R v Hornby

[1992] QCA 381

IN THE COURT OF APPEAL [1992] QCA 381

SUPREME COURT OF QUEENSLAND

C.A. No. 140 of 1992

Before the Court of Appeal

Mr. Justice McPherson
Mr. Justice Pincus

Mr. Justice Lee

T H E Q U E E N

v.

JEFFREY JOHN HORNBY

(Appellant)

JUDGMENT - McPHERSON J.A.

Delivered the Ninth day of November 1992

MINUTE OF ORDER

Appeal allowed. Conviction and verdict set aside. In lieu enter verdict and judgment of acquittal.

CATCHWORDS

CRIMINAL LAW - VERDICTS - UNSAFE AND UNSATISFACTORY - Appellant convicted of murder - whether guilty verdict consistent only with adopting the most unfavourable view of each of the matters presented in evidence - Whether evidence insufficient to satisfy a reasonable jury of the accused's guilt beyond reasonable doubt.

Counsel:	S. Herbert, with him Lee, for the appellant M. Byrne, for the Crown
Solicitors:	Legal Aid Office for the appellant Director of Prosecutions for the Crown

Hearing date: 24 July 1992

JUDGMENT - McPHERSON J.A.
Delivered the Ninth day of November 1992

This is an appeal by Jeffrey Hornby against his conviction on a charge of murdering Laural Jacobson. She was an 18 year old college student, whose body was found in a canefield at Alberton not far from an unsealed road that leads to a boat ramp on the Logan River. It was found between 11.15 and 11.30 a.m. on Wednesday 22 November 1989, in long grass beside an area of burnt cane, by the cane farmer Mr. Albert Burow, who was then engaged in firing the cane. The body had been largely stripped of clothing but there were no signs of a sexual assault. The face was badly battered and broken, and there was a massive hinged fracture at the base of the rear of the skull. Brain injury was severe, and death would have ensued within a short period of time - "probably within the space of half an hour but possibly an hour". Face tissues gave indications of a period of survival described as "very brief", meaning "at least 15 minutes but could be 30".

These statements and conclusions are taken from the evidence of Dr. Rosemary Ashby, who first examined the body in the canefield at 3.00 to 3.30 p.m. on the afternoon of Wednesday 22 November 1989. She found full rigor mortis to be present suggesting that death had taken place at least nine hours before, but "more likely" twelve hours, and "it could be a longer post mortem interval". Acknowledging elsewhere in her evidence that the estimation was "very rough", Dr. Ashby said that death "could have been as recent as 3.00 a.m., but it could have been at an earlier time; in other words before midnight". Under cross- examination she reverted to "more likely the twelve hours", thus placing death at about 3.00 to 3.30 a.m. on Wednesday, following fatal blows inflicted perhaps as much as an hour earlier at, say, 2.00 a.m.

The time of death is important because at and after about 2.15 a.m. the appellant was in the company of others at a flat at 464 Wynnum Road, Morningside. It is reasonable to assume that he could not have driven the 46.5 km. distance from the scene at Alberton to Morningside in a time less than the 34 minutes that Senr. Constable Zaghini said it took him to travel the same route in the opposite direction. Even that does not allow time for the appellant to drive first from Alberton to the caravan park where he lived at Durack (40 km. in 34 minutes), in order to clean up and change his clothes, before driving a further 20 km. in 20 minutes from Durack to Morningside. Allowing an hour or so for travelling and other activities like these would mean that the victim's death, if the appellant was responsible for it, could not have taken place later than about 1.00 a.m. That would tend to place it in the early phase of the period identified by Dr. Ashby, and at a time which she had described as a possible rather than a probable time of death.

Fundamentally, the evidence presented against the appellant at his trial can be reduced to three elements. They are (1) opportunity, of which something has already been said; (2) incriminating statements; and (3) a suggested connection with the scene. As regards the first, the deceased Laural Jacobson shared a flat at 464 Wynnum Road, Morningside, with Tanya McDonald and a man named Allan Toal. Tanya was a friend of long standing, who was attending the same training college as Laural. Allan Toal was the brother of Agnes Toal, who for some years had been living with the appellant as his defacto wife latterly at the caravan park at Durack. The appellant, who was aged 38 at the time, was unemployed and is illiterate. His acquaintance with Laural was limited to occasions when he and Agnes visited the flat at Morningside where Laural, Tanya and Allan had been living since October 1989.

The evening of Tuesday 21 November 1989 produced a crisis in relations of the occupants of the flat. Allan, with Tanya's acquiescence, told Laural that, because she had not been meeting her share of the work and the rent, she would have to quit the flat. This greatly upset Laural, who began crying, and went to her room. She left the flat at about 7.30 p.m. but returned a little later after having, it seems, telephoned her mother in Gympie, to whom she spoke for some 10 or 15 minutes. Later in the evening she made another telephone call to Gympie in order to speak to a friend. The friend was out, but her mother Mrs. Cairncross took the call and spoke to Laural for some two to three minutes at some time between 9.10 and 9.30 p.m. That was the last that any of the witnesses heard from her alive.

