R v Lowe
[2016] SASCFC 118
•19 October 2016
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v LOWE
[2016] SASCFC 118
Judgment of The Court of Criminal Appeal
(The Honourable Justice Peek, The Honourable Justice Nicholson and The Honourable Justice Doyle)
19 October 2016
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - ADMISSIBILITY - OF EVIDENCE AS TO UNRELIABILITY
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - MODES OF IDENTIFICATION - DNA EVIDENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - FRESH EVIDENCE - AVAILABILITY AT TRIAL, MATERIALITY AND COGENCY - AVAILABILITY AT TRIAL - EVIDENCE IN POSSESSION OF CROWN NOT DISCLOSED TO DEFENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW - MISDIRECTION AND NON-DIRECTION
Application for permission to appeal against conviction.
The appellant was convicted by a jury of attempted murder. The sole contested issue was whether the prosecution had proved beyond reasonable doubt that the assailant was the accused.
The prosecution case relied primarily on high probability DNA matches between various items found at the crime scene (including the weapon) and the appellant, which only emerged years after the attack when the appellant’s DNA profile came to be entered on a police database in relation to an unrelated matter.
The defence case relied on Ms Clarke’s initial statement to police and her evidence in Court that she did not recognise the assailant as the defendant, even though she knew him, and that she assisted in the production of a composite picture which was inconsistent with the appearance of the appellant. In response, the prosecution adduced expert medical evidence to support the prosecution case that Ms Clarke’s belief that the assailant was different to the appellant was a mistaken belief caused by her head injury, and associated retrograde amnesia, arising from the attack. The defence in turn called a neuro-psychologist to give contrary expert evidence.
On appeal, the appellant asserted that relevant material relating to a miscoding of software used in the DNA testing was not disclosed to the defence by Forensic Science SA. In addition, the appellant made an application to call fresh evidence in the form of a new expert report to contest aspects of the prosecution DNA evidence.
Per Peek and Doyle JJ (Nicholson J agreeing) (granting permission to appeal on certain grounds and dismissing the appeal):
1. In the present circumstances, it was open to the prosecution to lead expert evidence as to the mental condition of one of their witnesses to explain her inability to give reliable evidence.
2. The directions by the trial Judge made the jury well aware of the nature of their task in resolving conflicts in relation to the expert evidence. No miscarriage of justice occurred.
3. The Judge adequately directed upon the issues as to non-recognition evidence, alibi and the evidence of members of the public.
4. The trial Judge made adequate reference to the defence case, and the jury were well placed to resolve conflicts in the evidence.
5. The admission of evidence relating to the behavior of the victim’s dog did not lead to a miscarriage of justice. It was but one part of the prosecution circumstantial case; the present is distinguishable from cases where evidence of the behavior of a dog is adduced to directly establish a matter in contest.
6. In an asserted case of non-disclosure by the prosecution, it is necessary to consider what impact, if any, the evidence might have had in the context of the other evidence led at trial. Any non-disclosure of relevant information relating to the DNA testing in the present case did not have sufficient forensic significance to constitute a miscarriage of justice.
7. It was open on the evidence for the jury to conclude beyond reasonable doubt that the appellant was the assailant. None of the evidence pointed to by the applicant, weighed singly or cumulatively, constituted a solid obstacle to a conviction by the jury. On an independent review of the evidence and applying the precepts in M v The Queen (1994) 181 CLR 487, the Court is satisfied that the verdict is not unreasonable.
Per Peek and Doyle JJ (Nicholson J agreeing) (dismissing the application to adduce fresh evidence):
8. The requirements for the admission of fresh evidence are not satisfied. The evidence sought to be adduced by the appellant does not establish, or establish the likelihood of, error in the prosecution DNA evidence given at trial, and the appellant did not lose a significant chance of an acquittal as a result of its absence.
M v The Queen (1994) 181 CLR 487, applied.
R v Ibrahim (2003) 7 VR 141; Velkoski v The Queen (2014) 45 VR 680; R v Baden-Clay [2016] HCA 35; R v Place (2015) SASR 467; Toohey v Metropolitan Police Commissioner [1965] AC 595; Farrell v The Queen (1998) 194 CLR 286; Velevski v The Queen (2002) 76 ALJR 402; Churchill v Badenochs Transport Ltd (1971) 1 SASR 63; R v Benecke (1999) 106 A Crim R 282, discussed.
R v Hillier (2007) 228 CLR 618; R v Drummond (No 2) [2015] SASCFC 82; Grey v The Queen (2001) 75 ALJR 1708; Gallagher v The Queen (1986) 160 CLR 392; Mickelburg v The Queen (1989) 167 CLR 259; Winslett v The Queen (1992) 60 SASR 1; R v Reci (1997) 70 SASR 78; Tichborne v Lushington (1871-2) Court of Common Pleas (trial); R v Castro (1873-4) Court of Queens Bench (trial); Castro v The Queen (1881) 6 AC 229, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"availability of evidence", "reasonable to convict"
R v LOWE
[2016] SASCFC 118Court of Criminal Appeal: Peek, Nicholson and Doyle JJ
PEEK and DOYLE JJ.
Application for permission to appeal against a conviction of attempted murder.
On the evening of Tuesday 19 August 2003, Ms Clarke was alone at her home in Port Lincoln when she was subjected to a vicious attack during which she was repeatedly beaten about the head with a length of heavy duty aluminium pipe (the weapon) in circumstances from which an attempt to murder her could be inferred beyond reasonable doubt (the attack). Her assailant was then unknown.
Mr Lowe, to be referred to as the appellant, was living in Port Lincoln and was known to Ms Clarke. When able to be questioned by police, Ms Clarke did not suggest that the assailant was the appellant (or was anyone else she knew). Rather, she gave a description, and assisted in the production of a composite picture, which were inconsistent with the then appearance of the appellant in a number of respects.
The appellant was not suspected of being the assailant until after October 2012 when a sample of his DNA (which had been taken by police in September 2012 in relation to a quite separate matter) was entered into a police database and was unexpectedly found to match DNA results obtained during the attack crime scene investigation. The appellant was arrested on the present charge on 5 April 2013.
