R v Johnson No. Sccrm-03-95

R v JOHNSON
[2004] SASC 9

SULAN J: The applicant, Shane Johnson is charged with one count of murder. The trial commenced with a voir dire hearing on 4 November 2003.
At the close of the prosecution case, Mr Vadasz for the accused submitted that there was no case to answer. In the alternative, he applied for a permanent stay of the prosecution case. I dismissed both applications. I now provide my reasons.
No case to answer
The case for the prosecution relied upon circumstantial evidence.
Mr Vadasz submitted that the only evidence against the accused was evidence of arguments and previous acts of violence by the accused towards the deceased. He submitted that that evidence was insufficient to establish the charge.
The prosecution case was that the deceased died in the late evening of 25 May 2002, or early hours of the morning of 26 May 2002. Mr Vadasz submitted that the prosecution had not established the period which it was alleged that the deceased had been murdered. It was the Crown case that the deceased was attacked whilst seated in the passenger’s seat of a Toyota Corolla motor vehicle. She was subsequently dumped in the Gawler River. She was either dead at the time, or she died shortly after being left in the river bed.
Dr Wallman, a forensic entomologist, was called by the prosecution. When the body was discovered on 14 June 2002 it was infested with maggots. Dr Wallman, who is an expert on the life cycle of blowflies analysed maggots which had been removed from the body and near the body. He concluded that the time of death was some time on the evening of 25 May 2002 or in the early hours of the morning of 26 May 2002. Dr Wallman conceded that his estimate may be up to 24 hours out.
In cross-examination of Dr Wallman it was established that there were a number of factors which could have affected his estimate, including whether the deceased had consumed drugs, and the temperature during the time that her body remained in the Gawler River. Dr Wallman relied upon experiments he had conducted using dead pigs and examining the development of blowflies from maggots which fed on the meat. The defence case was that there was uncertainty about the evidence, as Dr Wallman was unable to say whether the pigs had been administered drugs, such as antibiotics, which may have affected the speed of development of the maggots to blowflies. A number of other factors, such as the air temperature over the period that the body had been exposed, the accuracy of the temperature of the maggot mass which had accumulated in and around the body, and the possible transfer of maggots from one source to another, were suggested as possible factors which could make the estimate of time of death subject to doubt. In my view, there was significant uncertainty about Dr Wallman’s evidence as to the time of death.
Mr Vadasz submitted that if Dr Wallman’s opinion was uncertain, then there was insufficient evidence to support the prosecution case as to the time of death, and that the case against the accused could not be made out.
The prosecution relied upon other evidence, including evidence of staining in the Toyota Corolla motor vehicle in which the accused and deceased had been observed some days before the deceased was last seen. The staining was consistent with bloodstaining and it tested positive for DNA which could not exclude the deceased. An expert witness in the splattering of blood when a human is being subjected to an assault was called by the prosecution. In her opinion, the staining in the car was consistent with a person having been severely beaten whilst sitting in the passenger’s seat, by someone sitting in the driver’s seat.
The accused admitted that he had been in the vehicle prior to the deceased’s death. He told the police that at about the time, or shortly after he last saw the deceased alive, he had left the vehicle in a street not far from the house in which he and the deceased resided at Warren Street, Angle Park, and that he had not seen it since.
The vehicle was found abandoned on 27 May 2002 at Ridgehaven, which is a considerable distance from Angle Park. There was evidence that the accused had abandoned the vehicle. If that evidence was accepted by the jury, and if the evidence of the expert witness that the deceased was attacked whilst in the vehicle was accepted, then there was evidence from which a jury could conclude that the deceased died between the late evening of 25 May 2002 and the morning of 27 May 2002.
Mr Henchliffe, for the Crown, conceded that evidence of previous acts of violence by the accused, taken alone, was insufficient to establish a case to answer, but he relied on the evidence relating to the Toyota motor vehicle to support his submission that there was a case to answer.
In Question of Law (No 2 of 1993) King CJ said:
“In R v Prasad (1979) 23 SASR 161, the Court of Criminal Appeal rejected the proposition that the trial judge should uphold such a submission, stop the case and direct a verdict of not guilty "if he considers that the evidence for the prosecution is so unsatisfactory that it would be unsafe to convict upon it.” The correct principle was stated as follows (at 162-163):
‘It is fundamental to trial by jury that the law is for the judge and the facts for the jury. If there is no evidence which would justify a conviction then, as a matter of law, there must be an acquittal. That decision is for the judge and the jury must accept and act on his direction on that question of law. If, however, there is evidence which is capable in law of supporting a conviction, a direction to the jury to acquit would be an attempt to take from them part of their function to adjudicate upon the facts.’ [Emphasis mine.]
That view of the law was endorsed by the High Court in Doney v R (1990) 171 CLR 207.
