R v Koenig

Case [2013] SASC 42

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal)

R v KOENIG

Criminal Trial by Judge Alone

[2013] SASC 42

Reasons for the Verdict of The Honourable Justice White

27 March 2013

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - EVIDENCE - CIRCUMSTANTIAL EVIDENCE

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - PROOF AND EVIDENCE - MOTIVE

CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - CIRCUMSTANTIAL EVIDENCE

CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE  - ADMISSIBILITY AND RELEVANCY - FOR PARTICULAR PURPOSE - REBUTTAL OF POSSIBLE DEFENCE

STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - CONSIDERATION OF EXTRINSIC MATTERS - OTHER MATTERS

The accused was charged with the murder of her de facto partner - she pleaded not guilty and elected to be tried by judge alone - the prosecution case was circumstantial and alleged that the accused had administered a fatal dose of amitriptyline to the victim - the defence submitted that death by suicide or accidental overdose could not be excluded as a reasonable possibility - the applicability or otherwise of s 34KA of the Evidence Act 1929 (SA) to out of court statements made by the alleged victim in the present case was also considered.

Held:

(1) Section 34KA is capable of application in the present case despite the fact that the maker of the out of court statement is the alleged victim of the murder charged against the accused - the statements of the victim could therefore be admitted for testimonial purposes (at [211], [216]).

(2)  The prosecution case does not exclude as a reasonable possibility that the victim's death was caused by suicide or by an attempt at self-harm on his part (at [386]).

(3)  The accused is found not guilty of murder, and not guilty of the alternative offence of manslaughter (at [386]-[387]).

Coroners Act 2003 (SA) s 28; Criminal Justice Act 2003 (UK) s 116; Criminal Law Consolidation Act 1935 (SA) s 267; Evidence Act 1929 (SA) s 34KA, s 34KB, s 34KC, s 34KD, s 34P; Serious and Organised Crime (Control) Act 2008 (SA); Statutes Amendment (Serious and Organised Crime) Act 2012 (SA) s 42, referred to.
Bannon v The Queen (1995) 185 CLR 1; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; Edwards v The Queen (1993) 178 CLR 193; Pollitt v The Queen (1992) 174 CLR 558; R v Hissey (1973) 6 SASR 280; R v Hunter [1973] 3 WLR 374; R v Loader (2004) 89 SASR 204; R v Musone [2007] 1 WLR 2467; R v Seigneur (2009) 103 SASR 207; R v Wildy (2011) 111 SASR 189; Walton v The Queen (1989) 166 CLR 283; Wilson v The Queen (1970) 123 CLR 334, considered.

R v KOENIG
[2013] SASC 42

Offence Elements
Matters of Principle and Approach
Background Matters
The Accused’s Relationship with…

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AGLC
R v Koenig [2013] SASC 42
Case
[2013] SASC 42
Decision Date

CaseChat Overview and Summary

In the case of R v Koenig, the accused was charged with the murder of her de facto partner, Mr Ellbourn. The accused pleaded not guilty and opted for a trial by judge alone. The prosecution's case was circumstantial, asserting that the accused had administered a fatal dose of amitriptyline to the victim. The defence argued that the possibility of death by suicide or accidental overdose could not be excluded as a reasonable possibility. The court also considered the applicability of section 34KA of the Evidence Act 1929 (SA) to out-of-court statements made by the alleged victim.

The court had to decide several legal issues, including whether section 34KA of the Evidence Act 1929 (SA) could be applied in the present case, despite the alleged victim being the subject of the murder charge against the accused. Another issue was whether the prosecution's case excluded the reasonable possibility that the victim's death was caused by suicide or an attempt at self-harm on his part. The court also needed to determine if the accused's post-event conduct could be used as part of the circumstantial case against her.

The court concluded that section 34KA of the Evidence Act 1929 (SA) was applicable in the present case, allowing the victim's out-of-court statements to be admitted for testimonial purposes. However, the court found that the prosecution's case did not exclude the reasonable possibility that the victim's death was caused by suicide or an attempt at self-harm on his part. Therefore, the accused was found not guilty of murder and the alternative offence of manslaughter.

The court ordered that the accused was not guilty of murder and not guilty of the alternative offence of manslaughter. The reasoning behind this decision was based on the court's findings that the prosecution's case did not exclude the reasonable possibility that the victim's death was caused by suicide or an attempt at self-harm on his part.

