R v Hinds

[1992] QCA 310

COURT OF APPEAL [1992] QCA 310

MACROSSAN CJ
THOMAS J

AMBROSE J

CA No 180 of 1992

THE QUEEN

v.

KARL KALEVI HINDS	Appellant
BRISBANE ..DATE 28/08/92 JUDGMENT

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210892 D.1
THE CHIEF JUSTICE: The appellant, on 28 May 1992, was
convicted of the murder of his wife. On the Crown case the

murder was said to have taken place on or about 18 June, 1989.

The Crown case was a circumstantial one but the jury by its

verdict at the conclusion of the trial found it proved.

The evidence established that the woman, said to be deceased, had disappeared by a date in June 1989, more precisely on the 19th. Amongst the circumstantial evidence which the Crown was able to adduce were these matters. The matrimonial bed from the bedroom in which the appellant and his wife had been living was disposed of by the appellant virtually immediately at the time that his wife disappeared. The appellant gave what was proved to be a false account in respect of the disappearance of the matrimonial bed. It was stated by him that he sold it but he really was unable to establish that the sale which he claimed had occurred. He said he sold it during the weekend that his wife went away and he sold it as a result of a radio program broadcast advertising opportunities for sale and purchase of items. His claim was shown to be false because the radio program that he says enabled him to make the contact and the sale was not in fact broadcast.

The Crown case showed that at some later time, as a result of information received, it was discovered that the bedroom which

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had been occupied by the appellant and his wife had blood
stains around the walls and on certain of the furniture.
These apparent stains were scientifically examined and the
Crown expert evidence established that they were indeed blood.
The evidence established, the Crown expert said, that the
blood stains had their origin in a human being or a higher
primate. There was no basis on which it could reasonably have
been thought that a higher primate other than a human was
involved. So the jury could safely conclude that the blood had
a human source and this blood the Crown expert evidence also
showed was not from the accused not being of his blood type.
There were DNA tests carried out as well as certain other
tests.

Defence expert evidence made some challenge to the evidence of the Crown's experts and the conclusion of the Crown's experts was subject to challenge but there was no alternative hypothesis of a positive kind put forward by the defence experts. There was then, and counsel appearing for the appellant before us conceded it, evidence on which the jury could conclude that the blood stains in question had a human source and that they did not come from the accused. The accused had endeavoured by way of explaining the presence of the blood around the walls to advance the suggestion that they came from him because he suffered nose bleeds and he sneezed in the room. Acceptance of this theory would involve accepting

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that the results of his blood-bearing sneezes were not cleaned
from the relevant parts of the walls and more importantly it
has to confront the scientific evidence which the Crown led
that the blood did not come from the accused.

This then shows that the Crown was able to produce a circumstantial case, and I am outlining only those aspects of it which are of significance for the argument addressed to us, rather than its totality. The Crown case established the basis for a conclusion, that there had been violent actions in the room, that blood may have come from those violent actions and that the matrimonial bed went missing at the time of the wife’s disappearance and a false explanation was given by the appellant in respect of the matrimonial bed.

Now, the grounds which are taken are quite narrow and for that reason there is no need in expressing these reasons to set out wider aspects of the evidence. There are only two grounds of appeal and the first one is that the trial Judge incorrectly admitted evidence in relation to the finding of blood in a bedroom previously occupied by the accused and his wife. Counsel for the appellant found himself in a position where it was difficult to pursue that ground vigorously on the hearing of the appeal. We were referred to the ruling which His Honour made in admitted the evidence. Apparently it was suggested to His Honour that notwithstanding the probative force of this

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evidence in the exercise of his discretion he should exclude
it. His Honour decided that the case was a circumstantial one
and that it was proper to admit the evidence. We see his
ruling in the record. He decided that the case being
essentially a circumstantial one, the issue of what followed
from the blood stains and the Crown's evidence in relation to
it, would be something to be determined at an appropriate
stage of the trial.

He correctly decided, in my view, that the evidence in respect of the blood stains provided one thread in the rope of circumstantial evidence and that the jury at the end of the day would have to decide whether they were satisfied beyond reasonable doubt that the blood was related to the death of the accused's wife. The Crown had to prove death. The wife had not been heard from again in circumstances which the Crown went into from the time when she first went missing.

The second ground of appeal is that the trial Judge
incorrectly directed the jury that in order to act on the
evidence of Dr Van Daal (she was an expert witness who tested
the blood and gave evidence of the DNA tests), continuing the
chain of reasoning being urged upon them by the Crown they
had to be satisfied beyond reasonable doubt that the substance
was DNA and was not the type of the accused. We see the

ruling that His Honour made in the course of an application to

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him for redirections and we conveniently see recorded at that
point what His Honour said by way of direction to the jury.

He said in the particular circumstances of this case:

"I direct you, before you use the evidence of Dr Van
Daal as part of the chain of reasoning that I have
referred to or referred you to, you should be
satisfied beyond reasonable doubt that the substance
found by her on the wall was DNA and that it was not
of the accused's type."

Defence counsel objected to this direction saying that to express the proposition that way did not alter his, that is the defence counsel's submission, that the direction should be that before they could act upon it, they would have to be satisfied beyond reasonable doubt or by the Shepherd formula that it was the alleged victim's type. That submission seems based on the proposition that if the jury were satisfied that it is not the accused's type the Crown at that point still had not excluded that it was a type belonging to someone else other than the victim.

I detect no error in His Honour's direction. His Honour does not overstate the effect of the evidence in relation to the blood stains. In fact, he directs the jury in effect, that they should not use it at all unless the conditions which he is expressing have been satisfied.

The proposition which defence counsel urged, in my view, is incorrect and it retreats to theories which used to be

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advanced more frequently in the past. It seems to involve as
was suggested in the course of argument before us, a retreat
to an invitation to fence off particular parts of the evidence
and consider them separately and not use them at all unless
every relevant conclusion can be drawn from the evidence
beyond reasonable doubt, that is considering the evidence in
isolation. In a recent decision of this Court in The Queen v.
Jones CA 347 of 1991, it was said that there is no rule in
circumstantial evidence cases that no inference of guilt can
properly be drawn other than from facts which have been proved
beyond reasonable doubt and also that where the evidence
consists of strands in a cable rather than links in a chain it
will not be appropriate to give the direction that the items
of circumstantial evidence must be individually proved beyond
reasonable doubt before they can be used at all.

Accordingly then, I would conclude that there was no error whatsoever in the Judge's direction in respect of the evidence of Dr Van Daal and that he gave the jury an appropriate warning and indeed a cautious direction in respect of it. These being the only two grounds argued on the appeal, I think it must be concluded that the appeal should be dismissed, there being no persuasive substance in the two grounds. I would then dismiss the appeal against conviction. I notice that the appeal also, on its face, involves an application for leave to appeal against sentence. That was not argued as of

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course, it could not be, in a case such as this but I would
order that it also formally be refused.

THOMAS J: I agree. To the facts which have been stated by the Chief Justice I would add the evidence concerning the extent and location of the droplets of blood throughout the bedroom. Multiple areas of that room contained spray patterns consistent with the occurrence of serious violence. It is enough to mention that blood was found on the floor, the southern wall (where there were 63 droplets), the northern and western walls, and the wardrobe.

In my view, when all the components of this case are taken into account, there is a strong and adequate circumstantial case which satisfactorily excludes any hypothesis consistent with innocence. I would therefore dismiss the appeal.

AMBROSE J: Yes, I agree and have nothing to add.

THE CHIEF JUSTICE: The orders will then be as I have indicated.

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