On 30 July 2015, the appellant was convicted by unanimous jury verdict of the offence of the attempted murder of Ms Clarke. This application for permission to appeal against conviction was referred by a single Judge to this Court which on 20 May 2016 heard full argument on both permission and the argument that would be put on the proposed grounds of appeal and reserved judgment. We would grant permission to appeal on proposed grounds 1, 2, 3, 4, 4B, 5 and 6 but would reject each of those grounds of appeal and dismiss the appeal. We would refuse permission to appeal on the remaining proposed grounds 1A, 3B, 4A and 7. Our reasons follow.
The factual background and the course of the trial process
As at 19 August 2003, Nanette Clarke was 48 years old and lived at 20 Bay View Road Port Lincoln (Bay View Road) with her partner Neil Evans, her 21 year old son, Damien Clarke and a Cocker Spaniel dog called “Rusty”.
Neil Evans worked as a professional fisherman and kept his boat and fishing equipment at a house he owned at 1A Hillside Grove (Hillside Grove), a distance of about 2.3 kilometres from Bay View Road. In 2003, Damien Clarke was leasing Neil Evans’ fishing licence and on most (though not all) occasions when the boat was taken out, both men went fishing together.
The appellant had recently completed a cooking apprenticeship and was a chef at the Port Lincoln Hotel. He lived at Hillside Grove in a relationship with Ms Jodi Evans, Neil Evans’ daughter, who worked as a dental nurse. The appellant and Jodi Evans had moved to Port Lincoln together in February 2003.
The appellant stood trial before a jury twice and was represented by the same barrister, Ms Stokes, at both trials; they were reasonably short, each lasting nine days. At the first trial, which commenced on Monday 2 June 2014 and concluded with a jury disagreement on Thursday 12 June 2014 (the first trial), the appellant gave evidence in which he denied any connection with the crime. At the re-trial, which commenced on Monday 20 July 2015 and concluded with a unanimous guilty verdict on Thursday 30 July 2015 (the second trial), the prosecution tendered his (edited) evidence from the first trial and he did not give evidence.
There was no dispute at trial that the piece of heavy duty aluminium pipe found abandoned outside at the crime scene (exhibit P11) was the weapon used to attack Ms Clarke; that the injuries suffered amounted to grievous bodily harm; and that the attack amounted to an attempted murder. The sole issue at trial was whether the prosecution could prove beyond reasonable doubt that it was the accused who attacked her.
The appellant contends that the verdict is unreasonable (ground 6 of appeal) and applies to call fresh evidence concerning the DNA results (ground 7 of appeal).
However, there are five further proposed grounds (with numerous sub-grounds and alternatives) which assert miscarriage of justice by reference to complaints concerning admission of evidence and the content of the summing up, with no objection having been taken at trial to any of such matters. No assertion of incompetence of trial counsel has been made.
While the fact that trial counsel did not object does not prevent interference by an appellate court if there is a real risk of miscarriage of justice, it is nevertheless relevant to the assessment of whether there is such a risk.[1] As stated by Eames AJ for the Victorian Court of Criminal Appeal in R v Ibrahim:[2]
It is important when considering arguments on appeal, especially when the trial was conducted by different counsel to those arguing the appeal, that the reality of the trial not be lost, and that the issues on which battle was joined before the jury not treated as of mere passing relevance to an academic appellate debate.
[1] R v Loader (2004) 89 SASR 204, 217 [54] (Duggan J with whom Besanko and Anderson JJ agreed). See also La Fontaine v The Queen (1976) 136 CLR 62, 73; Chamberlain v R (1983) 72 FLR 1, 12; R v Aziz [1982] 2 NSWLR 322, 331; R v Carbone (No 2) (1976) 14 SASR 280, 287-8; R v Ormond [2012] SASCFC 130, [28]-[31] (Gray J; see also comments by Peek J at [93]-[96]); Farrell v The Queen (1998) 194 CLR 286.
[2] (2003) 7 VR 141, 154 [50]. Vincent and Eames, JJA and Ashley, AJA.
And more recently, that court stated in Velkoski v The Queen:[3]
[206] When an accused person has been convicted, and appeals, there is often an attempt to present the defence case in a new way. This appeal provides an example of the necessity, when evaluating criticisms of the trial process and the trial judge’s directions to a jury, to relate those criticisms to the manner in which the trial was conducted. The course followed by the defence throughout the trial has a profound bearing upon the evaluation of the complaints now made concerning the trial.
[3] (2014) 45 VR 680, 729.
In the present case, there has been in some respects an attempt to litigate an appeal with little regard to what occurred at trial. That approach was coupled with repeated arguments which, in effect, urged that a particular fact or circumstance be considered without reference to the whole of the circumstantial evidence. Such arguments ignore the principle that all of the circumstantial evidence is to be considered, as explained by the High Court in R v Hillier[4] and more recently in R v Baden-Clay.[5] Thus in R v Baden-Clay, the judgment of the court brought the above principles together in the following passage:[6]
For an inference to be reasonable, it “must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence”[7] (emphasis added). Further, “in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence”[8] (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal.[9]
Further, a criminal trial is accusatorial but also adversarial. Subject to well‑defined exceptions, “parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue.”[10]
[4] (2007) 228 CLR 618.
[5] [2016] HCA 35.
[6] [2016] HCA 35, (French CJ, Kiefel, Bell, Keane and Gordon JJ).
[7] Peacock v The King (1911) 13 CLR 619 at 661, quoted in Barca v The Queen (1975) 133 CLR 82, 104.
[8] R v Hillier (2007) 228 CLR 618, 637 [46]; [2007] HCA 13 (footnote omitted).
[9] R v Hillier (2007) 228 CLR 618, 638 [48]. See also Chamberlain v The Queen [No 2] (1984) 153 CLR 521, 535; [1984] HCA 7.
[10] Nudd v The Queen (2006) 80 ALJR 614, 618 [9]; 225 ALR 161, 164; [2006] HCA 9. See also Ratten v The Queen (1974) 131 CLR 510, 517; [1974] HCA 35; Doggett v The Queen (2001) 208 CLR 343, 346 [1]; [2001] HCA 46.
GROUND 6 OF APPEAL: THE VERDICT IS UNREASONABLE
The proposed ground of appeal asserting unreasonableness is as follows:
6. The verdict is unsatisfactory, unreasonable and against the weight of the evidence.
Particulars
6.1There was no identification evidence, or direct evidence, which identified the Appellant as the perpetrator of the crime and the direct evidence which was given indicated against the Appellant being the perpetrator of the crime.
