R v Lidster - [2012] SASC 51

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v LIDSTER
Criminal Trial by Judge Alone
[2012] SASC 51
Judgment of The Honourable Justice Kelly
30 March 2012
CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - ATTEMPT - PARTICULAR OFFENCES - ATTEMPTED MURDER
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - EVIDENCE - CIRCUMSTANTIAL EVIDENCE
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - CIRCUMSTANTIAL EVIDENCE - REASONABLE HYPOTHESIS CONSISTENT WITH INNOCENCE - GENERALLY
Criminal trial by Judge alone - accused charged with attempted murder - accused pleaded not guilty - prosecution case that accused caused the injuries to the victim and that it was the accused who was seen by two eye witnesses shortly after the attack - defence case that accused did not cause any of the injuries to the victim and that the numerous and glaring gaps in the evidence raise a reasonable doubt as to whether the accused is the perpetrator of the crime.
Held: accused not guilty - the person who inflicted the injuries on the victim intended to kill her - cannot be satisfied beyond reasonable doubt that it was the accused who inflicted those injuries.

R v LIDSTER
[2012] SASC 51
Criminal: Trial by Judge Alone
KELLY J.

The accused Alan Lidster is charged with the attempted murder of Elizabeth Ann Teo during the evening or early hours of the morning of 1 and 2 July 2011. He is also charged with one count of aggravated unlawfully causing serious harm with intent to cause serious harm in the alternative. On the morning of 2 July 2011 Ms Teo was found lying in the lounge room of her home at Victoria Street, Peterborough in country South Australia, with very serious injuries including strangulation marks around her neck, a stab wound in front of her heart and significant mutilating injuries to the genital area. The accused has pleaded not guilty and elected to be tried by a judge sitting alone.
I make some general comments first before proceeding to deal with the evidence before me.
The prosecution must prove three matters in order to prove an attempted murder:
1That the accused intended to kill Ms Teo;
2That he attempted to carry out that intention; and
3That the doing of the act or acts which constituted the attempt were unlawful.
If I am not satisfied about any one of the elements of the crime of attempted murder the accused is entitled to an acquittal. I bear in mind that he does not have to prove his innocence. He is not to be convicted unless and until I am satisfied of each of the three elements of the crime beyond reasonable doubt.
The case against the accused is entirely circumstantial. It follows that the accused cannot be found guilty of either of the charges he faces unless I conclude that there is no reasonable explanation of the evidence which I accept other than that the accused is guilty of either the crime of attempted murder or the alternative charge of aggravated unlawfully causing serious harm with intent to cause serious harm. To put that more clearly, if there is any reasonable explanation other than that the accused committed the offence of attempted murder or the alternative offence, if I am not satisfied beyond reasonable doubt of all of the elements of the principal offence, then the accused must be acquitted.
In this case the critical issue for determination is whether the evidence satisfies me beyond reasonable doubt that it was the accused and not someone else who caused the injuries suffered by Ms Teo. It is the first element of the charge which has emerged as the real issue in this trial.
The events which give rise to the charges occurred either in the evening of 1 July or the early hours of the morning of 2 July 2011 at the home of Ms Teo in Peterborough.
The prosecution allege that it was the accused who caused the injuries to Ms Teo sometime during the night of 1 July and early hours of the morning of 2 July 2011 after her friend Alan Moyle left the home earlier in the evening of 1 July after a disagreement with Ms Teo. All three, that is the accused, Mr Moyle and Ms Teo, had been previously drinking together in Ms Teo’s house until an argument between Mr Moyle and Ms Teo erupted which caused Mr Moyle to leave the house and sleep in his utility on a property across the road from Ms Teo’s house. There is no eye witness to the events which occurred after Mr Moyle left Ms Teo’s house, which on the evidence could have been anywhere between about 10.00 pm and midnight. Ms Teo, who awoke in a shocking condition the next morning with multiple injuries to her head and body, cannot remember what happened after Mr Moyle left the home. There is quite simply a blank in her memory between that time and when she awoke the next morning and found herself lying on the floor of her lounge room, bloodied and naked but for a pair of socks.
