a time when Ms McGlynn was at McDonalds;
o   she made her unconscious and searched her house;
o   she went back home and returned later in the evening;
o   she wrapped the body of Ms McGlynn in plastic and in sheets and took her somewhere south;
o   the police definitely would not find Ms McGlynn.
·    The accused told Agnese Dombrovska amongst other things that:
o   the accused was the last person to see Ms McGlynn alive;
o   DNA cannot go through plastic or sheets;
o   DNA is only 95 per cent accurate and what would they have to compare it with.
[Footnotes omitted]
On these findings the trial Judge concluded, beyond reasonable doubt, as follows at [136]:
·    The accused had ample opportunity to access Ms McGlynn’s house at … Somerfield Avenue on 3 and 4 December 2008.
·    The accused was the person who packed up the possessions of Ms McGlynn and put them in bags sometime between 3 December and 10 December 2008.
·    The pusher is one of the pushers formerly kept at Inara Dombrovska’s home at … Somerfield Avenue, Reynella.
·    The DNA found on that pusher is DNA from Ms McGlynn.
·    The accused had access to the pusher, however I cannot say and it is not necessary to find, exactly when she took possession of the pusher.
·    The pusher was used to transport at least some of the remains of Ms McGlynn to the creek where they were later located by police on 23 and 25 February 2009.
·    The DNA found on the boot kick panel of the accused’s car is DNA from Ms McGlynn.
·    The accused’s vehicle was used to convey the body of Ms McGlynn at some stage.
·    The accused is the person responsible for depositing the remains of Ms McGlynn (described as finds 1 and 2 by the police) in Christies Creek.
·    The accused is the person who dismembered the body of Ms McGlynn and disposed of the remains.
·    The accused is the person who killed Ms McGlynn.
[Footnotes omitted]
Grounds of Appeal
Before setting out the grounds of appeal, it is important to note that Mr Boucaut SC, counsel for the appellant, conceded that it could be concluded from the evidence that the appellant had unlawfully killed Ms McGlynn. The only remaining question was whether the killing by the appellant was intentional.
The main ground of appeal was framed as follows:
… [E]ven if it were open to the learned Trial Justice to find beyond reasonable doubt that the Appellant killed Ms McGlynn …, the evidence was not capable of proving beyond reasonable doubt that the killing was murder, by excluding the reasonable possibility of accident or manslaughter. …
The appellant added a further ground of appeal some four months after the appeal was lodged. The amended ground was:
The learned trial Judge misdirected herself as to the appropriate standard of proof in her consideration of the issue of motive as evidence of murderous intent.
The key findings of the Judge in relation to both grounds of appeal are found in paragraphs [139] to [141] inclusive. I set them out hereunder:
[139]This is one of those cases where the totality of the circumstantial evidence is as powerful as any direct evidence could ever be. Moreover the lack of any forensic evidence found in the house at … Somerfield Avenue to suggest that the accused either attacked and/or killed Ms McGlynn there does not militate against the conclusion that the accused was the killer. Indeed, even on the accused’s own account, she was there in the house on the night of 3 December 2008 and she helped drag a bleeding and dying Ms McGlynn to the back patio area of that house. The totality of the evidence which I accept satisfies me beyond reasonable doubt that the accused had the capacity and the means to dismember the body of Ms McGlynn, place it in plastic bags and transport it to the creek near her home. I cannot make any specific finding as to when she did these things but I am satisfied that she had ample time within which to carry out these tasks secretly. It follows logically and inevitably that the person who dismembered the deceased’s body and concealed it in the creek was responsible for the killing. The combined force of the circumstances in this matter which I find proved beyond reasonable doubt points overwhelmingly to the accused as the killer of Ms McGlynn.
[140]This is not a case of an assault which went too far or a robbery interrupted which had unintended consequences. The totality of the evidence points to the conclusion and I so conclude that the accused wanted Ms McGlynn’s house and she wanted her money. The only way to sell or rent the house and take the property of Ms McGlynn was to ensure that she never came back to stymie the accused’s plans. I have asked myself the question whether there is any other explanation for the evidence which I have accepted which points to a conclusion other than that the accused is the killer of Ms McGlynn. Mr Daniele is most certainly not the killer. It was not suggested nor could it be that Ejaz Ahmed had anything to do with the death of Ms McGlynn and I specifically reject that as a reasonable possibility. There is no other reasonable explanation for the evidence I accept in this case other than that the accused killed Ms McGlynn.