6.1.1 The victim knew the Appellant but did not identify him and provided a description and composite photo inconsistent with his description
References
-Evidence from the victim: T.136-T.143, T 171.30, T 172.28, T.176.
-Exhibit marked “P 19”.
6.2There was evidence from other witnesses in Port Lincoln who observed an unknown third person who matched the description of the assailant given by the victim;
References:
- Evidence of Robyn Kilgour T.609.34 – T610.13
- Exhibit marked “P 19”
6.3There was evidence of an unknown male, “Unknown Male A”, whose DNA was present at the scene of the crime;
References
- Evidence of Dr Donnelly T.421.25, T.429.18, T.431.12, T. 432.26, T.433.13, T.446.21-T.447.
6.4The jury was not provided with a statistical weighting for the contribution of the DNA profile of Unknown Male A attributed to the items found at the crime scene;
6.5The victim gave evidence that she fought with the assailant and she believed she scratched his face. There was no evidence that the Appellant had scratch marks on his face following the alleged attack;
References:
- T.32.14, T.137.18, T171.15-T171.24, T.373, T.397.6, T.402.24
6.6Other witnesses gave evidence that they observed unusual vehicles or persons on their quiet country street at or around the time of offence.
References:
- Evidence of Terrence Hage T.611
- Evidence of Kent Hage T.616
- Evidence of Kisha Cummings T.619
- Evidence of Jason Leech T.635
6.7.The prosecution case was that the accused was the sole assailant and as such the evidence was incapable of explaining:
6.7.1 How the victim’s body came to be located inside her motor vehicle; and
6.7.2 How the victim’s body was moved by her assailant from the lounge/kitchen area into her motor vehicle without there being evidence of any blood staining (caused by dragging of the victim’s body or other movement).
6.8There was no evidence to exclude the possibility that the physical evidence located at the crime scene originated from the victim’s home and not the home of the Appellant;
6.9The DNA evidence of the Appellant’s contact DNA on the handle of a bucket located near where the attack on the victim occurred was incapable of excluding an innocent explanation for the presence of that contact DNA;
6.10The presence of an unknown person’s DNA, “Unknown Male A”, at the crime scene when combined with:
6.10.1 The victim’s evidence of describing someone other than the Appellant as the perpetrator; and
6.10.2 The absence of blood staining or drag marks (from the kitchen where the attack occurred to the motor vehicle where the victim was found) to explain how the victim was located in the vehicle away from where the attack occurred; and
6.10.3 The possibility that all of the physical evidence located at the crime scene could have originated from the victim’s home;
The prosecution case that the assailant was the appellant in overview
The prosecution at trial, and on appeal, conceded that Ms Clarke knew the appellant and that she did not recognise her assailant as the appellant, or as anyone else she knew; rather, she gave a description, and assisted in the production of a composite picture, which were inconsistent with the then appearance of the appellant in a number of respects (the non-recognition evidence).
However, the prosecution case can be seen as essentially consisting of two parts. The first part is the circumstantial evidence including (but not limited to) very high probability DNA matches with the appellant which together constituted a highly compelling case against the appellant.
The second part of the prosecution case is expert medical evidence demonstrating that Ms Clarke’s later belief that the appearance of the assailant was different from that of the appellant was erroneous and was due to brain damage caused by the attack adversely affecting her memory process. The prosecution contends that it was well open for the jury to reject the defence expert evidence (that of a neuro-psychologist, Mr Reid) and to accept both the prosecution medical expert evidence and its circumstantial case and find the appellant guilty beyond reasonable doubt. (The question of the admissibility of the prosecution medical evidence is dealt with separately below in the context of ground 1 of appeal.)
In overview, the prosecution case against the appellant was:
-that the appellant, whilst wearing disposable gloves and in possession of a balaclava and a green bag containing certain items, attacked Ms Clarke with the weapon inside the house at Bay View Road;
-that while doing so, the appellant was bitten on a gloved hand by Rusty the dog, thereby ripping one of his disposable gloves. Several detached pieces of it were found at the crime scene and analysis of one piece found on the lounge room floor (near dog urine and faeces) showed high probability tri-partite DNA matches to each of the appellant, Ms Clarke and Rusty the dog;
-that Rusty’s biting of the appellant’s hand resulted in him depositing blood droplets on the kitchen floor, bi-fold doors and lounge room carpet (which blood deposits all showed high probability DNA matches to the appellant);
-that the appellant attempted to clean the scene and went to the laundry and got a bucket and sponge which were found in the lounge room (the appellant thereby leaving a further high probability DNA match on the bucket handle);
-that the appellant left on the dining room floor a balaclava (which was linked to the appellant by a further high probability DNA match);
-that the appellant was interrupted by the unexpected early return of Neil Evans and Damien Clarke and fled through the lounge sliding door, taking with him the various items in the green bag and the weapon;
-that the appellant went around the back of the house and up the western side, leaving Ms Clarke’s blood on the downpipe and on the aluminium capping as he jumped the fence to escape;
-that the appellant then dropped the green bag and the weapon (where they were later found by police) and proceeded on foot back to the Hillside Grove address; and
-that the weapon and items in the green bag were later linked to the appellant by further high probability DNA matches.
When properly understood, the prosecution circumstantial case that the appellant was the assailant was highly compelling. It consisted of five categories of interlinking and mutually reinforcing bodies of evidence which in overview were as follows.
The first category of evidence was that all of the relevant material and items found at the crime scene, being the weapon (comprising the aluminium pipe to which grey foam was attached by grey duct tape), the balaclava, the disposable gloves and the items in the green bag (grey foam and grey duct tape) were foreign to Bay View Road, but items of that same type[11] were stored at Hillside Grove where the appellant lived and had access to them.
[11] As discussed below, the prosecution evidence concerning the piece of heavy duty aluminum pipe constituting the weapon went further and tended to show that that very piece of pipe had been stored in that shed.
The second category of evidence was that the appellant was directly linked by very high probability DNA matches to various moveable items found at the crime scene including on a balaclava, on grey duct tape attached to the weapon, on two pieces of disposable glove, and on the handle of a bucket in the dining room.
The third category of evidence was that the appellant was also directly linked to the structural crime scene itself by very high probability DNA matches to the deposits of blood found in three separate fixed areas of the crime scene: the droplets of blood on the kitchen floor, hallway carpet and on the bi-fold doors.