The accused’s movements after he was last seen in the home of Ms Teo during the late evening of 1 July 2011 and when a local resident named Terry Slattery saw him walking up Ellen Street around 7.00 am the next morning are unknown. The prosecution case is based on the sighting of the accused by Mr Slattery and the evidence of another local resident named Stephanie Mitchell. Ms Mitchell saw a man in Moscow Street not far away from Ellen Street at about 7.30 am on 2 July 2011. The man was carrying something which looked like a sleeping bag the colour of a blue tarpaulin and a knife with a shiny blade. On the prosecution case the man seen by Ms Mitchell was the accused.
A knife (P6) located on 4 July 2011 in a yard near where Ms Mitchell first sighted the man, was identified by both Ms Teo and Mr Moyle as one of a set of matching knives kept in the kitchen at Ms Teo’s home. That is the prosecution case.
The defence case is that the accused did not cause any of the injuries to Ms Teo and the prosecution have not established to the requisite degree that it was the accused who was responsible for causing those injuries to Ms Teo. On the defence case there are any number of other reasonable possibilities as to how Ms Teo sustained the injuries described by the doctors. Furthermore, there are numerous and glaring gaps in the evidence presented by the prosecution which raise a reasonable doubt as to whether the accused is the perpetrator of this crime.
It is my responsibility to make appropriate findings of fact and then consider what inference or inferences can be drawn from the totality of the facts which I find proved. Finally, I will consider whether the totality of the evidence satisfies me beyond reasonable doubt that the accused is guilty either of the crime of attempted murder or of the alternative of aggravated unlawfully causing serious harm with intent to cause serious harm.
The two principal witnesses called by the prosecution were Ms Teo and Mr Moyle.
Ms Teo is a 42 year old woman who has been a resident of Peterborough for some years. Prior to July 2011 she had been in a relationship with Mr Moyle but at the time when these events occurred that relationship had ended, however the friendship continued and Mr Moyle was a frequent visitor and frequently stayed over at Ms Teo’s home. On 1 July 2011 Ms Teo and Mr Moyle went to Port Pirie for the day and arrived home in the early evening. They sat in the lounge room and had some alcoholic drinks. It is plain from the evidence that both Ms Teo and Mr Moyle drank a considerable quantity of medium strength beer that evening, possibly between six to eight cans, and later after the accused arrived shared with him the contents of a bottle of port. The evidence establishes that the accused arrived at Ms Teo’s home somewhere around 8.00 to 9.00 pm. Mr Moyle let him in by the front door and the three of them sat down around a table in the lounge room and continued to drink. Ms Teo acknowledged that after her consumption of the beer and the port that evening she was affected a little bit. At some stage an argument between Mr Moyle and Ms Teo erupted over whether Mr Moyle had previously agreed with the accused to travel with him on the weekend to pick up a washing machine that the accused had offered to sell to Ms Teo and/or Mr Moyle for the sum of $100. The details of the argument are not important but it is clear that as a result of that argument Mr Moyle left the house.
Ms Teo’s next memory is waking up on the floor naked and covered with blood. She described in evidence her position on the floor which was near to the combustion stove in the lounge room. She said she heard footsteps in the kitchen and someone leaving. From that evidence I infer that whoever was in the house at that time left by the back door. Ms Teo managed to telephone Mr Moyle twice. Phone records reveal that the calls to Mr Moyle from Ms Teo’s phone were made at 7.47 am and 7.48 am. Mr Moyle, who was asleep in his utility across the road from Ms Teo’s house, did not hear the calls nor did he bother to check his missed calls for apparently a period of some days. Ms Teo managed to get to the bedroom and wrap herself in a blanket before lying down again in another position in the lounge which she identified on the photographs.[1]
[1] Exhibit P1.
Mr Moyle was quite vague and imprecise about times, however he said it was about 10.30 am when he woke up on the morning of 2 July 2011, had a cigarette and then went over to Ms Teo’s property. He said the animals were needing to be fed, Esmeralda the goose was honking and carrying on and the dog was running about. His estimate of the time he spent in the backyard before he even went inside the house was about 15 to 20 minutes. He then went inside the house and found Ms Teo lying on the floor covered in an old yellow blanket. She was naked. He could see she had blood coming from her mouth and she was making very soft moaning sounds. He grabbed a mattress which was lying on its side in the lounge and laid Ms Teo on the mattress. He then got another blue blanket from the bedroom and put that over her. He went to the kitchen to get her some water and sat with her there for a second, he then rang a friend, Jacqueline Zauch. He said she arrived two or three minutes after the phone call. Mr Moyle’s explanation for not calling the ambulance himself was because he had had a bad experience two years earlier trying to call the ambulance for Ms Teo when she was sick.