[141]I have directed my mind specifically to the possibility that the accused might have only intended to stun the victim. That is the language actually used at one stage by Inara Dombrovska to describe what the accused told her she did to the victim. An intention merely to stun the victim would not make out the crime of murder. However, for the reasons which I have given, the evidence does not point to this being a bungled robbery which had unintended consequences or to an assault without the necessary intent or to an unfortunate accident. It points to a woman who planned to steal from Ms McGlynn and as part of the plan to steal decided to and did kill Ms McGlynn. Having done so she then needed to hide the body and conceal any evidence which might connect her with the crime. She had ample opportunity to do so. Moreover I am satisfied that the accused knew enough about DNA and forensic evidence to carefully attempt to conceal her tracks.
Arguments on Appeal
Mr Boucaut contended that the facts proved beyond reasonable doubt could not sustain a finding that the appellant murdered Ms McGlynn as opposed to killing her in circumstances which would amount to accident or manslaughter. He submitted that this was all the more so because no cause of death had been established.
Mr Boucaut submitted that the Judge’s findings all related to post-offence conduct and he instanced possession of Ms McGlynn’s property, accessing her bank accounts and the forgery of a power of attorney. That is not strictly correct because the admissions by the appellant to her mother contain evidence of pre-offence intentions. In relation to those statements Mr Boucaut argued that the evidence was equivocal. He referred to the appellant’s evidence that the comments she made to her mother were made in a sarcastic way. As I have indicated, the Judge accepted the version of the conversation given by the appellant’s mother: [104].
Mr Boucaut argued that the evidence bearing on the issue of whether the unlawful killing of Ms McGlynn was murder or manslaughter was “intractably neutral”, and he pointed to the difficulties arising when dealing with this type of evidence. He referred to Butler v The Queen [2011] VCSA 417 in which it was held that the combination of lies and other post-offence conduct by the accused was not “intractably neutral” on the issue of murder or manslaughter. Mr Boucaut argued that the present case was weaker because her Honour did not use the admitted lies by the appellant to the police as evidence of her guilt. If in Butler the violent disposal of the body coupled with the lies and then the later appropriation of property could only lead to an inference of murderous intent on the basis of probability, as the majority found, then absent a finding of lies demonstrating a consciousness of guilt, it must follow that the present conviction must also be quashed.
In my view that is not a helpful way to argue the matter. Butler was a decision on its own facts. It is not appropriate to reason that because the post-offence lies were critical in one case, their absence in another should lead to an acquittal. I do not find Mr Boucaut’s argument on this point persuasive.
Mr Boucaut also relied on R v Dam Chi (1986) 23 A Crim R 38 in which the appellant’s post-offence conduct in dealing with the deceased’s property was held to be not a sufficient basis for a conclusion that the death was felonious. Mr Boucaut submitted that the facts of that case were similar to those in this matter. In Dam Chi the deceased and the appellant were in a relationship, the deceased disappeared and later the body was found in a shallow grave. No cause of death was established. In the time between the disappearance of the deceased and the recovery of the body, the appellant had taken certain action in acquiring a property belonging to the deceased. The appellant had given a series of conflicting versions as to the deceased’s whereabouts. The appellant had access to the deceased’s bank account and forged a will by the deceased in favour of her son.
On appeal the majority quashed the conviction and entered a verdict of acquittal on the basis that no conclusions could be drawn from the post-offence conduct of the appellant. There were differences, however, between Dam Chi and this case. In Dam Chi there was no evidence that the accused had been involved in the disposal of the body. In any event, for the reasons given relevant to Butler’s case it is difficult to draw conclusions based on a comparison of the facts in two cases. They are all decisions on their own facts.
Mr Boucaut argued that, given the appellant’s evidence was rejected “pretty well entirely”, her Honour was left with items of circumstantial evidence and the violent disposal of Ms McGlynn’s body along with the attempted acquisition of the property to prove murderous intent. He contended that a manslaughter theory was equally open on that evidence.
Although Mr Boucaut conceded that the defence case at trial was that the appellant had not been involved at all in the killing of Ms McGlynn, he contended that manslaughter had also been raised as an issue. He submitted that it was certainly not an “all or nothing” case. Mr Boucaut referred to counsel’s written submissions at the trial. The Court was told that the submissions provided to the trial Judge put a secondary position, namely that even if the Judge was to conclude that the accused was responsible for the death of the deceased, there was no evidence capable of elevating that unlawful killing to murder. He put that the Judge gave insufficient reasons for the finding of murder. He referred to [140] and [141] of the reasons. He submitted that a finding that the appellant was motivated by a desire for personal gain begged the question as to whether or not she had the necessary intention to prove murder, as opposed to manslaughter.