The arrangement for that Tuesday evening was that Tanya,
Allan and Agnes would go out that night to meet some friends at
the Sheraton hotel. The appellant decided not to come with them.
He was suffering an outbreak of painful boils on the groin; in
addition he is a reformed alcoholic, who tried to avoid occasions
on which alcohol was being consumed. He brought Agnes to the
Morningside flat at about 7.15 p.m. travelling from Durack in a
white Valiant Charger which belonged to Agnes. It had a
distinctive blue line along the side, a pair of large white dice
hanging from the rear vision mirror above the dashboard, and a
silver roof aerial of sorts. The group left in the car at about
8.30 p.m. travelling to Ann Street (6.7 km. in 9 minutes), where
the other three were dropped off, leaving the appellant to drive
back to Durack where he intended watching television. They gave
him instructions about the route and saw him leave in the
direction of the ramp leading from Ann Street to Coronation
Drive. In fact, he later claimed to have become lost for a time
in the course of his return journey home.

Allan, Tanya and Agnes arrived back at the flat in a cab at about 1.55 a.m. On the kitchen table they saw two mugs with coffee and sugar but no milk. Tanya went to bed soon after arrival. At about 2.15 a.m. the appellant arrived bringing a canister of coffee and a carton of milk. The arrangement had been that Agnes would stay at the flat overnight; but the appellant explained he had been unable to sleep and had come back to collect her. According to Agnes, such conduct on his part was not uncommon. He related that, after returning to the caravan, his boils had burst; he then had a shower and changed his clothes before returning to Morningside to collect Agnes. After drinking some coffee they left the flat together at about 3.15 a.m. to travel back to Durack.

In a subsequent statement to police the appellant admitted having on arrival at Morningside on Tuesday evening been informed by Allan that Laural had been told she would have to quit the flat, but that he was not to mention the matter as she was so upset. The Crown case was that, realising that she would be alone and in need of comfort, the appellant had not gone home after dropping off the others in the city that night, but instead had secretly returned to the flat. Because she knew him, Laural let him in. He then persuaded her to go out with him in the car.

He took her down the road leading to the boat ramp at Alberton (with which he had some familiarity), and killed her there. Then he went back to the Durack caravan park, where he showered and changed, before returning to the flat at Morningside. The appellant had experience as an amateur boxer, and so, it was suggested, would know how to land punches without either skinning his knuckles or leaving tell-tale abrasions. That, it was also suggested, would explain the extensive injuries visible about the face of the deceased. It would not, of course, explain the fatal skull fracture, for which some "blunt instrument" would have been used. No such weapon was ever discovered or identified.

The appellant thus had - or so it was argued - the opportunity, and perhaps also the means, of killing Laural. Confirmation that he returned to the flat that evening came from Nancy Douglass, formerly Nancy McKinlay. At that time she was living in ground floor unit no. 1 in the flats at 464 Wynnum Road, Morningside, which she had been occupying for a month. On the evening of Tuesday 21 November 1989, she was entertaining guests when she noticed lights shining on the brick wall outside the lounge window of her flat. She went over and, looking through the window, saw the white Valiant Charger, which she had come to know because it called at the units with some degree of frequency. She shut the blinds, remarking as she did, "There's that Charger again". She and some of her visitors were able to fix the time of this incident by reference to the return of two of the guests who had gone out to buy some milk. They arrived back at 9.30 or 9.45 p.m. The incident involving the lights took place some five or ten minutes later.

The evidence of Nancy Douglass contradicted the appellant's story in one important particular. He told police that, after dropping off the others in Ann Street and temporarily losing his way, he had returned to the caravan park arriving back at about 9.30 p.m. In this respect, however, the appellant was supported by two other prosecution witnesses, both residents of Durack caravan park. Margaret Embleton recalled seeing lights on in the appellant's caravan at some time between 9.00 and 9.30 p.m. that evening. Her evidence about the date of this occasion is, however, not particularly convincing. The other witness was Thomas Buswell. He lived at a site next to the van occupied by the appellant and Agnes. He was familiar with their Valiant Charger which used to be parked between their two caravans and beside the one occupied by Buswell. He recalled hearing the Valiant Charger start up and leave on the evening of Tuesday 21 November, he said at about 7.30 p.m. He knew the sound of the car. He heard it come back between about 9.30 and 10.00 p.m. Again he identified the car by its sound. Buswell was able to fix the time because he is an avid television viewer and was watching "Minder" that evening, which is a favourite programme of his. There was independent evidence confirming that "Minder" was screened between 9.30 and 10.30 p.m. on that night. Then he changed over to channel 9 and fell asleep watching Graham Kennedy. He woke up again much later, early in the following morning, during the screening of "Helen of Troy", when he heard a car door slam. It was then some time after 3.30 a.m., which was when the appellant and Agnes arrived back at the caravan park.

Buswell's evidence of hearing the appellant's car return between 9.30 and 10.00 p.m. is contrary to the testimony of Nancy Douglass that she saw the Valiant Charger at the Morningside units at 9.45 p.m. or shortly thereafter. However, another aspect of this evidence was important in supporting the case against the appellant based on incriminating statements he was said to have made. According to Buswell, on the following night (which was Wednesday 22 November) the appellant and Agnes came over to his caravan to talk to him. It was between 11.30 p.m. and 12.30, when Buswell had been hoping to watch "Sunny Spoon", and he was not pleased about having to forego it. While the three of them drank coffee, Buswell was asked if he recalled the appellant coming back at 9.30 p.m. on the previous night. Buswell said he did; but, when asked to confirm that the appellant had invited him for a cup of coffee, his response was "No, you didn't come over at 9.30 because no one interrupted me while I was witching 'Minder'". The appellant's question was seized on by the prosecution as an attempt to set up a false alibi.