Mr Moyle identified the knife found (P6) as one of a set of knives he had obtained from the meatworks where he works in Peterborough. The second knife (P5) which was also tendered by the prosecution contains a nick which distinguishes it from P6. Mr Moyle explained that he and his friend Keith Colley caused the nick on P5 while working on something at the meatworks.
If Mr Moyle’s evidence about the timing of his movements on the morning of 2 July 2011 is accurate then there is about an hour between approximately 10.30 am and 11.30 am when he rang Ms Zauch which is unaccounted for. Either Mr Moyle is inaccurate about the length of time he spent in the backyard feeding the animals or he is inaccurate about what he did after finding Ms Teo in the house when he went inside. The phone records from his phone and Ms Teo’s mobile phone tendered at the trial[2] raise more questions than they answer in relation to Mr Moyle’s evidence about his movements before and after discovering Ms Teo. There appear to be a number of calls made to and from Mr Moyle’s phone and Ms Teo’s phone between 10.16 am and 11.26 am when Mr Moyle telephoned Ms Zauch for which there has been no intelligible explanation provided either by Ms Teo, Mr Moyle or anybody else from the relevant phone companies who may had shed light on these apparent calls. One explanation for the apparent discrepancy in the evidence is that Mr Moyle has not been accurate about his time frames. Another explanation is that he has not been totally candid with the Court. Yet another explanation is that the apparent phone calls were endeavours by Ms Teo to contact various friends during the period while she was lying injured in the lounge room. The point is that there are a number of unanswered questions about what happened in the lounge room at Ms Teo’s home on the morning of 2 July 2011 before Ms Zauch arrived and took matters in hand by calling the ambulance within minutes of her arrival.
[2] Exhibit P16.
Although it is clear from all of the evidence that someone has made some efforts to clean up the lounge room before the arrival of the ambulance and the police, I am unable to make any finding about who that person was.
As I have mentioned, two residents of Peterborough were up and walking in the streets of Peterborough early on Saturday morning 2 July 2011. One of those people, Mr Slattery, was driving to do some early morning work at the Junction Hotel in Peterborough sometime between 6.50 am and 7.10 am. Mr Slattery knows the accused. As he was driving down Ellen Street, Peterborough on his way to the Hotel he saw the accused about half way up Ellen Street. He was carrying in one hand a cask and a sort of shirt wrapped up with what he thought was a six pack in the other. He described him as wearing a brown sort of flannelette lumber jacket and jeans, however he saw him only for a period of five seconds. He was quite certain about the description of the jacket and did not agree that the accused had on a dark coloured jumper. Mr Slattery acknowledged that the work he performed at the local hotel did not require him to attend at the hotel during any specific hours and he was able to be quite flexible about when he went to and from the hotel.
Ms Stephanie Mitchell is the 17 year old daughter of Mr Steven Mitchell. She stayed overnight at a friend’s house in Princess Street, Peterborough and set out for home by foot at about 7.30 am. She described seeing a man near the corner of Moscow Street and Pine Street, Peterborough as she was walking from the other direction down Moscow Street. He was on the other side of the road to her but at one point when their paths crossed and she was directly opposite him, he looked at her and glared and then walked away. He was carrying what she described as something blue under his arm which she thought looked like a rolled up sleeping bag the colour of a blue tarpaulin and he pulled something silver and raised it up and she described that as a knife blade. He then put it away and walked on. Ms Mitchell’s description of the man she saw was someone between the age of 40 and 50 with grey hair, a little bit unshaven and about 170 cm tall. She said he was wearing a red t-shirt that was long sleeved with black stripes, pretty much like farmers use and faded jeans and black boots.
Unfortunately neither Ms Mitchell nor any of the witnesses were asked to look at either the dark woollen jumper seized from the accused on 2 July 2011[3] or the jacket seized from the accused’s residence on 6 July 2011.[4] The failure to question Ms Mitchell about that matter is a critical matter which I have taken into account when determining what if any inference I should draw from Ms Mitchell’s evidence.
[3] Exhibit P11.
[4] Exhibit P19.
After a conversation with his daughter about what she saw, Mr Mitchell decided to go down Moscow Street and have a look around in the vicinity of where his daughter saw the man. There, about 10 metres inside the fence of a resident named William Revell who lived at 101 Moscow Street, he saw a knife. The knife (P6) was tendered in evidence and is in all respects, save for the nick, identical to the knife (P5) which came from Ms Teo’s kitchen. Mr Revell, the occupant of 101 Moscow Street, confirmed that the knife was not his. I am satisfied beyond reasonable doubt that that knife (P6) came from Ms Teo’s kitchen.
