R v Keller

[2006] QCA 280

SUPREME COURT OF QUEENSLAND

CITATION:

R v Keller [2006] QCA 280

PARTIES:

R
v
KELLER, Thomas Campbell Sheridon
(appellant)

FILE NO/S:

CA No 87 of 2006
SC No 48 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Toowoomba

DELIVERED ON:

4 August 2006

DELIVERED AT:

Brisbane

HEARING DATE:

12 July 2006

JUDGES:

de Jersey CJ, Williams and Jerrard JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal against conviction dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – TESTS – WHETHER JURY WOULD HAVE RETURNED SAME VERDICT – MISDIRECTION AND NON-DIRECTION – where the appellant was convicted on several charges including common assault, burglary unlawful wounding and stalking – during summing up, the trial judge commented that if the accused was to be believed, the complainants ‘must have embarked upon a course of conspiring to bring very serious false allegations’ – whether the trial judge erred in failing to adequately direct the jury in regards to the evidence of the appellant and whether any directions/observations made were responsible for undermining the onus of proof

Azzopardi v the Queen [2001] HCA 25; (2001) 205 CLR 50, applied
Liberato vThe Queen (1985) 159 CLR 507, considered

COUNSEL:

G P Long for the appellant
M J Copley for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

1. de JERSEY CJ:  I have had the advantage of reading the reasons for judgment of Williams JA.  I agree that the appeal should be dismissed for the reasons given by his Honour.

1. WILLIAMS JA:  The appellant was convicted on 10 March 2006 of one count of common assault committed on 22 December 2004, one count of burglary in the night with violence whilst armed, one count of unlawful wounding with intent to do grievous bodily harm, and one count of unlawful stalking with a circumstance of aggravation.  The burglary and wounding offences occurred on 10 February 2005, and the stalking was alleged to have occurred between 30 April 2004 and 11 February 2005.  He was sentenced to eight years imprisonment on the unlawful wounding count, with lesser sentences on the other counts.  It should be noted that he was acquitted of a burglary charge alleged to have been committed on 22 December 2004, and an attempted murder charge arising out of the incidents which occurred on 10 February 2005. 

1. By his notice of appeal he challenged both the convictions and the head sentence.  On the hearing of the appeal he abandoned the grounds of appeal set out in the notice and relied on the ground hereinafter set out.  He also abandoned his application for leave to appeal against sentence, and the Court ordered that it be dismissed.

1. The amended ground of appeal, the only ground argued, was in the following terms:

"The Trial Judge erred in failing to adequately direct the jury as to consideration of the evidence of the Appellant and particularly erred at R.210.1-30 in giving directions and/or making observations that had a tendency toward undermining the onus of proof, in that he:

(a)invited comparison between the versions of the Complainants and that of the Appellant; and

(b)invited a resolution of that comparison by reference to a conclusion that if the Appellant was to be believed, the Complainants 'must have embarked upon a course of conspiring to bring very serious false allegations'."

1. The complainants were Katrina Schaepman (KS) and Jade Brent (JB).  KS was very friendly with Katie McGaw (KM) who was in a relationship with the appellant for some time prior to the events in question.  That relationship ended around mid-2004 at a time when KM was pregnant.  KS was with KM on an occasion when the latter was retrieving clothing from the house she had occupied with the appellant, and on that occasion the appellant threatened KS.  He blamed KS for the separation and said words to the effect that he would come back and kill her.  JB was the partner of KS.  The evidence was that KS knew the appellant reasonably well, and JB had met him on a number of occasions.

1. On about 22 December 2004 KM obtained a temporary protection order against the appellant which forbade him from visiting the residence of either KM or KS.  A police officer informed the appellant of that fact on that date. 

1. The evidence of KS was that later on 22 December 2004 the appellant went to her residence.  When he knocked on the door she told him to leave.  He then entered the house through a rear door, stormed through the house, and told KS that it was her fault his relationship had ended and he was going to kill her.  He was speaking in a loud voice and KS could smell alcohol on his breath.  The appellant raised his fist and swung it at KS, but he missed her completely.  The blow clipped the back of the infant son of KS.  It was that conduct which constituted the common assault on 22 December 2004.  His entering the house gave rise to the burglary charge on which he was acquitted.