What was more important to the Crown case was Buswell's evidence that on the same occasion Agnes or the appellant had mentioned that one of their friends was missing - either missing or murdered, Buswell was not sure which. The name Laural was mentioned. Buswell described the appellant as being "nervous and shaking"; he was worried that the police might be coming over, and that he might be accused of something. The appellant had, it seems, one or more convictions for offences involving violence, so that he had reason to fear he would fall under suspicion. However, the particular significance of Buswell's testimony on this point is that Laural's identity as the murder victim was not made known by the police until about midday on Thursday 23 November. There is evidence that the discovery of a woman's body in the canefield had been made public by the evening of Wednesday 22 November. Tanya's mother mentioned it when she telephoned her daughter at about 7.30 p.m. on that day. It occurred to Tanya it might be Laural. She became upset and had to be reassured by Allan Toal. When Agnes testified at the trial, she was not asked for her version of the conversation with Buswell. Presumably this was because her evidence was that she and the appellant had spent the night of Wednesday 22 November at her parents' home at Kingston. Consistently with that, the defence challenge went not to the content but to the date of the conversation. Agnes said it was Thursday night before she and the appellant first learned that Laural had been found dead. They heard about it from her mother, who was told of it by Allan in the course of a telephone conversation that evening.

The other incriminating statement attributed to the
appellant emerged in evidence given by a Mr. and Mrs. Stonehouse.
They had lived at the Durack caravan park where they came to
know the appellant and Agnes. By November or December 1989 they
had moved to the Blue Gum Caravan Park, at Springwood. It was at
about that time that the appellant and Agnes visited them there
at the invitation of Stonehouse. They were talking about the
murder when the appellant and Agnes "mentioned they had never
given them the right clothes". Mr. Stonehouse said that that was
what those two had "virtually" said, adding that it was the
appellant who said "I didn't give them the right clothes". Agnes
then chipped in to say "We never gave them the right shoes".
Mrs. Stonehouse fixed the date of the conversation at the end of
November 1989. Her evidence was that the appellant said that he

gave them the wrong clothes and then "on top of that" Agnes said

they gave the wrong clothes.

From other evidence it is clear that the reference was to giving the police some of the appellant's clothing which they had been asked to provide. There was a dispute about the precise terms in which that request was made. Agnes testified that in her presence on Sunday 26 November a police officer asked the appellant for a light blue T-shirt, a light pair of blue jeans, and a pair of sneakers. Agnes said their response was that the appellant did not have a light pair of jeans or a light blue T- shirt, and "he just told us to get something close to it". According to Det. Sgt. Conway, what he asked for was not any specific type of clothing, "but just clothing he [the appellant] may have worn on that night". Later, on that Sunday, Agnes arrived at the police station where the appellant was being interviewed and handed over a bag containing a pair of grey coloured trousers and a creamy T-shirt. The clothing was shown to the appellant, who confirmed it was the clothing he had worn on Tuesday night. In fact, at the trial Agnes said that on Tuesday evening the appellant had at first been wearing his light blue/grey pants and a black and blue striped shirt. When he returned to the Morningside flat in the early hours of the morning he was wearing light clothes - "I think it was his cords" - and a light T-shirt. She said that the only light T-shirt he had was his cream T-shirt. It appears to have been this clothing that she delivered to the police.

Whether incriminating inferences can properly be drawn from his conduct may be open to question. What must be said is that there are aspects of the evidence of Mr. and Mrs. Stonehouse that are unsatisfactory. He invited the appellant over because the police had kept on asking him about the appellant and the murder.

For some reason in the first of their written statements given to police in March 1990 neither of the Stonehouses mentioned the clothing. It was not until a further statement was made in June 1991 (some 17 months after the conversation had taken place) that the remarks about clothing were first recorded. Stonehouse explained this omission on the ground that he had been "under some personal stress" at the time. In late 1989 he had something "weighing on his mind" that was "a great worry" to him, as a result of which he was having "reasonably frequent discussions with the police". The inference seems to be that some kind of criminal charge was threatened or pending against him at that time.

Stonehouse's memory proved deficient in another particular.
He at first told police he had given the appellant some tools
including a 3-foot shifting spanner. Later he amended the size
of the spanner to 8 or 10 inches long. At the trial he recalled
it was "a little shifter" of about two inches in length. This
description accorded with the evidence previously given by Agnes.

Plainly the spanner was not, as might at one time have been

suspected by someone, the weapon used to kill Laural.

Considered broadly, the evidence of Mr. and Mrs. Stonehouse suggests that, at a time when he was seeing police about other matters they may have been pressed, possibly more than once, to say things they could not readily recall. On one view, it may reflect no credit on investigating techniques. Overall, the circumstances are such as to render their evidence much too unreliable to be worthy of credit.

The remaining and most cogent item of evidence against the appellant was the discovery in the vicinity of the dead body of three butts of cigarettes that had been smoked. Analysis of Mr. Hackney showed that the tobacco and its constituents were of the type sold as White Ox Ready Rubbed, which is a brand used by smokers who roll their own cigarettes. Mr. Hackney, who is an industrial chemist employed by Rothmans in Sydney, was also able to say that, according to the Nelson Index of market share in December 1989, White Ox Ready Rubbed tobacco accounted for 8.8 per cent of the ready rubbed tobacco sold in the Brisbane metropolitan area (which includes Ipswich but not the Gold Coast or Sunshine Coast).