That principle was applied to the particular problem of a prosecution case dependent upon circumstantial evidence in R v Bilick (1984) 36 SASR 321. I enunciated the relevant principles with the concurrence of Mohr J. At 335 I said:
‘The question of law is whether on the evidence as it stands the defendant could lawfully be convicted. He could lawfully be convicted on that evidence only if it is capable of producing in the minds of a reasonable jury satisfaction beyond reasonable doubt.’
The application of the basic principle, as enunciated in Prasad (supra), to a case of circumstantial evidence was dealt with in the following passage:
‘The same test is to be applied to deciding a submission of no case to answer in a case depending upon circumstantial evidence as in a case depending upon direct evidence, although the manner of its application will be different. The question to be answered by the trial judge is whether there is evidence with respect to every element of the offence charged which, if accepted, could prove that element beyond reasonable doubt. Where there is direct evidence of the actus reus and that evidence is capable of supporting an inference of mens rea, there is a case to answer except in the extreme case, as perhaps of testimony which is manifestly self-contradictory or the product of a disorderly mind, envisaged by the Privy Council, in which the direct 'evidence' is so incredible as to amount to no evidence. Where the case is a circumstantial or partly circumstantial case and therefore depends on inferences, the question may be expanded so that it becomes: On the assumption that all the evidence of primary fact considered at its strongest from the point of view of the case for the prosecution, is accurate, and on the further assumption that all inferences most favourable to the prosecution which are reasonably open, are drawn, is the evidence capable of producing in the mind of a reasonable person satisfaction, beyond reasonable doubt, of the guilt of the accused?’
It follows from the principles as formulated in Bilick (supra) in connection with circumstantial cases, that it is not the function of the judge in considering a submission of no case to choose between inferences which are reasonably open to the jury. He must decide upon the basis that the jury will draw such of the inferences which are reasonably open, as are most favourable to the prosecution. It is not his concern that any verdict of guilty might be set aside by the Court of Criminal Appeal as unsafe. Neither is it any part of his function to decide whether any possible hypotheses consistent with innocence are reasonably open on the evidence: Attorney‑General’s Reference (No 1 of 1983) [1983] 2 VR 410; Thorp v Abbotto (1992) 34 FCR 366. He is concerned only with whether a reasonable mind could reach a conclusion of guilty beyond reasonable doubt and therefore exclude any competing hypothesis as not reasonably open on the evidence.
There was some criticism before us of the concept of reasonableness in the Bilick test and reference was made to R v R (1991) 57 A Crim R 39. I do not read that case as deciding that there can be a case to answer on circumstantial evidence which is incapable of producing in a reasonable mind a conviction of guilt beyond reasonable doubt. If the evidence is incapable of producing that state of mind, it is not capable in law of proving the charge. I note that Lee CJ at CL speaking for the Court quoted with approval a passage from the judgment of Jordan CJ in R v Crooks (1944) 44 SR (NSW) 390 in which Jordan CJ quoted from Ross v The King (1922) 30 CLR 246 at 255-256 as follows:
‘If there be evidence on which reasonable men could find a verdict of guilty, the determination of the guilt or innocence of the prisoner is a matter for the jury and for them alone …’ [Emphasis mine.]
I would re-state the principles, in summary form, as follows. If there is direct evidence which is capable of proving the charge, there is a case to answer no matter how weak or tenuous the judge might consider such evidence to be. If the case depends upon circumstantial evidence, and that evidence, if accepted, is capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt and thus is capable of causing a reasonable mind to exclude any competing hypotheses as unreasonable, there is a case to answer. There is no case to answer only if the evidence is not capable in law of supporting a conviction. In a circumstantial case that implies that even if all the evidence for the prosecution were accepted and all inferences most favourable to the prosecution which are reasonably open were drawn, a reasonable mind could not reach a conclusion of guilt beyond reasonable doubt, or to put it another way, could not exclude all hypotheses consistent with innocence, as not reasonably open on the evidence.”[1]
[1] (1993) 61 SASR 1 at 4-5
There was evidence led by the Crown which linked the accused to the Toyota Corolla prior to the disappearance of the deceased, and other evidence from which the jury could conclude that the accused had abandoned the vehicle. There was evidence which supported the prosecution case that the deceased was beaten whilst she was seated in the vehicle. The circumstantial evidence, if accepted, was capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt and was capable of causing a reasonable mind to exclude any competing hypothesis as unreasonable.
In my view, there was a case to answer. I refused the application.