1. It should be noted that KM gave birth to a baby girl on 27 December 2004; the child's father was the appellant.

1. On the evening of 9 February 2005 JB locked the front and rear doors of the residence in which he was living with KS.  He then retired to bed with KS.  During the night KS brought her infant son into that bed.  According to the evidence of KS the child was on the side of the bed closest to the door, KS in the middle, and JB on the other side.  The critical events occurred around 3.00 am on the morning of 10 February 2005.  JB said he was awoken by a sensation of being struck on the right shoulder blade and that someone was on top of him.  He then began pushing that person off.  In the course of that KS was awoken by something hitting her on the legs.  When the light was switched on both KS and JB gave evidence they were able to identify the appellant as the person in the room.  It was obvious that JB had been stabbed.  One stab wound had penetrated through soft tissue and into his lung causing it to collapse.  There were two further superficial stab wounds.  According to the evidence of KS and JB they saw the appellant holding the handle of a knife.  Later when JB was removed from the bed the blade of a serrated edged knife was located.  It was identified by KS as a knife which came from the laundry of the residence.  The appellant's entry into the house was the subject of the charge of burglary with violence whilst armed, and the stabbing of JB gave rise to the wounding charge.

1. According to KS and JB there was a reasonably lengthy exchange of words between them and the appellant.  According to KS the appellant said word to the effect that he did not mean to "get" JB but meant to "get" her.  According to her he also said: "If youse dog on me, I'll come back and kill youse."  She also alleged the appellant said: "I was standing at the door for about half an hour because I didn't know who was who."  Further, according to KS the appellant said he would not leave without a missing thong; she found it and gave it to him.  The appellant said words to the effect that there would not be any DNA because he was smart.

1. The evidence of JB was in broad terms to similar effect.  According to him the appellant said: "I'm sorry for stabbing you.  It wasn't supposed to be you.  It was supposed to be that dirty little slut next to you."  He also heard the appellant saying: "When I'm in jail, I'll get my mates who have guns to come around and shoot you all."  

1. The appellant was charged with the attempted murder of KS but was acquitted by the jury.

1. The appellant gave evidence denying that he committed the offences on 10 February.  He denied being in the home of KS and JB on that night.  His evidence was that he went to work on 9 February 2005 but was sacked.  He then went to his brother's residence and did not have much recollection of what occurred thereafter due to the ingestion of a large quantity of alcohol and drugs, including marijuana and amphetamines.  He said he left his brother's house sometime after 1.00 am on 10 February and went home.  His residence was not far from that of KS and JB.

1. The prosecution led evidence from a Mr Qualischefski to the effect that the appellant was at his place from about 9.30 pm on 9 February until he dropped the appellant at the corner of Cay and Bridge streets which was near to the residence of the complainants and that of the appellant.  His evidence was that the appellant was dropped off there around 2.00 am on 10 February 2005.  According to Qualischefski the appellant had the appearance of being intoxicated earlier in the evening but had sobered up somewhat by the time he was dropped off.  A Ms Riley, who lived in the same residence as Qualischefski, also gave evidence that the appellant was at their residence from around 10.00 pm on 9 February until about 1.45 am on 10 February.  Under cross-examination Qualischefski conceded that at the committal proceedings he had said he had dropped the appellant off between 9.30 pm and 11.00 pm.

1. Ms Helmstedt, at whose residence the appellant was living at the material time, gave evidence that she was awoken to let the appellant into the house some time after 1.00 am on 10 February. 

1. Finally with regard to relevant evidence it needs to be said that the appellant's evidence was that he was not in the residence of KS on 22 December 2004, and no such incident as alleged occurred.

