R v McGoldrick

[2013] QCA 157

SUPREME COURT OF QUEENSLAND

CITATION:

R v McGoldrick [2013] QCA 157

PARTIES:

R
v
McGOLDRICK, Ashley Michael
(appellant)

FILE NO/S:

CA No 243 of 2012
SC No 701 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

21 June 2013

DELIVERED AT:

Brisbane

HEARING DATE:

10 April 2013

JUDGES:

Fraser JA and Daubney and Peter Lyons JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was found guilty of murder – where the deceased was discovered in her unit on 16 June 2010 – where the appellant admitted visiting the deceased’s residence on 9 June 2010, and to an altercation between them – where the prosecution argued at trial that the appellant inflicted the fatal wound between 7.50 am and 8.47 am on 9 June 2010 – where the appellant contended that the verdict was unreasonable based on the differing expert evidence of three forensic pathologists as to time of death, and because a number of Crown witnesses gave evidence that they had seen the deceased alive after she was alleged to have died – where the prosecution argued that a combination of circumstances established beyond reasonable doubt that the appellant inflicted the fatal wound prior to him leaving the deceased’s residence – whether the verdict was unreasonable or insupportable having regard to the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – REVIEW OF EVIDENCE – where the appellant argued that the trial judge misdirected the jury in relation to the expert evidence of three forensic pathologists concerning time of death – where there was no challenge to the initial direction made by the trial judge – where the appellant contended that a subsequent redirection incorrectly emphasised the onus of proof on the prosecution in relation to the expert evidence – whether the trial judge misdirected the jury

M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, cited
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, cited

COUNSEL:

J R Hunter QC for the appellant
B G Campbell for the respondent

SOLICITORS:

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

1. FRASER JA: The appellant was charged that on 9 June 2010 he murdered Dianne Hawkins and that he stole a quantity of morphine which was her property.  He pleaded not guilty to the charge of murder and guilty to the stealing charge.  On 31 August 2012, after a trial which extended into a twelfth day, the jury found the appellant guilty of murder.  The appellant’s notice of appeal against his conviction includes four grounds of appeal, but at the hearing of the appeal the appellant pursued only two grounds.  The first ground of appeal is that it was not open to the jury on the whole of the evidence to be satisfied of the appellant’s guilt beyond reasonable doubt.  The second ground is that the trial judge, the Chief Justice, misdirected the jury in respect of the evidence of three forensic pathologists who had given evidence about the time of death.

Was the verdict unreasonable?

1. The first ground of the appellant’s appeal invokes the ground in s 668E(1) of the Criminal Code 1899 (Qld) that the verdict was unreasonable or cannot be supported having regard to the evidence. Consideration of this ground requires the Court to conduct an independent review of the record of the trial and to decide whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offence; if the review results in the Court having a reasonable doubt, the conviction must be set aside unless the doubt is capable of being resolved by reference to the jury’s advantage over this Court in seeing and hearing the evidence as it was given.[1]

   [1]M v The Queen (1994) 181 CLR 487 at 493-494; MFA v The Queen (2002) 213 CLR 606 at 615; SKA v The Queen (2011) 243 CLR 400 at 406, 408-409.

1. The evidence was that the body of the deceased was discovered in her unit on 16 June 2010.  At a post-mortem examination on the following day, Dr Ong noted numerous injuries.  There were areas of bruises and abrasions, including many to the deceased’s head and neck, an incised wound and two stab wounds to the left back of the head, a puncture wound behind the right ear, two puncture wounds behind the left ear, an incised wound to the right side of the neck, a stab wound to the lower right of the neck, stab wounds perforating the sternum and into the cartilage of the fourth rib, and a stab wound of the left side of the neck which severed the jugular vein and scored the spine.  The last of those injuries caused the death of the deceased.  In all there were 26 injuries, of which all except five were, in Dr Ong’s opinion, recent injuries caused at around the time of the fatal stab wound and death.