It was proved that the appellant smoked White Ox Ready Rubbed tobacco, so that the case against him gains considerably from the discovery at the scene of cigarette butts containing tobacco of that brand. The force of the evidence is, however, somewhat diminished by two other factors. One is that there was no evidence of the total number of smokers of ready rubbed tobacco in the Brisbane metropolitan area, so that it is impossible to estimate the real likelihood of some other smoker of White Ox being with Laural that night. The other factor is that laboratory testing of the butts for saliva failed to reveal any connection between them and the appellant.

This also proved to be the case with all the scientific tests conducted on items that according to the Crown case might have been expected to yield some evidence connecting the appellant with the murder, or (if it took place elsewhere) the area where the body was discovered. Neither clothing nor shoes (including those provided on request, as well as others taken by police from the caravan) disclosed any signs of Laural's blood or other incriminating biological material. Equally, the victim's clothing and associated items found at the scene revealed nothing to connect the appellant with the event. The white Valiant Charger underwent detailed inspection and examination on four separate occasions. No blood stains of any kind were found, nor was anything discovered suggesting that Laural had ever travelled in the vehicle while alive, or that it had been used to transport her body after death.

The matter, in short, is one where, apart from finding cigarette butts of the same brand as that smoked by the appellant, the case against him rested entirely on oral testimony of opportunity and of incriminating statements attributed to the appellant. It is this evidence that requires independent assessment to decide whether the verdict and conviction can be left to stand, or should be set aside as unsafe.

The strength of the evidence of opportunity is affected by two principal considerations. According to Dr. Ashby's estimate, the probable time of death was about 3.00 a.m. on Wednesday 22 November. If that were an unqualified opinion, it would mean that the appellant ought to have been acquitted. For, at that time and for an hour or so before, he was with others at the flat at Morningside. It is only if the death or the fatal injury took place at or before about 1.00 a.m. that the appellant could have been the murderer. Dr. Ashby was prepared to acknowledge the possibility that the critical time might have been as early as midnight or even before. Plainly, however, it becomes progressively more difficult to establish the appellant's guilt beyond reasonable doubt as estimates of the time of death move from realms of probability to possibility.

The jury were nevertheless entitled to consider the other evidence on the footing that it was at least possible that the appellant had been in a position to kill Laural. The case against him is greatly enhanced if Nancy Douglass correctly identified the white Valiant Charger which she claimed to have seen from the window of the flat at about 9.45 p.m. on Tuesday 21 November. Her evidence on that point is, however, in conflict with Buswell's testimony that at about the same time he heard the Valiant Charger return and park next to his van at Durack. One of those two independent witnesses must therefore have been mistaken. There is unfortunately no objective means of telling which of them it was. Certainly, it would not be possible to conclude beyond reasonable doubt that the appellant was at Morningside rather than at Durack at about 9.30 or 10.00 p.m. that evening.

Turning to the pre-trial statements, the suggestion that the appellant attempted to fabricate an alibi in his conversation with Buswell seems unconvincing. It is at least as likely that either the appellant or Buswell is innocently mistaken about this incident. What the appellant said in his formal record of interview with the police was simply (Q&A 157, 158):

"I drove up to my van and parked in the driveway and

went inside. I knocked on Tom's door and asked if he
wanted coffee ... He sung out no."

The interview in which this question and answer were recorded took place on Sunday 26 November. According to Buswell, the appellant's inquiry about whether Buswell recalled the coffee invitation was made in the course of the conversation with the appellant and Agnes on Wednesday 22 November. On that occasion, according to Buswell, he rejected the suggestion that the appellant had asked any such question. If Buswell did reject it on that occasion, it is odd that the appellant should have repeated his version of the incident by volunteering, as he did, the same statement to police some four days later in the course of the interview. It is scarcely to be supposed that the appellant set out to fabricate an alibi by telling the police something which he knew had already been denied by his alibi witness.

In this context the Crown's contention would be more persuasive if the relevant conversation with Buswell had taken place after the record of interview on Sunday 26 November. However, according to Buswell, it took place on Wednesday 22 November. It was the same occasion when the appellant is said to have mentioned that Laural was missing or murdered, and that he was worried that he might be accused of something. If the occasion when that was said was indeed Wednesday 22 November, then the case against the appellant would be so much stronger because at that time no one but the police and the murderer knew that Laural was missing or dead. Having presumably already confided in Agnes, the appellant must thus be taken to be announcing to Buswell on Wednesday night that he (the appellant) was the prime suspect in a murder that no one else (apart from the police) then knew had been committed. It is possible that he was either so stupid or so reckless as to do that; but, before accepting that he was, one would need to be sure that Buswell had correctly fixed the date of the particular conversation. As to that, he agreed that when he made his first statement to police he was unsure about the night on which the subject conversation had taken place, and that he had later worked it out using the television programme to prompt his memory. The possibility exists that in doing so he unwittingly confused or combined two different occasions on which he watched the same programme, or that he transposed one night's viewing to another.