The fourth category of evidence was the body of evidence which suggested that the assailant was bleeding due to his glove being torn by Rusty biting through it to the assailant’s hand. That evidence was that a torn piece of disposable glove disclosing tri-partite DNA matches to each of the appellant, Ms Clarke and Rusty the dog was found near dog faeces and urine in circumstances where:
-the evidence that Rusty was well house-trained and that Ms Clarke the victim was a fastidious housekeeper confirmed that the faeces and urine had not been present before the attack, and
-the expert evidence demonstrated that the sight of a dog’s owner being attacked was likely to cause in a dog both a stress response (such as deposit of urine or faeces) as well as an attack response (such as biting the assailant).
The fifth category of evidence was the combination of a number of further factual matters which tended to negate important aspects of the defence case. These included that:
-although the appellant asserted at the first trial that he had been present and cooked dinner at Bay View Road on the night preceding the night of the attack (thus potentially accounting for some of the forensic evidence), Neil Evans, Jodi Evans and Damien Clarke all denied that this was so. (Further, Ms Clarke could not remember him being there, but her memory concerning an event so close in time to the attack may not be reliable);
-although the appellant asserted at the first trial that he had an alibi in that he was home at Hillside Grove at the time of the attack, his evidence in that regard was disputed in virtually all important aspects by Ms Jodi Evans (whose evidence is considered below at [202]); and
-the appellant had the means of knowing that Neil Evans and Damien Clarke would probably not be home at Bay View Road that evening because the absence of the boat from Hillside Grove (where it was normally kept) would have indicated that the men, who usually fished together, were probably out fishing.
The prosecution case concerning the events of 19 August 2003 in more detail
The evidence was that when Neil Evans went fishing at night, the kitchen lights would be left on, the door to the carport at Bay View Road left unlocked and the front door and the back sliding door would be locked.
Neil Evans and Damien Clarke gave evidence that on Tuesday 19 August 2003, after having dinner with Ms Clarke at Bay View Road, they left to go “dabbing” for garfish at Farm Beach, 40 to 50 kilometres from Port Lincoln, having driven to Hillside Grove to collect the boat. Dabbing involves using a light to spot and net the garfish as they swim just under the surface and requires flat seas and, as luck would have it, that night the wind picked up and the two men returned home earlier than had been expected.
Ms Clarke gave evidence that, after they had left to go fishing, she cleaned up and watched the programme “The Bill” in the kitchen/dining room with Rusty. She then took Rusty to his kennel, tied him up and got ready for bed. She was watching television in bed when she heard a noise coming from the kitchen end of the house and recognised it as a noise made by the screen door which leads to the carport. She got out of bed to investigate, and was then attacked.
Margaret Ween, a neighbour who lived at 16 Bay View Road, heard what she described as “terrifying, horrific screams like someone really in trouble” five to ten minutes before 10:37pm on 19 August 2003.
Neil Evans and Damien Clarke gave evidence that they returned from fishing in the circumstances referred to above and drove into Bay View Road at about 10:45pm. They saw Rusty on the road, which was unusual; they stopped to let him into the car, and noticed that he was “frantic” and smelt of faeces. They then drove into the driveway and Rusty got out of the car and ran to the front south-western corner of the property near the shed where he was heard barking ferociously.[12]
[12] Rusty was not seen again until about 6:00am the following morning when he was found sitting at the back door of the Hillside Grove house; this matter is returned to later.
Neil Evans and Damien Clarke said that both the inside and outside lights of the house were on, which was again unusual. Ms Clarke’s car was parked in the carport/garage with the vehicle hazard lights on and the car doors (including the front driver’s side door) open. They found Ms Clarke lying face first in the front passenger foot well of her car, unconscious, bleeding from the head, with her night shirt up around her chest. Mr Evans stayed with Ms Clarke while Damien Clarke went inside the house and called 000, a call which was made at 10:46pm. We return to Ms Clarke’s medical condition and treatment below.
The crime scene evidence
There was uncontested evidence given by both Neil Evans and Ms Clarke that she kept a very tidy, organised and clean house. A crime scene investigator stated that there was no evidence of forced entry at the Bay View Road address; that the house was neatly presented and appeared to be kept in a very neat, clean and orderly condition; and that nothing appeared out of place other than what was significant to the event.
The crime scene evidence indicated that Ms Clarke was attacked in the dining room area of her house where there was a large amount of blood on the floor. There were signs of disturbance in the adjacent lounge room. There was a hole in the wall behind the pot plant (photographs 26, 43 and 44 of exhibit P7) which appeared to be recent given the debris on the floor below the hole.
Blood spatter analysis suggested that Ms Clarke had been struck repeatedly whilst on the floor. Blood stains indicated that she was then dragged a short distance where further blows were struck as she lay on the floor. There was then another drag mark approximately 200 millimetres wide through the blood that ran from an area near the dining room table for three and a half metres toward the garage door.
The evidence indicated it was likely that first, she was unconscious as she was dragged along the floor towards the garage door and then placed into her car; and second, that the assailant was disturbed by the return of Mr Evans and Mr Clarke, and made his escape via the glass sliding door in the lounge room that leads to the rear or northern side of the house which was found to be open. Blood smears were located on a down pipe on the north western side of the house and on aluminium capping which sits atop a brush fence bordering the front western side of the house and suggested that an escape was made by that route.
Items located outside the house
On the far side of that brush fence, police located the weapon, a length of heavy aluminium pipe two inches in diameter, covered in blood. One half of it was covered with foam and grey duct tape, suggesting that it had been deliberately fashioned into some form of cosh. On the ground nearby was a black plastic garbage bag with blood-like staining; it had holes in the middle and side, and could be worn as a smock. Also located in that area was a green plastic shopping bag which contained a number of pieces of cord and pieces of foam joined together with grey duct tape. Further along the road, police also found a number of disposable gloves.
Items located inside the house
In the dining room, police found a blue bucket containing clean water and a sponge next to heavy blood staining on the floor; a navy blue balaclava on the floor next to the blood staining; and two torn pieces of disposable glove on the floor. In the lounge room (adjacent to the dining room), police found signs of disturbance and upturned items and another torn piece of disposable glove near dog faeces and urine. In the kitchen, police found a single droplet of blood. On the hallway carpet, police found blood-like staining. On bi-fold doors which separated the lounge room from the hallway, police found three droplets of blood. In the laundry, police found what appeared to be bloodstains on the laundry curtain and also on a white lace bra sitting on top of laundry in a basket.