1. It was not in issue at the trial that the jury could be satisfied beyond reasonable doubt that the person who inflicted the fatal stab wound to the left side of the neck did so with the intention of causing the deceased grievous bodily harm or death.  The real issue was whether the prosecution proved beyond reasonable doubt that the appellant inflicted that wound.  The Crown case was that the appellant inflicted the fatal wound between about 7.50 am and 8.47 am on 9 June 2010.  In a police record of interview on 19 June 2010, the appellant said that he visited the deceased at her unit on the Wednesday 10 or 11 days before, that is, on Wednesday, 9 June 2010.  That evidence and the evidence of Go Card records and CCTV footage proved that the appellant was at the deceased’s unit on that day between shortly after 7.49 am and 8.47 am and that he did not return to the unit that day.  In the afternoon of the same day the appellant was found in a toilet at a train station, after having made a serious attempt at suicide.  From then until the discovery of the deceased’s body the appellant was in a hospital or a mental health facility.  Accordingly the appellant could not have committed the offence if the fatal wound was inflicted after 8.47 am on 9 June 2010.

1. The appellant argued that a doubt whether the deceased was killed by that time arose from the expert medical evidence about the time of death and the evidence of various Crown witnesses that they had seen Ms Hawkins alive and well after 8.47 am on 9 June 2010.  The Crown case on that point was that the expert medical evidence was inconclusive, the evidence of those Crown witnesses was not persuasive, and a combination of circumstances established beyond reasonable doubt that the appellant inflicted the fatal stab wound whilst he was at the deceased’s unit.

1. In the appellant’s police interview, he said that he had been to Ms Hawkins’ house on Tuesday, 8 June and got some morphine from her, with a view to taking his own life.  He returned on the following day, Wednesday, 9 June.  CCTV footage showed that earlier that morning the appellant purchased a knife before going to the unit.  A replica of the knife shown in the CCTV footage was shown to Dr Ong, who expressed the opinion that it could have been used to inflict the fatal wound.[2]  The fatal stab wound was about 4 centimetres deep.  Assuming that it was inflicted with a sharp blade, only mild to moderate force would be required to inflict it.[3]  Dr Ong also expressed the opinion that the fatal injury would probably have caused death in minutes, and at the most, within not more than two to three hours.[4]

   [2]AB 177.

   [3]AB 176.

   [4]AB 176.

1. The appellant said that after he arrived at the unit on 9 June, Ms Hawkins was agitated and angry and accused him of owing her money.  She threw things at him, slapped him and hit him on the nose with something, causing his nose to bleed.  The appellant pushed her into the kitchen.  She grabbed a knife from the kitchen, waved it in front of his face, and demanded money which she wrongly claimed the appellant owed her.  The appellant said that he grabbed the knife out of her hand, cutting himself in the process, pushed her back, and hit her on the side of her head.  The appellant said that Ms Hawkins fell to the floor semi-conscious.  He said that his actions were in self-defence.  The appellant acknowledged that he took the drugs whilst Ms Hawkins was semi-conscious on the floor.  He said that he probably also had a cigarette.  He made sure that she was okay.  He rolled her onto her stomach so that she did not choke and he left the unit.  The appellant was asked whether he hit Ms Hawkins more than once and whether he hit her while he had the knife in his hand.  He said that he thought he hit her only once, just one punch to the side of her head, and that he did not really ever have the knife in his hand.

1. The appellant said that he threw the knife away in the lounge room.  A police officer, Bell, gave evidence that on 16 June 2010 she conducted a systematic examination of the deceased’s unit.  No knife was found in the lounge room.  The appellant said that he attempted suicide with the knife he had bought that morning before he had went to Ms Hawkins’ house.[5]  He said that the knife remained in his bag when he was at Ms Hawkins’ place.[6]  Subsequently he said that he might have bought two knives.[7]  Later in the interview the appellant was asked where the knife was now and he said that he did not know.[8]  Under further questioning, the appellant acknowledged that, after he left Ms Hawkins’ unit he may have gone back to the shop he had been to earlier in the day to buy a second knife, in case the first knife blunted halfway through his attempted suicide.  CCTV footage showed the appellant purchasing a second knife from the same shop at which he had purchased the first knife.  One knife was found in the train station toilet cubicle in which the appellant attempted to commit suicide.  Police were unable to locate the second knife.[9]

   [5]AB 897.