The fundamental weakness of the prosecution case is that there is, in the end, no hard, objective evidence linking the appellant directly with the murder. The cigarette butts do not do so. All they do is to narrow the range of suspects to a numerically indefinite class of individuals of which the appellant is one. As to the other matters, it is possible to conclude that the appellant was the killer, but only by consistently adopting the most unfavourable view of each of the matters presented in evidence. It involves accepting that the killing took place at or before 1.00 a.m. on Wednesday 22 November, in spite of the opinion of Dr. Ashby that death probably occurred at or after, rather than before, 3.00 a.m. It involves accepting the evidence of Nancy Douglass that the Valiant Charger was at Morningside between 9.30 and 10.00 p.m. on Tuesday 21 November, in spite of the evidence of Buswell that he heard it arrive back at Durack at about that time. Standing by itself, Ms. Douglass' evidence would not suffice to justify conviction. It therefore also becomes necessary to accept as accurate the further evidence of Buswell that the appellant spoke about Laural as a person who was either missing or murdered, and that he did so in the presence of both Buswell and Agnes late in the night of Wednesday 22 November before anyone else knew of Laural's absence or death.

It was open to the jury to accept the evidence of Ms. Douglass and of Buswell, and even to select parts of their evidence where it conflicted. To do so, however, is to construct a case against the appellant that in critical respects is both deficient and fragmented. It is one that, as regards the evidence of Ms. Douglass, rests upon visual identification of a vehicle that might have been mistaken; and that, as regards the evidence of Buswell, rests on the date of a conversation that might readily have been confused. The verdict cannot stand unless one can be satisfied beyond reasonable doubt that their evidence is completely accurate and reliable.

The underlying hypothesis of the prosecution case may in any event be quite mistaken. At the trial it was suggested by the Crown that Laural was a shy, reserved girl, who was not at all outgoing. The evidence of her friend Tanya McDonald does not really substantiate that impression of the deceased. Laural did

not have a boyfriend in November 1989, which was a time when she was studying for examinations; but, before then, she had had a boyfriend as recently as September of that year. Earlier, in about April 1989, she had been involved in a dispute with another young woman about a boyfriend. There was a physical encounter of some kind, in which Laural was assaulted and sustained a black eye. The other woman is said to have been a member of a skinhead group, described as a "sub-culture" favouring distinctive dress and holding "some sort of white supremacist views". There is nothing at all to suggest that any of those people were responsible for Laural's death. But, given an evening when she was alone, unhappy, and evidently keen to find someone with whom she could talk, it would be a mistake to suppose that the appellant was the only acquaintance whom Laural would have been prepared to admit into the flat, or with whom she would have been willing to go out that night.

In my view, although there was evidence on which the jury was entitled to convict, it was evidence of such a nature that it should be regarded as "insufficient to satisfy a reasonable jury of the accused's guilt according to the criminal standard of proof": see Chidiac v. The Queen (1991) 171 C.L.R. 432, 444, per Mason C.J. The case is really one in which the nature of the evidence point to the guilt of the appellant is neither sufficiently cogent nor sufficiently substantial to outweigh the perceptible risk that it was not the appellant who committed the murder.

I would therefore allow the appeal, and set aside the conviction and verdict. In lieu a verdict and judgment of acquittal should be entered in favour of the appellant.

JUDGMENT OF PINCUS J.A.

Delivered the Ninth day of November 1992

The principal ground of appeal is that the appellant's conviction of murder was unsafe. There was evidence capable of supporting the inference that the appellant was guilty, but it was contended that the conviction should not stand.

I shall set out what appears to be the most important evidence on which the Crown relies to uphold the verdict and then deal with what are, to my mind, the chief flaws in that case. It is convenient to say now, as to the latter, that the principal point is whether the jury was entitled to attach credence to incriminating evidence given by the witness Buswell.

On the Crown case, the deceased, a young woman called Laural Jacobson, was a fairly recent arrival in Brisbane, to which city she had come from Gympie where she previously lived. From such descriptions of her as are to be found in the evidence, one would not expect that she had many friends in Brisbane; she did not have a boyfriend at the relevant time, nor did she go out socially much. On Tuesday, 21 November 1989, during the evening of the night Laural was killed, she was told by her flatmates that they required her to leave the flat in which she resided, which I shall call Laural's flat. This upset her and she telephoned her mother (who was in Gympie) in a distressed state. Somewhat later, she phoned to speak to another friend, a Ms Cairncross, who was not at her home. Ms Cairncross' mother spoke to Laural, who appeared to be "feeling down". Laural told Mrs. Cairncross she was going to bed. About 8.30 p.m. the appellant drove into the central city from Laural's flat at Morningside, Brisbane, taking with him Laural's two flatmates and the appellant's de facto wife, Agnes Toal. Laural did not go with them, but stayed at her flat. The appellant was driving a white Valiant Charger sedan; he dropped his passengers at the Sheraton Hotel. About 9.45 p.m. that sedan was seen outside the building containing Laural's flat. The deceased's flatmates and Agnes Toal came back to the flat shortly before 2 a.m. the following morning and found set out in the kitchen two coffee cups containing coffee and sugar. Laural was not about and her flatmates assumed she had gone to bed. There was at the time no milk in the flat; Laural and the appellant each habitually took milk in their coffee. About 2.15 a.m. the appellant arrived at the flat with a carton of milk and some coffee. He was noticed to be wearing clothes different from those he had worn when he drove to the Sheraton and gave as an explanation that he had been obliged to shower and change his clothes because of difficulty he had with boils in his groin.