1. It was against that background that the learned trial judge summed up to the jury.  The following extracts from the summing up are relevant to the disposition of the submissions advanced on behalf of the applicant; it should be noted that the following are extracts only and there was in many instances many pages between the extracts:

"… you have to accept my directions on the law without question.  On the other hand, you are the only judges of fact in the case.  The accused comes before you clothed with the presumption of innocence.  You … find him guilty if and only if you find that that presumed innocence has been displaced by proof beyond reasonable doubt of his guilt.  There is no onus on the accused to establish his innocence.  No accused is under a duty to give evidence at his trial, it is his right to do so, and having exercised that right and given evidence he does not take on the burden of proving his innocence.  The burden of proving his guilt still rests with the Crown.  … The Crown must establish each and every element of each of the charges beyond reasonable doubt. … You should consider the evidence as a whole, that is the Crown evidence and the accused’s evidence.  Considering the evidence as a whole, you should then decide whether you are satisfied beyond a reasonable doubt of the guilt of the accused as you consider each of the counts.  … I have referred to the necessity to have regard to the whole of the evidence.  It is important to bear in mind if you have any doubts about a particular piece of evidence, reference to other pieces of evidence may resolve that doubt or serve to explain it or give it a significance that it would lack if considered in isolation.  Equally, a piece of evidence which seems clear enough on its face may have doubt cast on it by other evidence which you accept as credible.  You must look at all the evidence, as I have said, and having regard to all of the evidence determine whether each element of the offence has been made out on the balance of probabilities.  … The sole question you are required to decide in each case is the guilt of the accused, that is, whether the accused on the evidence before you is guilty beyond a reasonable doubt of the charge … Please remember that the evidence that is commented on by me or by counsel does not necessarily mean that the evidence has any more weight or importance or significance than any other parts of the evidence … Before you can find the accused guilty of any of counts 3, 4 and 5, you will need to find beyond reasonable doubt that he was at Schaepman's dwelling in the early hours of that morning.  He says he was not there."

1. Thirteen lines after making the statement just quoted, comes the passage attacked by counsel for the appellant:

"Against this background, you might well think that your finding as to whether or not the accused was in the bedroom, as Schaepman and Brent say he was, depends on whether you believe the substance of their version of events, or on whether you believe the substance of the accused's version of events.  If the accused's version is correct, you might think that Schaepman and Brent must have made up their story for some reason or other.  If they did make it up, the evidence suggests that they must have embarked upon a course of conspiring to bring very serious false allegations against the accused when Schaepman was in a state of distress on the evidence of one of the police officers and when Brent was suffering from the effects of the attack."

1. The foregoing part of the summing up was delivered to the jury on the afternoon of day three of the trial.  The summing up continued the following morning.  It was then that the learned trial judge dealt with counts one and two; with respect to those counts, relevantly he said:

"Now, the accused, of course, says the incident never happened.  Ms Schaepman said it did.  Whether the first element is proved beyond reasonable doubt is largely dependant on who you believe.  You can believe one or you can believe neither.  As for the second limb, you will find it proved, only of course if you are satisfied that the first limb was proved, and then you have to consider again this question of intention … count two … involves the same set of circumstances.  Whether you find count one or not, again, is, essentially, a question of who you believe."

1. Experienced counsel for the appellant only asked for one redirection, and that related to what was said with respect to counts one and two.  Counsel is recorded as submitting: "your Honour should have gone on to say 'or if his evidence causes you to have a reasonable doubt, then of course you would acquit him as well'.  I know you have done that in the general sense."  The learned trial judge exceeded to the request for a redirection and then directed the jury as follows:

"In relation to counts one and two I said that if you believe the accused, accepted his evidence, you would find him not guilty.  I should have gone one step further and reminded you, of course, that even if you disbelieved him you could still find him not guilty.  It is for the Crown to prove the case beyond reasonable doubt, and just because you disbelieved him it does not follow necessarily that you would find the elements of the offences of counts one and two made out, but I imagine that you already appreciated that from what I said yesterday."

