R v Halcrow

Case [2022] QSCPR 11

SUPREME COURT OF QUEENSLAND

CITATION:

R v Halcrow [2022] QSCPR 11

PARTIES:

THE QUEEN

(respondent)

v
LISA ROSE HALCROW

(applicant)

FILE NO/S:

Indictment No 154 of 2021

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Toowoomba

DELIVERED ON:

25 August 2022

DELIVERED AT:

Brisbane

HEARING DATE:

27 May 2022

JUDGE:

Burns J

ORDER:

THE ORDER OF THE COURT IS THAT:

1.          Counts 1 and 2 shall be tried separately.

2.          No evidence admissible in proof of count 1 shall be led by the Crown at the trial of count 2.

3.          The evidence from the witnesses, Marion Schmidt and Michael Turner, of statements made to them by the applicant regarding her spiritual beliefs (including a belief in reincarnation) and any evidence regarding the complaint made by the applicant to police in New South Wales in 1996 is inadmissible and shall not be led by the Crown at the trial of either count.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – INFORMATION, INDICTMENT OR PRESENTMENT – JOINDER – OF COUNTS – BY STATUTE – SAME FACTS OR SERIES OF OFFENCES OF SAME OR SIMILAR CHARACTER – where the applicant is charged on indictment with one count of grievous bodily harm and one count of murder – where the count of grievous bodily harm is alleged to have been committed one year prior to the count of murder – where the deceased was a child in the care of the applicant – whether the counts on the indictment are properly joined pursuant to s 567 of the Criminal Code (Qld) – whether the counts represent a series of offences of the same or similar character – whether there exists a sufficient nexus between the counts – whether the evidence in support of the count of grievous bodily harm is admissible as circumstantial evidence of propensity on the trial of the count of murder – whether the evidence in support of the count of grievous bodily harm is admissible as relationship evidence on the trial of the count of murder – whether the counts on indictment are properly joined pursuant to s 567 of the Criminal Code (Qld) – whether it should be ordered in the exercise of the court’s discretion under s 597A of the Criminal Code (Qld) that the counts be tried separately – whether the evidence in support of the count of grievous bodily harm should be excluded from the trial of the count of murder pursuant to s 130 of the Evidence Act 1977 Qld)

CRIMINAL LAW – EVIDENCE – RELEVANCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – where the applicant is charged on indictment with one count of grievous bodily harm and one count of murder – where the deceased was a child in the care of the applicant – where the Crown seeks to elicit evidence of statements made by the applicant regarding her belief that the deceased child was the reincarnation of the applicant’s late father – where there is other evidence that the…

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R v Halcrow [2022] QSCPR 11
Case
[2022] QSCPR 11
Decision Date

CaseChat Overview and Summary

The applicant in R v Halcrow was charged with grievous bodily harm and murder. The court was required to determine whether the counts on the indictment were properly joined pursuant to s 567 of the Criminal Code (Qld). The court also needed to consider whether the evidence in support of the grievous bodily harm count was admissible as circumstantial evidence of propensity or relationship evidence on the trial of the murder count. Additionally, the court had to decide whether the counts on indictment should be tried separately under s 597A of the Criminal Code (Qld) and whether the evidence in support of the grievous bodily harm count should be excluded from the trial of the murder count pursuant to s 130 of the Evidence Act 1977 Qld.

The court found that the counts on the indictment were not properly joined pursuant to s 567 of the Criminal Code (Qld). It was held that the counts did not represent a series of offences of the same or similar character, nor did they have a sufficient nexus. The court also ruled that the evidence in support of the grievous bodily harm count was inadmissible as circumstantial evidence of propensity or relationship evidence on the trial of the murder count. The court exercised its discretion under s 597A of the Criminal Code (Qld) to order that the counts be tried separately. Finally, the court ruled that the evidence in support of the grievous bodily harm count should be excluded from the trial of the murder count pursuant to s 130 of the Evidence Act 1977 Qld.

The court ordered that the grievous bodily harm and murder counts be tried separately, that no evidence admissible in proof of the grievous bodily harm count be led by the Crown at the trial of the murder count, and that the evidence from the witnesses, Marion Schmidt and Michael Turner, of statements made to them by the applicant regarding her spiritual beliefs (including a belief in reincarnation) and any evidence regarding the complaint made by the applicant to police in New South Wales in 1996 be inadmissible and not led by the Crown at the trial of either count.

Orders

Orders of the court

THE ORDER OF THE COURT IS THAT:

1. Counts 1 and 2 shall be tried separately.

2. No evidence admissible in proof of count 1 shall be led by the Crown at the trial of count 2.

3. The evidence from the witnesses, Marion Schmidt and Michael Turner, of statements made to them by the applicant regarding her spiritual beliefs (including a belief in reincarnation) and any evidence regarding the complaint made by the applicant to police in New South Wales in 1996 is inadmissible and shall not be led by the Crown at the trial of either count.

Background

Background to the litigation

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Evidence

Evidence Before The Court

For completeness, although I will order the counts to be severed and rule that the evidence in support of count 1 not be led by the Crown at the trial of count 2, were it to be suggested by the defence at the trial that the conduct alleged by the Crown to constitute count 2 occurred “out of the blue”, to take one example, it would be open to the Crown to make application to lead the evidence. That, however, will be a matter for the trial judge to decide.Should the Crown be permitted to lead the challenged evidence? Two witnesses – Marion Schmidt and Michael Turner – provided statements to the police in which, amongst other things, they record the content of past discussions with the applicant regarding her spiritual beliefs. Ms Schmidt worked at the same aged care facility in Warwick as did the applicant and Ms Ballard. Mr Turner is, as previously stated,[34] Ms Ballard’s brother. Both were cross-examined at the committal hearing.[34]At [12]. Each of the witnesses is a believer in reincarnation and each recalled discussions with the applicant in which she expressed similar beliefs but, more specifically, her belief that the child was the reincarnation of her deceased father. There is evidence also in the hands of the Crown to the effect that the applicant complained to police at Woy Woy in New South Wales in 1996 that she was sexually abused by her father on more than one occasion. A written statement in support of this complaint was signed by the applicant. According to Ms Schmidt, the applicant referred to her father as an “absolute bastard” and said she “felt” the child had been “sent to her as the spirit” of her father “to beg forgiveness”, something she would never give. Mr Turner recalled a similar (although more abbreviated) conversation with the applicant. The Crown argues that all of this evidence should be left to the jury to support an inference that the applicant had a motive to harm the child, that is to say, to exact retribution from her father. It is not suggested that the evidence has any other relevance and, unless the drawing of such an inference is reasonably open on that evidence, it cannot be admissible.[35] [35]HML v The Queen (2008) 235 CLR 334, [5]. I am not at all persuaded that the inference contended by the Crown is reasonably open. To the contrary, I think it is rank speculation. No witness in the case (including Ms Schmidt and Mr Turner) speaks of any animosity on the part of the applicant towards the child, let alone any suggestion that the applicant might have wanted to harm the child because she believed it was a manifestation of her deceased father. In fact, there is evidence from Mr Turner to the opposite effect. He recalled the applicant saying to him after the child died that she “felt her father had left her again”. That is hardly consistent with any desire on the applicant’s part to harm her father through the child. The challenged evidence is inadmissible and shall not be led by the Crown at either trial.Orders

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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