The appellant later told the police that he had got lost after he left the Sheraton and had to ask directions to find his way home. He told the police he went back to the caravan park at Durack, where he lived, and arrived at about 9.30 p.m.; he then watched television. He said that he had changed his clothes and gave the boils as the reason. He decided he would return to the Morningside flat, he asserted, because he was sleepless and lonely.

A Ms Douglass said she saw the rather distinctive car the appellant drove, at the building in which Laural's flat was situated, about 9.45 p.m. when, on the appellant's version, he was a considerable distance away, at the caravan park. The Crown suggests that the presence of the two cups in the flat, containing coffee and sugar, was consistent with those who were about to use them appreciating that there was no milk in the flat and leaving to obtain some.

The body was found in a field at Alberton, used to grow sugar cane. The Alberton area is remote from Morningside and fairly sparsely populated. It is a low-lying area used predominantly for canefields. Laural appeared to have been battered to death. The body was noticed by a Mr. Burow, shortly before noon on Wednesday, 22 November 1989. Blood which had apparently issued from her body was found and, close by, cigarette butts containing White Ox ready-rubbed tobacco, a brand used by the appellant. There were no other butts in the vicinity. The evidence was capable of supporting the inference that among ready-rubbed smokers - a minority of smokers, the Crown contended - a small proportion only use White Ox tobacco. Laural had apparently been wearing, among other clothing, a pyjama coat and over it a coat which had belonged to her father. The deceased's body was found in close proximity to a road and public boat ramp. In giving a statement to the police and participating in an interview with the police the appellant stated that he was familiar with the area and the boat ramp in particular having visited a friend at Alberton "every now and then" and gone fishing in Alberton on one occasion. This was corroborated by the evidence of his de facto wife, Agnes Toal.

To come to Buswell's evidence, it contained statements which, if accepted by the jury, were damaging to the appellant. Buswell occupied a caravan close to the appellant's. He said that on the night of Wednesday, 22 November (which, as is now known, followed the night of the murder) the appellant came to him with Agnes Toal and said he had a serious problem to talk to Buswell about. The appellant also made reference to his (the appellant's) having come home at 9.30 the previous night and having then asked Buswell over for a cup of coffee. Buswell denied that he had received any such invitation. Buswell said that either the appellant or Agnes Toal said that "one of their friends was missing. It was either missing or murdered. I'm not sure which one it was". Buswell said the name "Laural" was mentioned and that the appellant was nervous and shaking. He also said that the appellant said the police might be coming over and he was worried that he was going to be accused of something. At that stage, the appellant should have had no reason to be concerned about Laural. Although her body was found before noon on the day of the conversation with Buswell, the appellant, so the Crown alleged, had no means of knowing that she had been killed, unless perhaps he killed her. The evidence of Agnes Toal, the appellant's de facto, includes a denial of any visit to Buswell on the evening in question, Wednesday, 22 November 1989.

What has been set out to this point appears to me to amount, considered apart from any other evidence, to a substantial case against the appellant. The apparent manner of Laural's death was such that the murderer must almost inevitably have had blood on his body, necessitating a change of clothing and making desirable bathing and washing of clothing. The appellant told the police he had changed his clothing to prevent a spread of the infection which caused his boils, but there was no direct evidence to support the suggestion that a change would have been necessary for that reason; the appellant said he had also showered, and washed clothing, before he came back to the Morningside flat in the early morning of Wednesday, 22 November 1989. If the appellant murdered Laural there was a reason for his lying, as acceptance of Ms Douglass' evidence would show he must have done, about his return to the flats at 9.30 p.m. Then, the presence of the distinctive cigarette butts narrows the possibilities. The murderer seems very likely to have been a user of White Ox ready-rubbed tobacco, as was the appellant. The appellant was also one of (one would expect) relatively few people well enough known to Laural to be invited in late at night. The murderer was, indeed, apparently well enough known to Laural to be able to induce her to leave her flat with her father's coat thrown over her pyjama jacket. The appellant had been to Laural's flat many times. Of course, Buswell's evidence, if unexplained, pointed towards the appellant's guilt.

I have had the advantage of reading the reasons of McPherson J.A. His Honour has dealt in some detail with the evidence of a Mr. and Mrs. Stonehouse concerning clothing given to the police. At face value, the Stonehouse evidence might be thought incriminating, but for reasons his Honour explains in detail and with which I agree, it would be unsafe to treat the conviction as supported wholly or in part by that evidence; it should, for present purposes, be ignored.

His Honour also discusses the apparent conflict between the Douglass evidence that the Valiant Charger was at the flats about 9.45 p.m. on the night in question and that of Buswell relevant to the same subject; his Honour says that one of those two must be mistaken.

On the face of it, Buswell's evidence might be seen to create a dilemma for the Crown. The evidence he gave concerning the conversation about Laural's being missing and the appellant's concern on that subject is, if correct, hard to explain except on the basis that the appellant had something to do with her death. On the other hand, Buswell's evidence tends to contradict that of Douglass on the important point of the Valiant Charger's having returned to the flats at Morningside about 9.45 p.m.