   [6]AB 907.

   [7]AB 909.

   [8]AB 946.

   [9]AB 139-140.

1. The appellant told police that there was blood on his jeans and his white shirt.  He did not know whose blood it was.  He assumed that it was from his bleeding nose.  He said that the blood on his jeans was possibly from the knee down.  The appellant said that he took the shirt off before he left the apartment but he thought that he had kept it.  Underneath that shirt the appellant had been wearing a short sleeved brown shirt with a collar.  The evidence was that his clothing was subsequently disposed of.

1. The prosecution relied upon the following circumstances to prove that Ms Hawkins was dead or was dying when the appellant left her unit by 8.47 am on 9 June 2010:

The nature of the injuries inflicted upon Ms Hawkins1.          

In the appellant’s record of interview he said that he hit Ms Hawkins with a closed fist in her temple “[a]s hard as I could”[10] and she fell to the floor “not entirely unconscious but thereabouts”.[11]  The appellant’s admissions that he struggled with Ms Hawkins were consistent with the evidence in the Crown case that his DNA (more accurately, DNA in relation to which the probability of it coming from a person other than the appellant was approximately 1 in 2.5 million or, in some cases, even less probable) was found under Ms Hawkins right fingernails and on her wrists and clothing.[12]  Dr Ong’s evidence of the injuries inflicted upon Ms Hawkins included a bruise beside her left eye which was consistent with the punch which the appellant admitted he had inflicted and Dr Ong’s evidence was that this injury and other recent injuries were inflicted in a struggle at about the same time as the fatal stab wound.

[10]AB 855.

[11]AB 856.

[12]Evidence of the Forensic Scientist Ms Caunt at AB 468, 473.

The appellant’s DNA was found in blood found on Ms Hawkins’ cheek2.          

A photograph taken of the deceased showed what appeared to be very conspicuous spots of blood on the upper and lower aspects of her left cheek.[13]  The major DNA profile, a full DNA profile, of the blood on the upper left cheek matched the appellant’s DNA profile (with a probability of 1 in 150 billion that the DNA came from someone other than the appellant), and the incomplete, minor profile matched the DNA of Ms Hawkins.[14]

[13]Exhibit 49 and evidence of Dr Ong at AB 160.

[14]Evidence of Ms Caunt at AB 473.

The position of Ms Hawkins’ body when discovered3.          

The position in the living area of Ms Hawkins’ unit in which her body was found lying was similar to that which the appellant drew during the police interview.[15]  Furthermore, the body was found in a nightgown and no underwear, matching the appellant’s description of how Ms Hawkins was clothed on the morning of 9 June 2010.

[15]AB 768, 781 and Exhibit 15.

Ms Hawkins missed appointments on 9 and 11 June 20104.          

Ms Hawkins’ regular hairdresser, Mr Royali, gave evidence that Ms Hawkins had her hair done in his salon once or twice a week, that she attended an appointment on 2 June 2010, that she did not attend an appointment for 1.30 pm on 9 June 2010, and that he did not hear from her again.  A record of telephone calls made by Ms Hawkins suggested that she had made the appointment for 9 June on the previous day.  (Mr Royali agreed in cross-examination that there were occasions when Ms Hawkins did not turn up for appointments.)  The appellant admitted that Ms Hawkins did not attend her appointment at a hospital for a liver function test at 9.45 am on 11 June 2010.  (The prosecution admitted that medical records of Ms Hawkins showed that she failed to attend various medical appointments occasionally.)