Orders

Orders of the court

Held:

(1) Section 34KA is capable of application in the present case despite the fact that the maker of the out of court statement is the alleged victim of the murder charged against the accused - the statements of the victim could therefore be admitted for testimonial purposes (at [211], [216]).

(2) The prosecution case does not exclude as a reasonable possibility that the victim's death was caused by suicide or by an attempt at self-harm on his part (at [386]).

(3) The accused is found not guilty of murder, and not guilty of the alternative offence of manslaughter (at [386]-[387]).

Background

Background to the litigation

The evidence of two witnesses, Mr Evans and Mr Dougherty, was given from outside the courtroom and transmitted by audio visual link. This was because of the anxiety state of each. No inference adverse to the accused is to be drawn from these arrangements, nor is the weight to be given to their evidence to be influenced by the fact that their evidence was given in this way.Background Matters In May 2011 Mr Ellbourn was 47 years old. He was sometimes known as “Gidge”. His usual employment was that of a truck driver and it seems generally that he had work. There were some periods of unemployment but from 16 November 2010 he had continuous employment with Diamond Brothers as an interstate truck driver. He drove B‑Double trucks from Adelaide to Melbourne and Sydney and was often away for several nights each week. Mr Ellbourn’s literacy and numeracy skills were limited. It is apparent that he would often rely on the accused or his sons Ricky and Timothy when an understanding of written material was required. In 1996, Mr Ellbourn was diagnosed with Adult Attention Deficit Hyperactivity Disorder (ADHD), a condition which, if untreated, results in impaired concentration and increased impulsivity. His ADHD was treated to good effect with the prescribed medications Ritalin or dexamphetamine. Because dexamphetamine may be prescribed only by a psychiatrist, Mr Ellbourn’s general practitioner, Dr Mayne, referred him initially to Dr Craig and then, in March 2010, to Dr Begg. The latter prescribed dexamphetamine at the rate of one to two 5mg tablets three times per day. Dr Begg said that Mr Ellbourn’s continued control of his ADHD depended on his continued use of dexamphetamine with the effect that if he ceased usage he would experience symptoms almost straightaway. The accused, known to many of the witnesses as “Caz”, was born in February 1967 so that in May 2011 she was 44 years old. She had two teenage children but was separated from their father, Mr Szigeti. At least in the financial year ending 30 June 2011 the accused did not have paid employment. There is some evidence that she was in receipt of a Centrelink pension during this period. The accused met Mr Ellbourn in 2008. A relationship developed and later in that year, or early in 2009, Mr Ellbourn moved to live with the accused in her Gabriel Street home, which was a rented property. When spoken to by the police on 12 November 2011, the accused said that her relationship with Mr Ellbourn had commenced soon after they met in April 2008 and ended when Mr Ellbourn left her on Mothers Day 2011 (8 May 2011). A witness (Mr Bonney) said that the accused had told him in May 2011 that her relationship with Mr Ellbourn had continued until Mothers Day, or the day before, when they had argued and she had told him to leave. Mr Ellbourn’s two sons also moved to Gabriel Street with him. Some of the activities of Ricky and Timothy at Gabriel Street (of Timothy in particular) gave rise to some tensions and after a few months, possibly six or so, the accused required Timothy to leave. Ricky also moved out at about the same time. A friend of the accused, Ms Masnicki, said that she had been told by the accused that she had given Mr Ellbourn an ultimatum to the effect that he had to choose between the boys and her. In any event, it seems that, apart from a short period when Ricky returned, Mr Ellbourn lived at 12 Gabriel Street without his sons for at least a year before May 2011.