In my respectful opinion, although one does not know what the jury in fact made of this, it was well open to them to accept what Ms Douglass said, despite Buswell's evidence. One reason for thinking so is that Ms Douglass' evidence did not stand entirely alone. Other witnesses present with her at the relevant time gave her recollection some support as to the time and general nature of the incident in question, although not of course any direct evidence as to what Ms Douglass saw. Buswell's evidence, on the other hand, may have reasonably been thought by the jury only weakly to throw doubt upon Ms Douglass' recollection. When asked why he said it was the appellant's car which came back at 9.30 he replied that there was a sound which was the usual one that car made. He also spoke of hearing a car door slam close by, later in the night, in a context which suggests that it might have been the appellant's. Buswell did not say and perhaps did not remember precisely what was the sound he heard at 9.30 - whether it was a mere door slam or the noise of a motor as well. It appears to me that the jury was entitled to have regard to Ms Douglass' evidence as providing substantial support to the Crown case, despite any contention that Buswell's evidence threw it into doubt. There was rational ground for discriminating between Ms Douglass' actually seeing the car, which had a distinctive appearance, in what she claimed was adequate light, and Buswell's reliance upon a noise which he was able to describe only in a general way. Particularly is that so when Ms Douglass' version had some independent support, although not of a very direct kind.

Apart from all that, the jury might simply have been convinced by Ms Douglass' evidence. She appears to have had no apparent motive to lie and the jury was perhaps inclined to treat her as a person who was quite definite and unlikely to be mistaken on the issue. It should be added that, insofar as the appellant might have relied on the evidence of another caravan park occupant, Margaret Embelton, that does not read as if it could have been of much assistance to the jury.

Mr. Byrne, who appeared before us for the Crown, argued that one was also entitled to notice that Buswell's evidence about the incriminating conversation, although cross- examined on, appears to have been challenged principally as to the date of its occurrence. It appeared not to be disputed that there was a conversation in which "there was some concern about the girl".

Mr. S. Herbert, who led for the appellant, argued vigorously that there was forensic evidence inconsistent with the Crown case. The medical evidence did not assist the Crown, but was, in my opinion, capable of being treated by the jury as not being of any particular assistance either way. The doctor in question was retired at trial, but had worked as a specialist pathologist for the Department of Health for three years, her work including forensic pathology. Her evidence appeared to imply that the critical factor in determining the time of death was body temperature, which would tend to change towards the ambient temperature as time passed.

On that subject, the witness said that her "recollection" was that the temperature of the surrounding air was 320 centigrade and the temperature of the core of the body 300 centigrade; that evidence related to observations about 3.30 p.m. on the afternoon of the day of the murder. It is curious that the witness appeared to be unsure of the former figure. In explaining the difficulties of estimating the time of death, she mentioned "the effect of the burning", meaning that it appeared there had been burning of the canefield nearby. The doctor said parts of the corpse's skin "had started to separate which could be explicable as being caused by the nearby heat". She also said there was full rigor mortis. Had rigor mortis not been complete, that might have helped in fixing the time of death.

Obviously, estimating a time of death from change in body temperature is, as the doctor seemed to think, difficult enough ordinarily and must be made more difficult by a lack of knowledge of the ambient temperature. The doctor gave no figure for and did not claim to know the ambient temperature at any time other than when the examination took place, about 3.30 p.m. - and she gave that figure from recollection only. The estimate she gave of the time of death, initially, was 3 a.m., which she described as "very rough", but she also said that it could have been before midnight; that gives a range of 12½ to 15½ hours, or more, before the examination. Shortly after giving these estimates, the doctor estimated that death had taken place "at least nine hours before, but more likely twelve hours and it could be a longer post mortem interval".

The limits then were from before midnight to nine hours before the doctor's initial examination - i.e. 6.30 a.m. The ambient temperature could have been expected to be much lower than the body temperature during much of that period, but at the time of the examination it was, according to the doctor's account, higher than the body temperature. The doctor said the body "hadn't quite caught up with the daytime warming". One hardly needs the additional uncertainty referred to by the doctor, namely heating by the nearby fire, to conclude that it must have been difficult to determine how long it would have taken to have the body reach 300 centigrade in these varying and perhaps unknown ambient temperatures.

But looking at the matter more broadly, if the jury harkened to the doctor's reservations about the accuracy of her estimates, they might have concluded that her evidence was not of great value in determining whether the Crown had proved its case. Assuming that the time of the appellant's return to the Morningside flat was accurately given in evidence (2.15 a.m.), one would not expect the murder, if done by the appellant, to have occurred later than 1 a.m., because of the distances involved, as explained by McPherson J.A. In my opinion, it would not have been irrational for the jury to take the view that the doctor's evidence attached no particular improbability to the death having occurred between, say, midnight and 1 a.m.

Reference must be made to some other aspects of the evidence. One of the deceased's flatmates, Tanya McDonald, gave evidence relevant to the question of when the appellant might have, if he were innocent, first come to know of the murder. That topic is referred to in the reasons of McPherson J.A.

As I read Tanya McDonald's evidence on the point, she had a discussion with her mother, she thought on the Wednesday (22 November), as a result of which she discussed with Alan Toal "in passing" the question of the body being found in a canefield. It was not until Thursday morning that Laural's mother rang her and, according to Tanya McDonald, she became apprehensive that Laural might have suffered some sort of misadventure. Allan Toal gave rather a different version of that, suggesting that on the Wednesday evening, Tanya became worried about the possibility that the body which had been found was that of Laural; but the jury was not obliged to accept his version rather than Tanya McDonald's. In any event, the appellant said nothing in either of his statements to the police, assuming them to have been accurately recorded, to suggest that he had heard independently of Laural's murder or thought that she had been murdered, before Thursday, 23 November.