1. It will have been noted from reading the extracts quoted from the summing up that on one occasion the learned trial judge spoke of the jury determining "whether each element of the offence has been made out on the balance of probabilities".  No redirection was sought at trial, and the inference must be that the error was not appreciated at the time, possibly because of the repeated statements throughout the summing up that the elements had to be proved beyond reasonable doubt.  No issue was taken on the point in counsel's written outlines of argument submitted to this Court, nor was there any reference to it in the course of oral argument.  The error was only noted after the matter was reserved.

1. In all of those circumstances it seems clear that the use of the words "balance of probabilities" on the one occasion was a slip of the tongue which went unnoticed by all.  In the circumstances there is no reason to believe that the jury would have taken that statement as some qualification on the otherwise clear, express directions given to them on numerous occasions.  Given the overall somewhat unusual circumstances the error was not one potentially occasioning any miscarriage of justice such as might call into play the proviso. 

1. The passage in the summing up on which the sole ground of appeal argued was based was said to be erroneous for two reasons.  First, it was said that there should have been a direction that the jury should be careful not to jump from the conclusion that the defence evidence should not be accepted to an automatic conclusion of guilt.  The jury should have been told that if they rejected the defence evidence they still had to consider whether the prosecution had proved its case beyond reasonable doubt having regard to the other evidence.  The second error, according to counsel's submission, was that the direction was inappropriate because it had a tendency to reverse or undermine the onus of proof; there was an invitation to compare the evidence in such a way that a consequence of accepting the defence version would be a conclusion that the complainants must have embarked upon a course of conspiring to bring serious false allegations.

1. A judge may of course comment on the evidence in ways designed to assist the jury in their deliberations.  There is a clear line drawn between directions given by the judge which the jury must obey, and comments with a view to assisting the jury in their deliberations which they are entitled to ignore.  Gaudron, Gummow, Kirby and Hayne JJ in Azzopardi v the Queen (2001) 205 CLR 50 at 69 - 70 said:

"It is, however, not the province of the judge to direct the jury about how they may (as opposed to may not) reason towards a conclusion of guilt.  That is the province of the jury.  The judge's task in relation to the facts ends at identifying the issues for the jury and giving whatever warnings may be appropriate about impermissible or dangerous paths of reasoning.  That is not to say that the judge may not comment on the evidence that has been given and comment about the facts that the jury might find to be established.  But the distinction between comment and direction is important.  Telling a jury that they may attach particular significance to the fact that the accused did not give evidence is a comment by the judge.  Because it is a comment, the jury may ignore it and they should be told they may ignore it.  By contrast, warning a jury against drawing impermissible conclusions from that fact is a direction by the judge which the jury is required to follow."

1. It is significant for present purposes that in that passage reference was made to "comment about the facts that the jury might find to be established". They are the introductory words used by the judge in the passage here which is under attack. The first sentence in the passage is essentially introduced by the words "You might well think", and in the second sentence the relevant words are "you might think". The trial judge was doing no more than making a comment, which given the circumstances of the case would have been fairly obvious to any reasonable juror.  In that context there is no necessary problem in the judge referring to the fact that the jury may well get some assistance in their deliberations from a comparison of the evidence given by witnesses for the prosecution with that given by the accused.  As Deane J said in Liberato vThe Queen (1985) 159 CLR 507 at 519:

"Provided that they are accompanied by clear and unequivocal directions about the criminal onus and standard of proof, express or implied references in a summing up to a 'choice' between particular
witnesses are, no doubt, sometimes unavoidable and commonly unobjectionable. "

As already noted, in this case there were clear directions about the standard of proof. In this case it must have been obvious to all that a necessary part of the deliberations of the jury would be a comparison of the evidence of KS and JB on the one hand with that of the appellant on the other as part of the process of determining what facts were established by the evidence. The learned trial judge had said only a few lines earlier, that in order to convict on counts 3, 4 and 5 the jury had to find beyond reasonable doubt that the appellant was in the dwelling house in the early hours of the morning.

1. Before leaving this point it is also worth noting a passage from the judgment of Brennan J in Liberato at 515:

"When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is common place for a judge to invite the jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue."