Evidence

Evidence Before The Court

There was no other evidence in the trial relating to this incident or identifying the “government forms”. I accept Ricky Ellbourn’s evidence that the incident did occur as he described and conclude that it was probably after 9 May. It appears therefore to have involved a cruel deception of Ricky Ellbourn as to his father’s disappearance. However, I do not regard this item of post-event conduct as significant to the issues in the trial, and will say no more about it. Use of the Evidence of Post-event Conduct As I have previously indicated, the accused’s post-event conduct and, in particular, her lies, may be used as part of the circumstantial case against her. Duggan J referred to the use of evidence in this category in R v Loader:[23]Conduct after an offence designed to create the impression that an offence has not been committed or that the accused had no connection with the offence constitutes a well-known category of circumstantial evidence in criminal cases.[24] (Citation omitted)[23] [2004] SASC 234; (2004) 89 SASR 204.[24] Ibid at [30]; 212. The lies suggest an attempt by the accused to create the impression that Mr Ellbourn was still alive and to distance herself from his disappearance. The communications by the accused to Mr Ellbourn’s mobile phones fall into the same category as does the concealment of Mr Ellbourn’s body in the accused’s shed. However, I do not think that the same can be said in respect of the remaining items of post-event conduct discussed in this section. They appear to be in the nature of opportunistic steps taken by the accused to secure a financial advantage for herself, and prompted by her avarice. This conduct may provide evidence of the accused’s knowledge that Mr Ellbourn was dead, but that acknowledgment was made by the accused’s counsel and is, in any event, demonstrated by other evidence which I have accepted. The evidence of the accused’s fraudulent post‑event conduct was admitted under s 34P of the Evidence Act 1929 (SA). While it may be used to support the prosecution circumstantial case on the topics of the accused’s knowledge of Mr Ellbourn’s death, her motive and to counter the suggestion of suicide or self‑harm, it is not to be used as a basis for reasoning that the accused is of bad character or that she has a disposition to the commission of crime.Motive Although the prosecution does not have to establish a motive, the Director pointed to evidence suggesting that the accused had a financial motive. I have already referred to the evidence concerning the accused’s close interest in Mr Ellbourn’s pay and of her conduct after his death in making use for her own purposes of the monies in his bank accounts. There is the evidence of the accused’s endeavours to have Mr Ellbourn’s accrued employment entitlements paid to her, and the action she took to have his 2011 tax return completed and the refund paid into the Westpac account to which she had access. There is also evidence that the accused had a close interest in Mr Ellbourn’s superannuation funds and in the death benefit payable under an insurance policy forming part of his superannuation arrangements. That death benefit was $200,000 and Mr Ellbourn had named the accused as the beneficiary of the benefit.

Decision

Reasons for decision

WHITE J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: WHITE J

Further, on 19 May 2011, the accused used the $250 paid by Diamond Brothers into Mr Ellbourn’s NAB account in part-payment of the Telstra account for her home phone. Preparation and Lodgement of Mr Ellbourn’s 2011 Tax Return I accept the evidence which indicates that, commencing in mid-September 2011, the accused provided instructions to an accountancy firm to prepare Mr Ellbourn’s 2011 tax return, including by providing the documentation relevant to that return. Thereafter, in a number of telephone conversations, the accused sought to expedite the preparation of the return and the payment of the tax refund. Eventually, the tax refund of $2,948.87 was paid by the accountancy firm into Mr Ellbourn’s Westpac account on 31 October 2011. In the period commencing on 4 November 2011 and concluding on 9 November 2011 the accused made a series of withdrawals from that account, until the proceeds of the taxation refund were effectively depleted.Calls to Mr Ellbourn’s Phone The telephone call records for the accused’s phone 4813 indicate communications from that phone to each of Mr Ellbourn’s phones (5477 and 9964) on 11, 12 and 13 May 2011. All but two communications on 11 May 2011 were by SMS message. At least one SMS message was sent from the accused’s phone to each of Mr Ellbourn’s phones on each day. Depending on the proper interpretation of the telephone call records, it is possible that more than one message was sent on 11 May and 12 May. It is possible, but in my opinion improbable, that the accused had provided Mr Ellbourn’s phones to someone else who was using them at the relevant times. I also consider it probable that it was the accused who made the communications, as there is no suggestion that anyone else had use of her phone on those days. Given that Mr Ellbourn was deceased, there was no point to these communications, and the accused knew that. This gives rise to the inference that she was endeavouring to create a false trail, by creating the appearance of circumstances consistent with a belief on her part that Mr Ellbourn was still alive and that she was trying to make contact with him. This was dishonest.Ricky Ellbourn and the “Government” Document Ricky Ellbourn gave evidence that, about one week after guaranteeing his father’s bail at the Christies Beach Police Station on 4 May 2011, the accused arranged to meet him at Aldinga. In the course of their conversation, the accused asked him to forge his father’s signature on some “government forms”. He refused to do so even though the accused offered him some 2 grams of marijuana. There was no other evidence in the trial relating to this incident or identifying the “government forms”. I accept Ricky Ellbourn’s evidence that the incident did occur as he described and conclude that it was probably after 9 May. It appears therefore to have involved a cruel deception of Ricky Ellbourn as to his father’s disappearance. However, I do not regard this item of post-event conduct as significant to the issues in the trial, and will say no more about it. Use of the Evidence of Post-event Conduct