There was also evidence that some six months earlier, Laural had been assaulted by another young woman, of doubtful character. It does not appear to me, with respect, that the account which was given of that incident does anything to weaken the Crown case. The evidence pointed to Laural's having been murdered after leaving her flat voluntarily, with someone well known to her; there is every reason to think that the person with whom she left murdered her.

It should be added that the Crown case against the appellant was supported by no scientific or technical evidence other than that relating to the cigarette butts. For example, no trace was found of the murdered girl's having been in the appellant's car. There was ample time to wipe the front seat and any other part thought relevant, so that this aspect does not seem to me of great significane.

Although there was no direct evidence as to who killed the young woman, there was, in my opinion, a substantial case against the appellant capable of convincing a rational jury to the requisite standard that the appellant was the guilty person. It is true that the case was not flawless, but I am far from thinking that the conviction was unsafe. If the jury accepted Ms Douglass, as well as Buswell's account of his conversation with the appellant, they could hardly have been in doubt about the matter.

It remains to deal with a lesser aspect of the matter, namely some criticisms of the judge's conduct of the case.

The first point of this kind which was raised on behalf of the appellant in argument was what was described as a completely false issue, relating to the possibility that some of the injuries might have been caused by blows from fists. The pathologist was asked about that and said, in effect, that whether one would see bruising on the fists which caused the injury depended on how accustomed that person was to striking with fists and whether gloves were worn. That seems innocuous enough, but it appeared to be suggested that because the evidence showed that the appellant had had many amateur boxing matches, the whole subject was simply impermissible speculation. Some account of the doctor's evidence on the point was given in the summing-up, but the judge did not say or imply that the jury should draw any identified conclusion from it.

It may be that the doctor was asked about the likely effect of the use of fists to cause the blows because of the thought, that if there were later said to be no marks on the appellant's fists, that might be taken by the jury to be damaging to the Crown case. For myself, I cannot see that the questions asked of the doctor on that subject or her responses to them would have been likely to be thought by the jury to be of any real importance and the matter merits no further discussion.

The appellant's original outline of argument did not complain of the summing up, but the further outline asserted that in five respects the summing up was defective. These were elaborated upon somewhat in the course of oral argument.

Of the five points taken in the written submission, three amount to this: that the judge did not sum up fully enough and that his directions favoured the Crown.

One may gain the impression from a reading of the summing up that the judge thought the Crown case was not devoid of strength, but it does not appear to me, on the whole, to have been unfair or slanted. The judge declined to explain the details of the evidence of Buswell, on the ground that the jury had recently heard it read. Criticism was advanced to the effect that the judge, in a case depending in large part on circumstantial evidence, should have analysed the relevant circumstances more thoroughly. One would certainly have preferred that, but the case was, after all, not one of any enormous complexity.

The fourth point in the additional written grounds was that the judge did not point out to the jury that a guilty verdict would be inconsistent with the evidence of the pathologist. But that was not so; it all depended on which of the doctor's time estimates was given weight - if, indeed, any of them should have been. The last point was to the effect that having told the jury that one matter (other than the principal issue) had to be proved beyond reasonable doubt, "in respect of other critical matters [the judge] invited the jury to use the evidence as it saw fit". The matter referred to in this ground was, as I read the summing up, that the appellant was in the vicinity of the flats at the time Ms Douglass placed him there. The judge might, with respect, have explained what he intended to say about that more precisely. But I cannot think that the judge was obliged to give a direction that proof beyond reasonable doubt was necessary as to other factual aspects of the case, except of course the ultimate issue.

I would dismiss the appeal.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 140 of 1992

Before the Court of Appeal
Mr. Justice McPherson
Mr. Justice Pincus

Mr. Justice Lee

T H E Q U E E N

v.

JEFFREY JOHN HORNBY

(Appellant)

JUDGMENT OF PINCUS J.A.

Delivered the Ninth day of November 1992

PROPOSED MINUTE OF ORDER:Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW - VERDICTS - UNSAFE AND UNSATISFACTORY - Appellant convicted of murder - whether guilty verdict consistent only with adopting the most unfavourable view of each of the matters presented in evidence - whether evidence insufficient to satisfy a reasonable jury of the accused's guilty beyond reasonable doubt.

Counsel:	M. Byrne, for the Crown S. Herbert, with him J. Lee, for the Appellant
Solicitors:	The Director of Prosecutions for the Crown

The Legal Aid Office for the Appellant

Hearing Date(s):  24 July 1992

JUDGMENT - W.C. LEE J.

Delivered the Ninth day of November 1992.

MINUTE

Appeal against conviction allowed. Conviction and verdict set aside. In lieu a verdict and judgment of acquittal should be entered.

Counsel:S. Herbert with him J. Lee for the Appellant.

M. Byrne for the Respondent.

Solicitors:Legal Aid Office for the Appellant.

Director of Prosecutions for the Respondent.

Hearing date:24th July 1992
IN THE SUPREME COURT

OF QUEENSLAND

C.A. No. 140 of 1992

T H E Q U E E N

v.

JEFFREY JOHN HORNBY

JUDGMENT - W.C. LEE J.

Delivered the Ninth day of November 1992.

For the reasons given by McPherson JA, I agree that this appeal should be allowed, that the conviction and verdict should be set aside and that in lieu a verdict and judgment of acquittal should be entered in favour of the appellant.