Stay of proceedings
Mr Vadasz submitted that the police investigation was incomplete in that the police ignored certain evidence which may have lead to lines of inquiry which could have excluded the accused. There was information provided to the police investigators that there were a number of sightings of vehicles at the Gawler River, other than the Toyota Corolla, which might have been involved in transporting the deceased to near the location where the body was found. There was also evidence of witnesses who it was claimed sighted the deceased after the date upon which the Crown alleged she had been murdered. It was contended that the police had failed to adequately follow up this information, and had failed to obtain written statements from witnesses who could have assisted the defence case. Mr Vadasz submitted that the police investigation was so incompetent that the accused could not receive a fair trial. He submitted that there should be a permanent stay of proceedings.
The court has power to order a permanent stay of prosecution as being an abuse of process of the court.[2] In Maevao v Department of Labour[3] Richmond P of the New Zealand Court of Appeal considered when the conduct of investigating authorities would result in granting of a permanent stay. He said:
“… it cannot be too much emphasised that the inherent power to stay a prosecution stems from the need of the Court to prevent its own process from being abused. Therefore any exercise of the power must be approached with caution. It must be quite clear that the case is truly one of abuse of process and not merely one involving elements of oppression, illegality or abuse of authority in some way which falls short of establishing that the process of the Court is itself being wrongly made use of.”
[2] Barton v R (1980) 147 CLR 75 at 96, per Gibbs CJ with Mason and Aitken JJ agreeing
[3] [1980] 1 NZLR 464 at 470-471
Mason CJ in Jago v District Court of New South Wales & Ors[4] expressed a similar view as to when the exercise of the courts power to stay proceedings should be invoked:
“In essence then, the power to prevent an abuse of process in this context is derived from the public interest, first that trials and the processes preceding them are conducted fairly and, secondly, that, as far as possible, persons charged with criminal offences are both tried and tried without unreasonable delay. In this sense, fairness to the accused is not the sole criteria when a court decides whether a criminal trial should proceed.[5]
…
[4] (1989) 168 CLR 23
[5] Ibid 30
[6] Op cit n4 at 31
… the power is discretionary, to be exercised in a principled way, and the same considerations will govern its exercise. And in each case the power will be used only in the most exceptional circumstances to order that a criminal prosecution be stayed.”[6]
He further added that in determining what is fair, the court was required to balance the interests of the community’s right to expect that persons charged with criminal offences are brought to trial against the interests of the accused.[7]
[7] Op cit n4 at 53
A permanent stay may be granted if there is relevant evidence which has been destroyed so that it is not possible for the accused to receive a fair trial.[8] An unsatisfactory police investigation will not necessarily result in a determination that a trial is not fair. In Jago v The District Court of New South Wales,[9] Brennan J said that the power to ensure a fair trial is not a power to stop a trial before it starts, but rather to mould the procedures of the trial to avoid or minimise prejudice to either party. He said:
“But it cannot be said that a trial is not capable of serving its true purpose when some unfairness has been occasioned by circumstances outside the court’s control unless it be said that an accused person’s liability to conviction is discharged by such unfairness.”[10]
[8] See Holmden v Bitar (1987) 47 SASR 509, R v Lord and Fraser [1983] Crim LR 191, Duncombe-Wall v Police (1998) 197 LSJS 398
[9] Op cit n4
[10] Op cit n4 at 48
Even if I were to accept Mr Vadasz’s submission that the investigation in this case was incomplete or even incompetent, that alone is not a sufficient ground for ordering a stay of proceedings.
In any complex investigation where the assistance of the public is requested, there will be many reports to the police, some of which need to be followed up in detail, some of which can be dealt with simply by telephone conversations. Information may not be relevant, it may be too vague, it may be speculative, it may be based on rumour.[11] Furthermore in this case, in respect of matters which were not followed up as fully as the defence would wish, that information was supplied to the defence and the defence was in a position to further investigate those matters with the witnesses. The prosecution agreed to make the details of those who provided information to police available to the defence and to assist in making those persons available for interview by the accused’s solicitors. The defence was, therefore, not prejudiced in that evidence crucial to the defence case had not been destroyed. Although, because of the lapse of time, the position was not as perfect as the defence would ideally wish, there was, in my view, insufficient reason to prevent the trial from proceeding.
[11] See R v K (1991) 161 LSJS 135
I refused the application.
JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT
[1] (1993) 61 SASR 1 at 4-5
2 Barton v R (1980) 147 CLR 75 at 96, per Gibbs CJ with Mason and Aitken JJ agreeing
3 [1980] 1 NZLR 464 at 470-471
4 (1989) 168 CLR 23
5 Ibid 30
6 Op cit n4 at 31
7 Op cit n4 at 53
8 See Holmden v Bitar (1987) 47 SASR 509, R v Lord and Fraser [1983] Crim LR 191, Duncombe-Wall v Police (1998) 197 LSJS 398
9 Op cit n4
10 Op cit n4 at 48
11 See R v K (1991) 161 LSJS 135

[2004] SASC 9

14 January 2004