1. To my mind, reading the summing up as a whole, and in particular the extracts quoted above, the learned trial judge did give directions which satisfied the conditions referred to by Brennan J. It is not irrelevant to note that counsel did not seek any redirection on this point in relation to counts 3, 4 and 5, but did seek a redirection (which was given) in relation to counts 1 and 2. Given the terms of the redirection (quoted above) the jury would clearly have understood that what they were then being told applied not only to counts 1 and 2, but also to counts 3, 4 and 5.

1. If further confirmation is needed that the impugned passage did not have a tendency to undermine the onus of proof, reference can be made to another passage in the summing up where the learned trial judge directed the jury as follows:

"If any matters tending to prove an accused person's innocence are raised in his evidence or the evidence of any witness, even if it is a Crown witness, the accused does not have the burden of proving those matters to you.  Rather, the Crown has the burden of disproving them and satisfying you beyond reasonable doubt of the accused's guilt notwithstanding those matters."

1. When the learned trial judge referred to the fact that a consequence of accepting the appellant's evidence was that that would suggest KS and JB had "embarked upon a course of conspiring to bring very serious false allegations against the accused" he was doing no more than stating the obvious. JB had suffered serious stab wounds and there was indisputable evidence he had suffered those injuries whilst in bed. The evidence of KS and JB was that there was significant conversation with the attacker before the ambulance was called, and they were able to identify the attacker as the appellant because each had known him for some time. If the appellant's evidence was accepted, the conclusion was inevitable that KS and JB had made deliberate false allegations against him. Given all the circumstances of the case that was a relevant matter for the jury to take into account when determining what evidence they accepted, and whether or not the essential elements of the offence were proved to their satisfaction beyond reasonable doubt.

1. I am not persuaded that the submissions of counsel for the appellant demonstrate any error in the summing up.

1. The appeal against conviction should be dismissed.

1. JERRARD JA:  In this appeal I have read the reasons for judgment of Williams JA, and respectfully agree with those, and the order His Honour proposes.   I add the following further observations, adopting the nomenclature and description of the relevant evidence given by Williams JA.

1. Photographs were tendered by the prosecution showing that the bed and pillow had blood on it.[1] Sergeant Ridge, who arrived at the house KS and JB occupied about 4.15 am (the call had come in at 3.52 am but there had been confusion about the street name),[2] saw blood on the sheets and pillows, and the knife blade on the bed.  Scenes of Crime Officer Hartland, who went to the house at approximately 5.00 am, saw a flyscreen on the ground and an open window on a room being used as a dining room, and the knife blade, as well as blood on the pillow, and on the sheet.  He also saw a backpack apparently left on the ground outside the house, and found a cigarette butt in it, as well as a small box containing ash as if used to stub out cigarettes.  He took photographs of the injuries to JB, at the hospital, and forensic testing revealed a DNA profile on the swabs taken from the bedding which was consistent with the blood being from JB. 

   [1]At 50.

   [2]At AR 103.

1. Medical examination of JB on 10 February 2005 at the Toowoomba

   
   

   Base Hospital showed that he had three stab marks on the shoulder, of which two were superficial and of which the third had penetrated the lung cavity.  It follows that the evidence other than JB’s and KS’s independently establishes that JB was cut with a sharp instrument at or about the time that he says Mr Keller stabbed him, and JB bled onto the sheets and pillow of the bed in which he says Mr Keller stabbed him.  The defence case actually accepted that some third person (a male) stabbed Mr Keller, because it was simply put to both KS and JB in cross-examination that “the man”, who stabbed JB, was not Mr Keller.  The cross-examiner appeared to accept that a male had attacked JB in the bed in the bedroom, at about 3.00 am that morning, just as both JB and KS said had happened.  The only challenge was whether that was Mr Keller, as they claimed.

1. The other evidence showed that it could well have been Mr Keller.  Apart from the evidence Williams JA has quoted, there was the evidence of a CA, who was staying where she lived, and who said that Mr Keller was not in the house when she went to bed that night (9 February 2005); she went to be bed at about 11.00 pm.