Relevant items discovered were foreign to the crime scene at Bay View Road
Ms Clarke gave evidence that she definitely did not recall there being any bloodstains on the carpet or on the bi-fold doors prior to the night of 19 August 2003; that the dog faeces and urine were not present in the lounge room before she went to bed that night; that the lounge room was not in a disturbed state and the sliding door not left open when she went to bed that night; and that she was not aware of ever having been outside, touching the downpipe or aluminium capping of the brush fence while bleeding.
The weapon exhibit P11
As to the weapon, exhibit P11, there is important DNA evidence dealt with below linking it to the appellant.
There is also strong evidence tending to show that each of the components of the weapon (the length of aluminium pipe, the grey foam taped to it and the grey tape itself) came from the garage at Hilltop Grove which was kept unlocked and to which the appellant had access.
As to the length of aluminium pipe itself, Neil Evans gave evidence that he had previously used an angle grinder to shorten two aluminium poles of an aluminium framed canopy that he had built for his boat, each by the same length, and that the two offcuts had been kept in the shed at Hillside Grove which was not kept locked. After the attack, he produced to the police the only one of the two offcuts which then remained in the shed and gave evidence that he was of the view that the aluminium pipe (the weapon, exhibit P11) was the other missing offcut.
In addition, there was further evidence from the prosecution expert witness, Mr McKenzie who compared the aluminium pipe or “pole” (the weapon, exhibit P11) with one of the aluminium poles on the canopy of Neil Evans’ boat (being one of the two which had been shortened by Neil Evans). Mr McKenzie’s evidence-in-chief included the following passage:
I can say with some degree of certainty that the pole on the canopy on the boat had the same manufacturing characteristics as the pole at the scene, its gone through the same die that produced the pipe but I can’t say that its positively come off the end of that length of pipe, it may be a number of lengths have gone through the same pipe die.
There was no cross-examination of Mr McKenzie concerning his evidence about the weapon or its likely origin.
As to the grey foam taped to the pipe and the grey tape, Neil Evans gave evidence that he kept at Hillside Grove both grey duct tape and grey foam (of the types found on the weapon) and that he used them to seal his refrigeration unit.
Disposable gloves
As to the disposable gloves and pieces thereof, there is important DNA evidence dealt with below linking them to the appellant, including the important tri-partite DNA matches.
Ms Clarke gave evidence that she used re-useable pink gloves, that she did not keep disposable gloves at her house, and that she had never seen the detached pieces of disposable glove that comprised exhibit P14. Damien Clarke gave evidence that he too did not use disposable gloves. On the other hand, Jodi Evans gave evidence that she did keep disposable gloves (that she had obtained from the dental clinic) at the Hillside Grove address and that they were of the type located at the crime scene.
The contents of the green plastic bag exhibit P15E
As to the contents of the green plastic bag exhibit P15E, there is important DNA evidence dealt with below linking them to the appellant.
Ms Clarke gave evidence that she did not recognise any of the cord, grey foam or grey duct tape in the green plastic bag. As noted above in the context of the weapon, Neil Evans gave evidence that he kept at Hillside Grove grey foam and grey duct tape which he used to seal his refrigeration unit. As to the cord in exhibit P15E, Neil Evans gave evidence that he did not recall having seen any at Hillside Grove, but said that he did recognise the cord as being similar to cord that he had noticed that the appellant had used to fashion a sun shade for his car.
The black plastic garbage bag with holes in the middle and side
As to the black plastic garbage bag with holes in the middle and side, Ms Clarke gave evidence that she did not have black plastic garbage bags at Bay View Road.
The navy blue balaclava, exhibit P13
As to the balaclava, exhibit P13, found on the dining room floor, there is important DNA evidence dealt with below linking it to the appellant.
Ms Clarke gave evidence that while she had previously washed Neil Evans’ balaclavas, she did not think the particular balaclava exhibit P13 came from her home. Neil Evans gave evidence that he owned a number of balaclavas, including one of the same style and colour as exhibit P13; that they were kept in the boat, or with the wet weather gear at Hillside Grove, but there could have been one or two at Bay View Road “in the drawer after Ms Clarke had washed them”. But importantly (if also obviously), he gave evidence that he had not left any balaclava on the dining room floor.
Damien Clarke gave evidence that on the night of Monday 18 August 2003 (the night prior to the night of the attack), he had dinner with Ms Clarke at Bay View Road[13] and then drove to Hillside Grove to pick up the boat and the appellant to take him fishing, this being the only occasion that he could recall doing so. He stated that, because of poor weather, the two of them fished close to town in Proper Bay and stopped fishing early, being off the water by 10:30pm. He confirmed that Neil Evans had balaclavas like exhibit P13, but he stated that he believed that neither he nor the appellant had used one on Monday 18 August 2003 because they came in from fishing so early (before it got very cold). Thus he stated:
QDo you have any recollection on the Monday night when you took Mr Lowe fishing with you whether you or him were wearing balaclavas or can’t you say?
A I doubt it because it was so early.
Q If you were home by 11 when would you have gotten off the water?
A We would have been off the water by 10.30.
[13] As is noted elsewhere, he stated that the appellant did not have dinner or cook dinner at Bay View Road that night (as was put to him in cross-examination).
As noted above, the appellant gave evidence at the first trial, but the only evidence he gave concerning him going out fishing were the following passages (which were all read to the jury in the second trial):
Q Are you aware that Neil had a fishing licence?
A Correct.
Q And Damien used to go fishing with him?
A Yes, or they would go on their own.
Q Did you ever go fishing with either of them or both of them?
A Yeah, I’ve been fishing with both Damien and Neil.
Q And was that individually or collectively or both?
ANo, the boat - it was a fairly small boat, it wouldn’t have been comfortable with three people and I remember going with each of them respectively.
Later appears the following passage:
QCan I turn to 17-18 August leading up towards the 19th. At any time over that couple of days did you go to the Bay View Road residence?
AYes, on the 18th I went to prepare a meal at Nanette’s house, and I remember this because when I was at dinner Damien and I made plans for - to go out fishing that night. It wasn’t a pre-organised thing but I got some ingredients that day, went to Bay View Road and then Jodi joined us afterwards.