Failure to collect prescription medication5.          

The appellant admitted that Ms Hawkins failed to collect a prescription for MS-Contin which was waiting for her at a chemist in the Valley as at 10 June 2010.[16]  (The admitted record of the prescription medication supplied by the same chemist to the appellant showed that she very frequently obtained that and other prescription medicines from that chemist between January and June 2010, up until her failure to collect the medicine which was awaiting collection from 10 June 2010.)[17]

[16]Admission 6 AB 814.

[17]Chemist records AB 800-801.

Cessation of all telephone communication6.          

Telephone records revealed that Ms Hawkins used her telephones very frequently.  By way of example, the respondent submitted without contradiction that in the period 2 – 8 June 2010, 48 calls or messages were sent and 13 calls were received from and on Ms Hawkins’ mobile telephones and 58 calls were made and 28 calls received on the landline at her unit.[18]  After the last successful telephonic communication with Ms Hawkins at 7.49 am on 9 June 2010 (when she received a call lasting 1 minute and 2 seconds), there were no outgoing calls and no successful incoming calls, although the messages which were left included seven attempted calls to Ms Hawkins on 9 June 2010 and 12 attempted calls to her on 10 June 2010.[19]

[18]Exhibit 34 AB 754-764. On my count there were 27 calls received on the landline at her unit.

[19]Exhibit 34 AB 764-765; evidence of Detective Sergeant Gilfoyle AB 326-339; Exhibit 119. On my count there were five attempted calls on 9 June 2010 and seven attempted calls on 10 June 2010.

Cessation of diary notes7.          

Ms Hawkins’ daily diary included many notes for each day from 19 May up to 9 June 2010, but no notes thereafter; the pages following Wednesday, 9 June 2010 (wrongly written as Wednesday, 10 June) were blank.[20]

[20]Exhibits 25 and 26 (described at AB 99-103).

TV Guides8.          

Two different TV guides were found in the lounge room, each of which was open at 9 June 2010.[21]

[21]AB 97-98.

Mail not collected9.          

Mail had stacked up in Ms Hawkins’ mailbox, some of which had been moved by a neighbour to her doorway.  Of the mail which carried date stamps, the earliest date of the mail in the mailbox or at the door was 7 June 2010.[22]

[22]AB 323-326, although one date stamp is hard to read and might refer to 9 June 2010 rather than 7 June 2010 (AB 325).

Alcohol not purchased10.       

Mr Park, the manager of a liquor shop in Ms Hawkins’ suburb, gave evidence that Ms Hawkins was a regular customer who visited two or three times a week to buy spirits or wine.  In the afternoon of 7 June 2010 Ms Hawkins purchased alcohol from Mr Park and, by arrangement, left her FlyBuys card to be scanned by Mr Park with a view to Ms Hawkins collecting it on her next visit.  Ms Hawkins did not return to collect the FlyBuys card and Mr Park did not see her again after 7 June.[23]

No bank or taxi transactions11.       

Ms Hawkins’ bank accounts were not accessed after 3 June 2010, (but the balance of her main operating account was very small after that transaction).[24]  Ms Hawkins was a regular, although not daily, user of taxis, but taxi records revealed that she last ordered a taxi on 4 June 2010.[25]

[23]Evidence of Mr Park at AB 365-368.

[24]Exhibit 33 AB 718-735, at 728.

[25]Exhibit 123 AB 802-809.

1. The combination of those circumstances established a powerful Crown case that Ms Hawkins was dead or dying when the appellant left her unit by 8.47 am on 9 June 2010.  In particular, the combination of the appellant’s admissions in his police interview and the evidence of the presence of a conspicuous spot of the appellant’s blood on Ms Hawkins’ cheek when her body was found on 16 June 2010, the cessation of what until 9 June 2010 were extremely frequent communications from her telephones, and the cessation on the same date of her frequent daily diary entries overwhelmingly pointed to the conclusion that Ms Hawkins received her fatal wound before the appellant left her unit.