The finding of the knife by Mr Mitchell on 4 July 2011 prompted the local police officer to retrieve that knife. I infer that it was the finding of the knife (P6) in Moscow Street that reinvigorated what can only be described as a lethargic police investigation up to that point. The accused was spoken to again on that day and charged with the two charges he currently faces.
Dr Peter Bautz is a trauma surgeon employed at the Royal Adelaide Hospital. He saw Ms Teo when she was brought to the hospital on the afternoon of 2 July 2011, having been airlifted there.
I was impressed with this witness. His experience as a trauma surgeon in South Africa is extensive. In particular, in the area of penetrating stab wounds and hangings by ligature.
Ms Teo was admitted to hospital with very grave injuries. She had very significant strangulation marks compatible with a rope. There was one main one and two others fairly parallel which went almost completely around her neck. In addition she had petechial haemorrhages of both eyes consistent with strangulation. Dr Bautz expressed the view that the marks on Ms Teo’s neck were amongst the most significant strangulation marks that he had seen in a survivor. They were not just bruises commonly seen in strangulation attempts but so significant they had actually abraded the skin off, leaving relatively deep wounds of the skin underlying the injuries by a few millimetres. He also observed a single stab wound of the left breast on the lower medial side of the breast in front of the heart. On closer examination he found a scratch going from the stab downwards, which suggested that the knife had slipped either before or after going into the skin. From the shape of the stab wound the direction of the wound looked like it was going downwards and not perpendicular inwards. Fortunately Dr Bautz took his own photographs and I was able to view those injuries described by him. Dr Bautz also described a small pneumothorax which had collected around the lung on the left hand side. In his opinion there was a high chance that the air around the lung was a result of the penetrating stab wound. There was also a haematoma near the heart which was probably related to the penetrating stab wound in front of the heart. In addition to those injuries Dr Bautz described a brachial plexus injury causing significant weakness in both sides of the body. He said this was almost certainly to do with compression of the neck arising out of the events of 1 and 2 July 2011 and not related to the earlier brain damage suffered by the victim Ms Teo some years earlier.
Finally Dr Bautz described and photographed after surgery the damage to the genital area of Ms Teo.
In Dr Bautz’s opinion the complete loss of memory suffered by Ms Teo about the events after Mr Moyle left her house on the night of 1 July 2011 until the next morning is highly likely to be due to hypoxia as a result of the strangulation.
Dr Maureen Gallagher’s statement was admitted by consent. Dr Gallagher described thoroughly and in detail the injuries which she observed on Ms Teo upon examination on 2 July 2011. Dr Gallagher saw Ms Teo at the time of her admission and some days later. Although Dr Gallagher also took photographs of her observations, for reasons which escape me, the prosecution declined to produce those photographs or the photographs taken by Dr Bautz until I requested at the very least to see Dr Bautz’s photographs in evidence. Given that the photographs taken by a police officer, Constable Rogers, on 6 July 2011 some four days later did not show all of the injuries suffered by Ms Teo, the failure by the prosecution to produce these photographs is somewhat surprising.

Upon examining Ms Teo Dr Gallagher found deeply incised wounds which caused partial avulsion of the anterior half of the external genitalia. There was foreign material found in Ms Teo’s vagina which in Dr Gallagher’s opinion was either pushed into the vagina by Ms Teo or another person. In Dr Gallagher’s opinion the incised genital wounds were caused by a sharp object such as a knife or broken glass or some other sharp object.
It is evident from the totality of the medical evidence that Ms Teo suffered significant and life threatening injuries which, without medical intervention, would likely have resulted in her death.
There are a number of glaring deficiencies in the prosecution case. I have already pointed out the questions which must remain unanswered about the sequence of events in the house at Victoria Street on the morning of 2 July 2011 before Ms Zauch was called.
I have referred to the fact that no witness has commented on any of the clothing said to have been worn by the accused that night. That gap in the evidence is critical insofar as the evidence of Ms Mitchell is concerned. The knife[5] was never shown to any of the doctors who examined Ms Teo. It seems only to have occurred to the prosecutor to attempt to elicit that evidence in re-examination of Dr Bautz. I disallowed that line of questioning as I considered that at that late stage in proceedings the questions were unfair to the doctor and came far too late to be of any real assistance to me in the determination of the issues I have to decide.