It is to be noted that Ms Stokes did not thereafter return to the topic of the appellant going fishing on 18 August 2003 and there was no evidence-in-chief from the appellant as to him ever using a balaclava while fishing or in any other circumstances. The only cross-examination of the appellant on the topic of balaclavas was the following passage:
Q You had the balaclava, Exhibit P7, which you took from Hillside Grove?
A No, we didn’t keep balaclavas at the house.
Q There were balaclavas in the boat though, weren’t there?
A Yes, there were.
Q And balaclavas in the shed at Hillside Grove, weren’t there?
ANot a hundred-per-cent sure but I know they were on the boat, that’s where I would get them from if I was fishing with Neil and Damien.
If one were to put aside Damien Clarke’s evidence about the unlikelihood of the appellant having worn the balaclava on Monday 18 August 2003, and one were also to ignore the fact that the appellant had abstained from stating in evidence anything about wearing a balaclava on Monday 18 August 2003, one might argue that if the appellant had been wearing exhibit P13 on that occasion while fishing, he may at that time have deposited DNA on it which would still have been present when the balaclava was discovered at the crime scene a day later.
However, such an argument cannot suggest, let alone explain, how exhibit P13 could have been deposited on the dining room floor in circumstances other than having been brought to the premises by the assailant himself. The evidence of Ms Clarke and Neil Evans made it plain that Neil Evans did not just drop items of apparel on the dining room floor and that, if an item were left out of place in the home, it would very quickly be removed by Ms Clarke.
There really was no sensible hypothesis as to how the balaclava came to be in the position in which it was found other than that the assailant had left it there. Even if one were to attribute the DNA findings to a deposit by the appellant on the previous night while fishing, one still comes back to the proposition that the assailant was someone who had come into possession of that very balaclava which had been in the boat or elsewhere at Hillside Grove, thus again strongly pointing towards the appellant, an occupier of those premises.[14]
Ms Clarke’s description of the attack and the medical evidence concerning the reliability of that evidence
[14] For completeness, there was no evidence (or cross-examination suggesting) that Neil Evans or Damien Clarke had brought exhibit P13 to Bay View Road to be washed in the short time window between the cessation of fishing on Monday 18 August and the commencement of the attack on Monday 19 August 2003. But more importantly, even if exhibit P13 had then been innocently deposited at Bay View Road to be washed, it would have been in the laundry or “in the drawer”, and would not have been found lying on the dining room floor where the attack had taken place.
We will first refer to the evidence given by Ms Clarke concerning the attack and the assailant and then to the prosecution and defence medical evidence concerning the reliability of that evidence.
Ms Clarke’s description of the attack and her assailant
A As I walked through the kitchen past my pantry doors I noticed someone in the doorway with their back to me. …. As I walked through he became aware that
somebody was there and he swung around with quite a startled look on his face.
Q Did he have anything on his face?
A No, he didn’t.
Q Did he have anything in his hand?
AHe had a pipe that he was holding over his shoulder, in his hands that went over his shoulder.
Q What did he do?
A He hit me.
Q Whereabouts?
A On my head.
Q Just once?
AI don’t remember at that instant. I remember being hit once, I don’t remember being hit again.
Q After you were hit once, what’s your next memory?
AI remember trying to defend myself in as much as I do recall, and if it was at that point, I do recall kneeing him in the groin and I remember throwing my hands at his face.
Q Did you come into contact with his face or can’t you say?
A I really can’t remember. I believe I did but I really can’t -
Q Were you still at the same place when you kneed him in the groin?
A In that same area.
QIn the dining room side of the doorway or the sort of front door side of the doorway?
A The dining room side of the doorway.
Q Did this person say anything to you?
A No.
QDo you have any recollection of how this person smelt, for example, did they smell of cigarettes?
A I don’t remember having any thoughts of how they smelt or - no
QSo you couldn’t say whether they smelt of alcohol or had body odour, you don’t have any -
A No, no.
QAfter you put your hands to the person’s face what happened, what’s your next memory after that?
AAt some point after that I remember being on the floor. I can remember vividly seeing blood spurting from my head and then at some point I can remember pulling myself up against a chair that was at my table. I can remember calling on more than one occasion for help. I can remember hearing a noise as if there was someone approaching me, I couldn’t say what direction or whatever they were coming from but I was just aware there was someone coming back and then I really don’t recall anything after that.
QWhat’s the next thing you remember or where were you when you had your next memory?
AI don’t remember anything after that until I woke up in the - well, as it turned out, it was the Royal Adelaide Hospital.
Q Can you say when that was, in terms of a date or day of the week?
A I really have no idea but I was told I’d been there for three days.
Q Did you recognise this person that you saw in the kitchen?
A No I didn’t.
Q Are you able to describe that person today?
AI do have a set picture in my mind of the face of this person and the things that stand out the most were the colour of their skin, they were - had a very, very fair skin. The eyes were quite large and, once again, it was almost like a startled eye contact and then they had a very prominent, like square jaw. That’s all I can recall.
In cross-examination, Ms Clarke gave the following answers:
Q Did you do anything like scratch his face or neck in an attempt to defend yourself?
AWhen I struck out it would be to do whatever I could do. I didn’t have in my mind in that split second how I was going to lash out, but I did.
QIs it your belief that you made contact with some part of his body, but you can’t be absolutely sure of that?
A Absolutely, I can’t be sure.
QIn your mind was this the case: you were trying to gouge, scratch, anything you could get your hands into to keep him at bay?
A I would say so.
QIs it in fact the case that you are pretty sure you made contact, you just can’t be absolutely sure?
A Correct.
…
QTo be clear you got no impression, at least in your limited contact, of anybody else being in the house, just that one man that was attacking you?
A Just that one man.
Ms Clarke remembered giving a description to police “in a building somewhere”. She agreed it would have been around 2 September 2003 and at that time she was not able to walk unassisted. She did not recall giving a description to police before this time but agreed that she may have. She was shown the composite image (exhibit P19) produced from the description she gave to police and was asked whether she recognised that image today. She said “I recognise that as the image we did at the time”. She further stated:
Q Do you recognise that image today as the person who was in your kitchen?
AThe image that I’m looking at is looking - it appears a little bit different to how on - in my mind I’m thinking of what I saw that night, the jaw in particular. I do remember doing this image.
And in cross-examination:
Q…did Mr Bails ask you how well you rated that image that was the composite on the computer with the assailant?