1. The appellant contended that a reasonable doubt arose as a result of concessions by Dr Ong and Professor Ansford, and from the evidence of the expert witness called by the appellant, Professor Duflou.  In relation to the evidence of Dr Ong, the appellant emphasised a concluding exchange in his cross-examination:

“… Now, I want you to see if you can comment on this, but I suggest that given the only early minimal signs of decomposition shown in the body and given the constant warm temperature of 20 degrees that the body of the deceased was very unlikely to have been dead for a week and more likely to have been dead at least two or three days?-- I think - I do agree with that. I mean, it’s probably more about three or four days, but I think, like I say - like you say, I agree that it’s more unlikely to be after a week.

More unlikely after a week?-- Yes.

All right. Thank you. Well, do you agree with the proposition I put that it was - the signs that I have discussed given with the constant temperature of 20 degrees on heat cycle on the air conditioner, that it was very unlikely that the deceased died a week before the discovery of her body?-- Yes, it’s unlikely, yes.”

1. Dr Ong gave evidence that he conducted about 200 autopsies a year in the previous decade.  He referred to various indications as to the time of death (including evidence of mummification on the hands and feet, evidence of decomposition around the mouth, chin and abdomen, and evidence of skin slippage and desiccation at the margins of the wounds and distortion of the brain) and, upon the scenario revealed by the evidence in the Crown case (including that the room had been kept at a relevantly constant temperature of between 19 and 21 degrees and at a relatively stable relative humidity between 40 and 60 per cent), described this as “a fairly unique situation where there’s constant movement of air, fairly constant temperature and low humidity”.  He observed that it was “quite difficult to say” how those conditions would affect decomposition or other bodily changes.[26]  In his subsequent evidence-in-chief, Dr Ong expressed the opinion that it was “fairly difficult to estimate, but I would say – to give it a wide range, it is probably more than a day or two, maybe probably two, and probably the limit would be about around a region of one week”.  Those qualifications upon the reliability of his opinion about the time of death were consistent with his earlier evidence that whilst it was possible from an examination of the deceased person to give an estimation of the time of death, it was not an “exact science”.[27]

   [26]AB 185.

   [27]AB 158.

1. Similarly, whilst Professor Ansford accepted defence counsel’s proposition that it was unlikely that the deceased had been dead for as long as seven days and four hours and it was more likely that she had been dead for three to four days when discovered, he added that he found a bit of a difficulty with this case in the degree of mummification of the hands, which was difficult to quantify, and that “it is all very inaccurate and hypothetical this trying to determine the … time of death”.[28]  That is consistent with his evidence-in-chief, in which he had described the process of trying to estimate a time of death by looking at the body and post-death changes to the body as “notoriously inaccurate”.[29]  Dr Ansford did not resile from his evidence-in-chief that the outer limit of the time between death and discovery of the body was “a week or so”.[30]

   [28]AB 299-300.

   [29]AB 296.

   [30]AB 297.

1. Professor Duflou, also a well qualified and very experienced forensic pathologist expressed the opinions that a week after death, there should have been pronounced decompositional changes “something well in excess of what is seen in this case”,[31] that the body was “really quite typical of a body that has been dead for three or four days or so”, and that “I struggle with the suggestion that the deceased may have been dead for seven days when she was found”,[32]  and that the body looked “a lot fresher than seven days”; but these opinions were qualified by his remark that he could not be “absolutely certain about [this] and I think the problem with the human body is that there is a degree of variability from person to person”.[33]  Professor Duflou agreed in cross-examination that this was not an “exact science”, and although he accepted the death could have been a week or longer before the body was discovered only as “a remote possibility”,[34] he agreed with evidence given by Dr Ansford that, whilst he could provide a reasonable estimate of the time of death, “I still get surprised every now and then when there is an accurate estimation of time of death from reliable external sources, either the degree of [decomposition] or the lack of decomposition, I’m always having surprises at seeing a body that I think has been dead for X amount of time and a reliable external evidence indicates in fact it had been dead for a lot longer or, indeed the other way round, a lot shorter time.”[35]  Professor Duflou indicated that he had similar experiences and that, whilst he thought that the body did not look like one that had been dead for seven days, he agreed that reliable evidence that suggested that the deceased was dead by the morning of 9 June would “trump” his estimation based on post-mortem findings.[36]

   [31]AB 505-506.