The second ground of appeal raised the correctness of the way in which the Judge dealt with the question of motive. The Judge found that the existence of a motive to acquire the deceased’s home and money was an item of circumstantial evidence in the chain of proof that it was the appellant who murdered Ms McGlynn. Motive was also an important consideration in the Judge reaching her final conclusion. Mr Boucaut argued that the conclusion of motive was an indispensable link in the chain of reasoning to prove murderous intent. He submitted that the Judge erred in the way in which she dealt with motive.
He challenged her Honour’s language when discussing motive. Particularly paragraphs [140] and [141] of her Honours findings:
[140]This is not a case of an assault which went too far or a robbery interrupted which had unintended consequences. The totality of the evidence points to the conclusion and I so conclude that the accused wanted Ms McGlynn’s house and she wanted her money. The only way to sell or rent the house and take the property of Ms McGlynn was to ensure that she never came back to stymie the accused’s plans. …
[141]… However, for the reasons which I have given, the evidence does not point to this being a bungled robbery which had unintended consequences or to an assault without the necessary intent or to an unfortunate accident. It points to a woman who planned to steal from Ms McGlynn and as part of the plan to steal decided to and did kill Ms McGlynn. …
[My underlining]
Mr Boucaut submitted that the use of the words “points to” and “does not point to” were inconsistent with the application of the criminal standard. He said that this language showed that the Judge moved from a conclusion that the appellant demonstrated a motive of financial gain to a conclusion that the killing was murder without applying the criminal standard of proof.
Mr Boucaut acknowledged that at [140] her Honour referred to the totality of the evidence in forming a conclusion but he argued that there she was dealing with identity rather than with intention to kill.
Consideration
In my view there are a number of factors that stand out in this case as demonstrating an intention by the appellant to kill Ms McGlynn.
In examination-in-chief, Mrs Dombrovska said the following at page 111 of the transcript:
A.In that conversation Angelika said to me that she had been watching Mrs McGlynn for quite a while and she went to Mrs McGlynn's house at the time when Mrs McGlynn was at McDonald’s. …
This was dealt with by the Judge in the passage I set out earlier in these reasons at [53].
The fact that the appellant told her mother that she had been watching Ms McGlynn for quite a while of itself does not show that she intended to kill her. But the fact that the appellant entered through the victim’s roof, waited for her to get back from McDonald’s and then, in her words, “stunned her” shows that she intended to do more than just steal from her. If she had been watching her for quite a while, the appellant would have known how long Ms McGlynn usually stayed at McDonald’s. She could have entered and exited the house before the victim returned, if her intention was only to steal from Ms McGlynn. She did not do this. She must have known that the only way to benefit from the sale of Ms McGlynn’s house was to kill her and to conceal her death. It is also of significance that the appellant never suggested to her mother during the conversation on Christmas Eve, that this was an unintended or accidental killing. On the Judge’s findings, the appellant was responsible for Ms McGlynn’s death. As I have said, that finding is not in dispute.
The appellant’s means of entry by removing Ms McGlynn’s roofs tiles indicates her intention that her victim should be unaware of her presence in the house. If the appellant’s intention was only to steal from Ms McGlynn, she could easily have broken in through the back of the house, as the police did, or broken through the front door. However, she chose a means by which Ms McGlynn would not know immediately upon entering the house that an intruder could be in her home. The appellant’s actions show a clear intention to surprise Ms McGlynn and a sinister plan involving the acquisition of her assets. Such a plan could only succeed if Ms McGlynn were murdered.
The illegally obtained Justice of the Peace stamp and the forged power of attorney evidence the appellant’s motive of wanting to transfer the property into her name and later selling it. This could not be done if Ms McGlynn was still alive. The forged power of attorney is dated 11 November 2008. Ms McGlynn was killed on 3 December 2008. The appellant said in her evidence that she prepared the forged power of attorney on 8 December 2008, the day before she attended the ANZ bank. The Judge did not make any finding on this aspect. The forged power of attorney suggests that this was a well thought-out, planned attack on Ms McGlynn, and not an opportunistic robbery. The appellant had done her research on Ms McGlynn and knew she would be an easy target given her age and fragility.