1. Finally, the police officer, who arrived at the house at about 3.50 am, Constable Rachael Smith, described KS as crying, shaking, and visibly upset, not overly coherent, and in a very distressed state.  When they attended at Mr Keller’s residence that morning she saw the washing machine on; this was at around       4.30 am.  His evidence was that he was washing the clothes that he would wear to work had he not been dismissed; he had forgotten that he was dismissed.

1. The jury had heard the evidence of Mr Keller’s hostility to KS, and his earlier threats to her, and of the fact that he blamed KS for his break-up with his ex-partner.  For JB and KS to be falsely accusing Mr Keller of being the person who stabbed JB, then:

·     JB either got KS to stab him in their bedroom; or

·     he got some third person to do so, because it seems almost impossible that he did it himself, and further;

·     

whenever the actual stabbing occurred, KS and JB waited until a little after

3.30 am to contact the police and ambulance, falsely claiming that Mr Keller was with them in their bedroom in that half hour threatening them; and

·     it so happened entirely by co-incidence, and this was something they could not have foreseen or arranged, that the people with whom Mr Keller was staying said, in effect, that he did not come home that night until some time in the early hours of 10 February and after 1.00 am; and

·     two other witnesses said that he had been with them earlier in the evening, affected by drugs and speaking of the consequences of the break-up of the relationship; and

·     one of those witnesses swore he had actually dropped him at the corner of KS’s street, at around 2.00 am.

1. The case is therefore not simply one in which there were conflicting and uncorroborated accounts, with KS and JB telling one story and Mr Keller telling another.  The evidence showed that Mr Keller had the motive and the opportunity to be the attacker, and the victims said he was, and they both knew him.  There was no suggestion of any mistaken identity, only that they were not telling the truth.  If they were lying they went to great lengths to fabricate a false accusation against Mr Keller which fortuitously described his availability.  In those circumstances it was quite in order for the learned judge to remark to the jury that:

“If the accused’s version is correct, you might think that Schaepman and Brent must have made up their story for some reason or other.  If they did make it up, the evidence suggests that they must have embarked upon a course of conspiring to bring very serious false allegations against the accused when Schaepman was in a state of distress on the evidence of one of the police officers and when Brent was suffering from the effects of the attack.”[3]

[3]         At AR 210.

1. That passage is the sole basis of the appeal against conviction and it does not misdirect the jury.  The learned judge had given careful directions on intent, and on the necessity of the jurors being satisfied of the existence of the critical intent at the time of the offences alleged against Mr Keller, and the jury acquitted on the count of burglary, and on the count of attempted murder.  Those acquittals are readily explained on the basis that the jurors were not persuaded beyond reasonable doubt that at the time Mr Keller entered the house he intended to attack KS, and on the basis that they were not persuaded that his intent was to kill her, as distinct from injuring her.  It follows that the jurors did not assume or act on the basis that if they accepted the evidence of KS and JB, that Mr Keller should be convicted on all counts.

1. The learned trial judge had not suggested to the jury that convictions would follow if they accepted the evidence of KS and JB; quite the contrary really, in the directions given on intent.  Nor did the directions given suggest that the jurors should ask themselves “Why would they lie?”, as a means of resolving the conflict between the evidence of KS and JB on the one hand, and Mr Keller’s on the other.  Rather, the judge simply commented, and very moderately too, on the logical result if KS and JB were lying.  

1. The directions about which the complaint is made – those at AR 210 – draw to the jury’s attention that the objective circumstances supported the claim that JB was attacked by a third person and KS was very upset by the attack, and that it happened at about the time those two people said it did.  That was a commonsense observation which the judge was entitled to make to the jury.  The judge would have been entitled to add that the jurors could have regard to the fact that if the claim that it was Mr Keller who attacked them was false, both KS and JB took a great risk in presenting that false claim when they did not know where Mr Keller was at that time.