[5] Exhibit P6.
I find that the accused went to Ms Teo’s house sometime after 9.00 pm on the evening of 1 July 2011. He was driven there in a taxi by Anita Stewart. He is the last person seen with Ms Teo that evening before she was found the next morning by Mr Moyle with extensive injuries.
I am satisfied that Ms Teo suffered grave injuries as a result of an attack upon her sometime after Mr Moyle left her home at Victoria Street, Peterborough in the evening of 1 July 2011 and before 7.47 am on 2 July 2011 when Ms Teo made two unsuccessful attempts to contact Mr Moyle on her mobile phone. The nature of the injuries suffered by Ms Teo in my opinion point to only one conclusion and that is that whoever attacked her that evening attempted to kill her. The strangulation marks found on Ms Teo’s neck were described by Dr Bautz as follows:[6]
A.I have seen many strangulations and strangulation attempts and these were very significant marks. They were extremely obvious and they were probably among the most significant strangulation marks that I have seen in a strangulation attempt victim. They were not just bruises that we most commonly see but these were so significant that they had actually abraded the skin off and they were kind of relatively deep wounds of the skin underlying the injuries by a few millimetres.
[6] Transcript 276.
The location, angle and depth of the stab wound to the front of the heart also points to the conclusion that the stab wound was designed to penetrate the heart and therefore kill Ms Teo.
The other main injuries which include the mutilation of the genital area of Ms Teo and the cutting of her hair point to a sadistic and perverted attack on her. It is the combination of the injuries which leads me to the conclusion beyond reasonable doubt that whoever was Ms Teo’s assailant, that person attempted to kill her at the time when those injuries were inflicted.
I infer from the evidence found by the crime scene examiner on 2 July 2011 and from Ms Teo’s evidence that someone has to some extent cleaned up inside the room after the injuries on Ms Teo were inflicted. I cannot make a finding beyond reasonable doubt about who that person was, however in all probability the person responsible for some of the clean up is also responsible for the fact that the blue tarpaulin in Ms Teo’s lounge room and some of her clothing was missing the next day and remains missing. The person who disposed of the knife (P6) found in Mr Revell’s yard on 4 July 2011 is probably the person who inflicted the injuries on Ms Teo, however, I cannot be certain about that fact. The knife (P6) was never shown to any of the doctors who observed Ms Teo’s injuries and I do not have the benefit of any expert opinion as to whether the cuts to Ms Teo’s body could have been made with that particular knife. This is unfortunate as the stab wound in the region of the heart has some distinctive characteristics. The knife (P6) itself is quite distinctive in appearance.
I also consider that it is probable that the man seen by Ms Mitchell on 2 July 2011 in Moscow Street is the person who disposed of the knife (P6) in Mr Revell’s yard.
I am satisfied that Mr Terry Slattery saw the accused in Ellen Street sometime about 7.00 am on 2 July 2011. Mr Slattery observed the accused as he was walking along the street carrying a cask and a sort of shirt wrapped up and a six pack in the other arm. I am mindful that Mr Slattery saw the accused for a period of five seconds as he was driving past him.
Ms Mitchell’s description of the man she saw is, broadly speaking, consistent with the appearance of the accused, nevertheless her description of the clothing worn by the man raises a doubt in my mind whether Ms Mitchell saw the same person as Mr Slattery. As earlier mentioned, Ms Mitchell was not asked to see if she could identify either the jumper[7] or the jacket[8] seized from the accused’s home. Her answer might have assisted me one way or another to determine this issue.
[7] Exhibit P11.
[8] Exhibit P19.
There are simply too many gaps in the evidence for me to safely infer that the person seen by Ms Mitchell is one and the same person, namely the accused, who Mr Slattery saw within the same hour in a nearby street. I simply cannot draw that inference beyond reasonable doubt.
In conclusion Ms Teo suffered grave life threatening injuries sometime during the night of 1 and 2 July 2011. The person who inflicted those injuries on Ms Teo intended to kill her. A more thorough investigation and prosecution might have assisted me to determine some of the important issues which have arisen in this trial. However the absence of evidence cannot be held against the accused.
I cannot be satisfied beyond reasonable doubt of the accused’s guilt. I find him not guilty.