The evidence showed that the appellant, in the lead up to Ms McGlynn’s death, did multiple electronic searches in October and November 2008 in relation to selling and transferring property. Evidence revealed that similar searches were undertaken on the night of 3 December 2008. They are inconsistent with an attempt to benefit from a situation of which the appellant became aware only after Mr Daniele brought her to Ms McGlynn’s house on 3 December 2008. In my view the evidence of preparation is a strong indicator of a premeditated intention to kill when considered against the background that to achieve her purpose in obtaining the house, Ms McGlynn had to be dead.
The above factors in combination are in my view significant matters going to prove that the appellant murdered Ms McGlynn.
There is no doubt that post-offence conduct of itself can, in some cases, establish the guilt of the offender. In this matter Mr Boucaut pointed to the post-offence conduct including attempts to gain possession of the deceased’s property, accessing her bank accounts and the forgery of the power of attorney as evidence which he submitted is “intractably neutral”.
In my view the post-offence conduct in this matter was important evidence in the prosecution case against the appellant for murder. It was not “intractably neutral”. On the contrary, the appellant’s conduct following the death of the deceased was extraordinary. The topics suggested by Mr Boucaut regarding the bank accounts and the forgery of the power of attorney are just two of a wide range of matters covered by the Judge in her reasons.
In my view the Judge properly directed herself in relation to the use which can be made of post offence conduct. The trial Judge properly approached the circumstantial evidence and properly considered all aspects of that evidence in coming to her conclusions. She did not misdirect herself on the way in which any of the circumstantial evidence could be used.
In relation to post-offence conduct the findings of fact made by the Judge were open to her. At paragraph [135] of the judgment (see paragraph [64] of these reasons) her Honour set out some of the salient facts which she found beyond reasonable doubt. These facts considered as a whole strongly support an intentional killing. In this matter, the post-offence conduct, when combined with the pre-offence conduct discussed above, the admissions by the accused and the forensic evidence of the deceased’s DNA on the pusher and in the appellant’s car, support beyond reasonable doubt a murderous intent.
There are compelling instances where the evidence is not “intractably neutral” and support a finding of an intentional killing. From [135] of her Honour’s reasons I would emphasise the following:
·Partial remains of Ms McGlynn were found by police in the Christies Creek area on 23 and 25 February 2009 respectively.
·On 5 December 2008 the accused telephoned the Salvation Army store call centre and used the name of Isabella McGlynn to arrange a pickup date for a collection of eight chairs, one sofa and one dining table from … Somerfield Avenue, Reynella for 23 December 2008.
·On 5 December 2008 the accused accessed websites on her home computer related to Tony Smallwood, Salvation Army, The Smith Family, … Somerfield Avenue, Reynella and the Land Titles Office websites.
I mention the Salvation Army call because the appellant contended all through the trial that she did not kill Ms McGlynn. She only wanted to take advantage of Ms McGlynn by gaining financially. If this was so, it seems strange that the appellant rang the Salvation Army intending to donate Ms McGlynn’s property. This appears to have been part of the appellant’s plan to ready the house for sale.
·When she went to the ANZ bank on Tuesday 9 December 2008 the accused was in possession of Ms McGlynn’s ANZ debit card and a forged document purporting to give her power of attorney from Ms McGlynn.
·On 25 February 2009 a pusher was found in a bush adjacent to the bikeway on the eastern side of the Expressway in the Christies Creek area.
·On the base of the seat of that pusher DNA was extracted from a blood stain. That DNA is consistent with the DNA profile of Ms McGlynn.
·DNA from the boot kick panel of that vehicle was retrieved. The DNA was consistent with the DNA profile of Ms McGlynn.
·On Christmas Eve 2008 the accused told Inara Dombrovska amongst other things that:
o   she had been watching Ms McGlynn for quite a while.
o   she went to Ms McGlynn’s house at a time when Ms McGlynn was at McDonalds;
o   she went back home and returned later in the evening;
o   she wrapped the body of Ms McGlynn in plastic and in sheets and took her somewhere south;
o   the police definitely would not find Ms McGlynn.
·The accused told Agnese Dombrovska amongst other things that:
o   the accused was the last person to see Ms McGlynn alive;
o   DNA cannot go through plastic or sheets;
o   DNA is only 95 per cent accurate and what would they have to compare it with.
It is my opinion that her Honour’s findings that I have mentioned above, in relation to post-offence conduct, point very strongly to an intention to kill. It is not evidence which is neutral.