A I don’t remember.
Q In any event you were satisfied, I suggest to you, that except for the jawline it was a very good likeness?
A It was the best that I could recall.
While Ms Clarke could not remember, she agreed that at the first trial, when asked whether the image was an exact likeness to the male person she saw in the kitchen, she had answered yes. Ms Clarke also agreed that she saw her assailant’s face because he did not have a mask or any disguise on it and that the face and hair looked like that of the man in the composite image.
Ms Clarke thought the man was wearing a light coloured, long sleeved shirt and dark coloured pants. She was asked whether she was definite that she had never seen this man before and she said “I hadn’t seen him before”. She agreed that she was of the view that she could have picked him out of a photograph line-up if asked to do so. She also agreed that assailant was “roughly” five foot eleven of average build and “it could have been someone around the 30 year mark”.
The prosecution medical evidence as to the reliability of Ms Clarke’s evidence
Ms Clarke arrived by ambulance at Port Lincoln Hospital at 11:37pm on 19 August 2003 and was seen by Dr Watts who was on call in the emergency department and was involved in her assessment and care. He gave the following evidence: that Ms Clarke had a major laceration to her scalp, multiple surrounding lacerations to the area, was actively bleeding and had a compound fracture of the right arm; that on the basis of haemoglobin levels it was estimated that she had lost 1500mls of blood; that she had no recollection of what had happened to her and did not appear to understand where she was; that she had a Glasgow Coma Score Scale of 8 when she first arrived and 13 at the time venous access was established; “she was confused, she thought she was in Sydney, she wasn’t opening her eyes appropriately”, and that he diagnosed a severe head injury and a serious neurological injury requiring intensive care and examination by a neurosurgeon.
Ms Clarke was taken to the Royal Adelaide Hospital at 3:00am on 20 August for further observation and treatment. Dr Drossaer was the Registrar of the Hampstead Rehabilitation Unit and gave the following evidence: that he first saw Ms Clarke on 25 August 2003 in the Royal Adelaide Hospital and diagnosed a severe head injury; that she was admitted to Hampstead Rehabilitation Centre on 29 August 2003 and he was responsible for the day to day management of Ms Clarke until she was discharged on 25 September 2003; that during her admission she required physiotherapy, occupational therapy, speech therapy, a neuropsychologist and social work; that her mental processing was slowed, she had difficulty in making decisions and her verbal fluency was lower than expected; that she had suffered three contusions to her brain, one being near the hippocampus; that gas or air was detected within the brain and there was fluid and damage to the left ear (including the balance regulator) and that the presence of air within the skull was most likely caused by a fracture to the skull which had not been not detected on the CT scan.
Ms Clarke was also assessed by Dr Scamps, a neurologist at the Hampstead Rehabilitation Centre, who found her to have suffered retrograde amnesia (loss of memory prior to head injury) for a period of 20 to 45 minutes and post-traumatic amnesia (loss of memory after head injury) for 17 days. At the time of assessment Ms Clarke still suffered a mild reduction in memory function.
Ms Clarke was in hospital for five weeks in all. It was four months before she was able to return to work, and then at half an hour per day. It was 12 months until she was able to perform full-time work or allowed to drive, and two years before she was able to run her house in the manner in which she did prior to the attack. When released, she was not able to walk unaided easily and her balance was still a problem; she continue to suffer an 80 percent permanent loss of hearing in her left ear, and also has tinnitus in that ear, as a result of the attack.
Ms Clarke gave evidence that when she first came home from the Hampstead Rehabilitation Centre there were certain things she remembered, “but I know there’s a lot of things that for whatever reason I block, block out.” She gave evidence that she could not remember Jodi Evans, the appellant or Rusty visiting her while she was in hospital or at the Hampstead Rehabilitation Centre, even though such visits did occur. She gave evidence that her memory is still impaired: “I write lots of notes for myself” and “it’s not improved over time”.
The evidence of Professor Vink
Professor Vink is a professor of neuroscience. He was qualified as an expert in the nature and mechanisms of memory and the effect of head injury on such mechanisms. He stated that the hippocampus of the brain is central to the laying down and retrieval of memory, that it is the most sensitive part of the brain to head injury and that if there is damage to the hippocampus, there will be damage to the way memory is encoded and retrieved. He stated that memories in long term storage prior to damage of the hippocampus will return once the hippocampus is functional but that short term memory not encoded into long term memory will be lost.
Professor Vink further stated that the more serious the head injury, the longer is likely to be the period of retrograde amnesia (patients not only failing to remember the event causing the injury but also losing memory for a period of time before that injury). He further stated that the longer the period of post traumatic amnesia the more retrograde amnesia a person is likely to have suffered, but that it is possible to remember flashes of events during a period of retrograde and post traumatic amnesia.
Professor Vink was of the view that Ms Clarke suffered damage to the hippocampus and was highly unlikely to have encoded a valid memory of the attack and that this fundamental mechanism will not be affected by whether or not she knew the person who attacked her. Accordingly, he considered that the description Ms Clarke gave of her assailant might or might not be a valid memory.
At both trials, the defence case was that the appellant could simply not be convicted in circumstances where the victim had effectively stated that her assailant was a male other than the appellant. As to the evidence of Professor Vink, the cross-examination was quite short and included the following passage:
Q You understand this is a question of her description of the man who attacked her?
A Yes.
QThat’s the issue. I’ll start at the end; is it open that that memory may be the genuine and the right one?
AIt’s possible, in the same way that a person who has forgotten periods of time does try very hard to remember that and attempt to fill in, particularly the further away from the memory that attempt happens.
QMrs Clarke is able to describe this evening; cooking a meal, washing up, watching The Bill, putting the dog out, tying it up, getting ready for bed and what she was wearing and then being disturbed by, I think it was a noise, but disturbed by something that led her into the kitchen - you read that evidence, you know it is as she remembers?
A Yes.
Q There’s no reason to doubt the validity of that memory, is there?
ANo, absolutely, in fact retrograde amnesia is usually in minutes, 30 minutes to an hour would be the normal, and it sounds as if most of that happened well before so she would have absolutely remembered that, that would have gone to the long-term memory.
QShe describes being in bed, hearing the noise, going out to the kitchen and seeing a shape, and she actually says with his back to her, so that’s a valid memory?
A I don’t know if that’s a valid memory.