It was important in this case that the defence submissions accepted that the dismembering and disposal of the body could be attributed to the killer. Once the finding was made that it was the appellant who dismembered and disposed of the body, the further finding that she was the killer was inevitable. That behaviour is inconsistent with an accidental or unintentional killing. Such extreme measures of dismembering and the careful disposal of parts of the body are not consistent with an accidental or unintentional killing.
I agree with the Judge’s statement that “this is one of those cases where the totality of the circumstantial evidence is as powerful as any direct evidence could ever be”.
As to ground 2 I do not agree that the Judge erred in applying the standard of proof. In [140] it is clear from the whole paragraph that the Judge was dealing with two aspects, that is, the elimination of other persons as the potential killer of Ms McGlynn as well as the totality of the evidence showing that the financial motive could not be accomplished unless the appellant disposed of the deceased.
In my view motive was not, and did not need to be, an indispensible link in the Judge’s reasoning. It was part - albeit an important part - of the circumstantial case, which as a whole satisfied her Honour beyond reasonable doubt of the appellant’s guilt of murder but it was not indispensable. Indeed, in my opinion, there was no single fact in issue that amounted to an indispensable or intermediate fact in the proof of the appellant’s guilt. In that context there is no inadequacy in the use of the expression “points to” which was used by the Judge.
Conclusion
In summary, the way in which the defence case was run at trial, the strong forensic evidence, the evidence of pre-offence planning and the strong circumstantial evidence from the appellant’s post-offence conduct all lead, in my view, to the conclusion that the appellant intended to kill Ms McGlynn.
The appeal against conviction should be dismissed.
Sentence
The details of this horrific murder have been covered earlier. It was premeditated and brutal.
The appellant was sentenced to life imprisonment with a non-parole period of 32 years, backdated to the day on which the appellant was taken into custody, 26 February 2009.
Her Honour’s sentencing remarks describe the crime to be “in the worst category”. It is difficult to disagree with this assessment.
At page 150 of the Appeal Book, her Honour says:
… the circumstances in which you committed this crime, including the stalking of Ms McGlynn, entering her home by stealth, killing a defenceless 83-year-old women in the privacy of her own home, dismembering her body and then dumping it in various places, all of which appears to have been motivated by nothing more than sheer greed, place your crime in the worst category.
And at page 151 says:
… nothing more than the actions of a greedy, narcissistic and deceitful woman completely devoid of any moral insight or empathy. …
Mr Boucaut argued that her Honour placed excessive weight on the manner in which the appellant disposed of the body.
In my view relevant matters under s 10 of the Criminal Law (Sentencing) Act 1988 (SA) are the circumstances in which the appellant dismembered and disposed of the body. She cut off Ms McGlynn’s head and hands, wrapped the body in plastic and sheets and dumped her in bushes.
The appellant has still not told police the location of Ms McGlynn’s head and hands, and she has shown no remorse or contrition for this horrific murder.
At page 151, her Honour remarks:
You have not even had the decency to give some small solace to the family and friends of Ms McGlynn by revealing how and where you disposed of the head and hands of this most unfortunate woman.
Mr Pallaras submitted that, this offending was at the highest end of the scale of seriousness for murder. There were egregious features which called for a lengthy non-parole period.
Mr Boucaut contended that, given the appellant’s age and no prior violent criminal background, the non-parole period was manifestly excessive. The appellant is 37 years of age and has two relatively young children and has no past violent history.
I disagree with this submission. In my view those aspects play a limited part in the relevant sentencing considerations, especially given the severity of the crime and the lack of remorse shown.
There has been no error in the sentencing process. The Judge has not taken into account any irrelevant matter and has in my opinion dealt with all of the relevant sentencing considerations.
A 32 year non-parole period is within the range available to the sentencing Judge. It has not been shown to be manifestly excessive.
I would dismiss the appeal against sentence.
Summary
For the reasons given above, I would dismiss the appeals against conviction and sentence.
WHITE J. I agree that the appeals against conviction and sentence should be dismissed. I agree with the reasons of Anderson J.

[2012] SASCFC 52

4 May 2012

Key Legal Topics

Areas of Law

Criminal Law

Evidence

Legal Concepts

Charge

Intention

Sentencing

Appeal