QThen she describes this person turning and facing her and fairly quickly thereafter hitting her in the head. You’re aware of that information from having read the transcripts?
A Yes.
Q And you’re aware that her memory thereafter is, at best, patchy?
A Yes.
Q That’s consistent with the trauma from the blow to the head?
A Yes.
QBut she is able to give a detailed description of the assailant based on what she saw before she was first struck – you’re aware of that evidence as well?
A Yes, I’m aware she gave a description.
Q That surely may well be a valid memory?
AYes, just as likely as it is not a valid memory, so I really can’t testify that it is valid because I don’t know.
QIs what you’re saying it might be valid, it might not be valid, based on your qualifications it could be either?
A Yes.
The defence medical evidence as to the reliability of Ms Clarke’s evidence
Rather than objecting to the admissibility of the evidence of Professor Vink, or vigorously contesting it in cross-examination, Ms Stokes called a neuro-psychologist, Mr Reid, as a defence witness to give evidence concerning retrograde amnesia and the likelihood of the victim’s description of a person other than the appellant being correct. That evidence may be conveniently outlined by reproducing the Judge’s summary in his summing up:[15]
Mark Reid gave evidence. He is a neuropsychologist. He has a Masters degree in Clinical Psychology. He is a member of the College of Forensic Psychology and has practised for 35 years in clinical psychology.
Mr Reid said there is a degree of correlation between severity of a head injury and the likelihood of retrograde amnesia, but not a direct correlation. He said that patients with retrograde amnesia more often than not have no memory at all during the period of amnesia, but sometimes they have patchy memories.
Mr Reid said that he had read Dr Scamps’ report and the progress notes she made in the hospital records, but had not spoken to her. He said he did not know how she made her assessment that Nanette Clarke suffered retrograde amnesia for 20 to 45 minutes in circumstances in which it was recorded in the hospital notes that her last memory was lying on the floor before she woke up in hospital. Mr Reid said that Nanette Clarke appeared to have given a clear detailed description of what occurred and this suggested that she had a valid memory rather than a false memory. He said that in his experience memories were more likely to be invalid where the description was vague.
Mr Reid said that up to the onset of retrograde amnesia, the person is more likely to recall persons and events that are familiar to them or involve high emotions etc. However, after the onset of complete retrograde amnesia, these factors will be irrelevant. Mr Reid said that sometimes a person has clear memories followed by patchy memories followed by complete retrograde amnesia.
In cross-examination, Mr Reid said that he had not seen the evidence given by Nanette Clarke at trial. He said that he had very briefly scanned Dr Watts’s evidence, but it was only a very quick perusal and he had not seen Dr Drossaer’s evidence or any reports by him.
[15] I find below, in the context of ground 1 of appeal, that adequate directions were given concerning the evidence of the expert witnesses in the summing up.
CONSIDERATION OF THE SUB-GROUNDS OF GROUND 6 OF APPEAL
We now consider the various sub-grounds to ground 6 of appeal.
Sub-ground 6.1 of appeal
It is our view that, giving full weight to the “non-recognition” evidence of Ms Clarke, it was nevertheless well open to the jury, and it is well open to this Court, to accept the evidence of Professor Vink (and to reject contrary evidence of Mr Reid) that the memory of Ms Clarke was unreliable due to injury to her brain caused by the attack.
Sub-grounds 6.2 and 6.6 of appeal
Sub-grounds 6.2 and 6.6 of appeal may be taken together.
Sub-ground 6.2 refers to the evidence of the prosecution witness Ms Kilgour who works at the dental practice in Port Lincoln, on the door of which then appeared the name of a general medical practitioner who had previously practised there. She stated that she later saw in the local newspaper an article with the composite image composed by Ms Clarke and that she thought that she recognised the face as being that of a male person she had seen at the dental practice on the day after the attack. She stated that she had never seen this man before and described him. She stated that he had said to her that he needed to see a doctor and that she had directed him to the local doctor’s clinic, but that he had walked off in the opposite direction.
Ms Kilgour stated that she did not approach police with this information until about ten days after seeing the article because “I wanted to make sure that I wasn’t just imagining the similarity … just to keep looking at that photo and reassure myself that it was very similar”.
This evidence must be taken into account, but it is hardly uncommon for members of the public to respond to such newspaper publications and for their information to be found to be well-intentioned but not pertinent. It is to be noted that while a sub-text of the appellant’s reference to this evidence appears to be that the person was seeking attention for a scratch to his face, Ms Kilgour saw no scratch and Ms Clarke was doubtful that she had even inflicted a scratch. And, it may be observed that, even if she had, it would hardly have been a cut possibly requiring stitches or other medical attention.
Sub-ground 6.6 refers to the evidence of the witnesses Mr Terence Hage, Mr Kent Hage,[16] Ms Kish Cummings and Mr Jason Leach each of whom, it is asserted, observed “unusual” vehicles or people in the general area of the attack at or around the time of its occurrence.
[16] Mr Terence Hage and Mr Kent Hage are not related.
Mr Terence Hage stated that he lived in Sarah Crescent over the other side of the little gully from Bay View Road and that at about 9:45pm on 19 August 2003 he was having a cigarette outside his home when he heard a conversation between a male and a female with raised voices that “would have been coming pretty close from Nanette’s (Ms Clarke’s) place”. Mr Terence Hage further stated that later that evening he dropped his son off at work at about 10:30pm and as he drove home past Ms Clarke’s house, he noticed a late model Nissan Patrol travelling fast towards him with its high beams and two spotlights on but was not able to see anything of the driver.
It is to be noted that Mr Terence Hage did not state that the conversation did come from Nanette’s place or that he recognised her voice. There is no apparent connection between the Nissan Patrol vehicle and the present case.
Mr Kent Hage lived opposite to Ms Clarke, but down the road a little. He stated that on the evening of the attack at about 10:00pm he had heard an unusual noise (the nature of which he could not remember) and had walked to the corner. From there, he saw Ms Clarke walking up to and into her shed and then out and back into her house. He said that she was wearing something blueish, something long, like a dress.
We would refuse the application to receive fresh evidence (referred to as ground 7 of appeal).
We would grant permission to appeal on grounds 1, 1B, 1C, 2, 3, 4, 4B, 5 and 6. We would reject each of those grounds of appeal and dismiss the appeal.
NICHOLSON J. I agree with the orders proposed by Peek and Doyle JJ and with their reasons.
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