   [32]AB 508.

   [33]AB 508.

   [34]AB 512.

   [35]AB 513.

   [36]AB 514.

1. The expert evidence upon which the appellant relied was for the jury to consider, but having regard to the expressed qualifications upon the reliability of the estimates of the time of death in the particular circumstances of this case, that evidence did not require the jury to harbour any reasonable doubt that Ms Hawkins died as a result of a stab wound she received on the morning of 9 June 2010.

1. Some witnesses gave evidence in the Crown case that they had not seen Ms Hawkins after the morning of 9 June, but the appellant relied upon the evidence of other witnesses that they had seen Ms Hawkins after that time.  These witnesses were also called by the Prosecutor.  The Crown case was that they were mistaken.

1. Shane O’Brien, who lived in the same street as Ms Hawkins, gave evidence that although he did not know her personally he knew her by sight and they used to greet each other when they passed in the street.  In evidence-in-chief Mr O’Brien was asked by the Prosecutor whether there was anything unusual about the last time when he saw Ms Hawkins.  Mr O’Brien said that he had been sick and injured and was having the day off to see a specialist later that same day, having come home from work early the day before when he had been bitten by a spider.  Mr O’Brien said that he saw Ms Hawkins chatting to someone else, when he said hello and kept walking.  He said that he did not notice what she was wearing, he did not notice anything unusual about her, and he did not notice any blood on her face, but he added that he barely glanced at her and he had his “head down powering up that damn hill again …”.[37]  He confirmed that his medical appointment with the specialist was on that day.  It emerged in cross-examination that Mr O’Brien had not given any written statement to the police about this until early July 2010.  Defence counsel also elicited from Mr O’Brien that the day he collapsed at work after having been bitten by a spider was on 9 June 2010, that he had worked throughout the following day, and that he had taken Friday, 11 June 2010 off work as he was then still ill.  He said that it was on that Friday, 11 June 2010 that he saw the specialist and it was on that day when he had glanced and waved at Ms Hawkins.  He did not see her again after that day.  In re-examination, Mr O’Brien agreed that in his first written statement to police on 4 July 2010 and, in a subsequent statement on 25 May 2011, he stated that his appointment with the doctor (specialist) was in fact made for 15 June rather than for the date given in his first statement.

   [37]AB 496.

1. The appellant submitted that Mr O’Brien had been able to fix the date upon which he saw Ms Hawkins by reference to the occasion of being bitten by a spider on 9 June whilst at work, but it is apparent that his evidence was based upon his recollection, unreliable at least in some respects, which were first reduced to a written statement more than a fortnight after Ms Hawkins’ body was discovered.

1. Ms Rodriguez, the operator of a hair salon which Ms Hawkins attended regularly in 2009 and occasionally afterwards, gave evidence that she thought she could recall having seen Ms Hawkins a week before she gave a statement to police on 17 June 2010.  She didn’t then speak to Ms Hawkins but saw her walk past her shop.  Ms Rodriguez recalled that Ms Hawkins was then wearing black pants.  In cross-examination, Ms Rodriguez agreed with the suggestion by defence counsel that on 17 June 2010 she told the police that the last time she saw Ms Hawkins was “last week”, that she did not remember which day it was, and that she remembered that it was in “the latter part of the week, maybe Friday or Saturday.”

1. Taylor-Rae Germain gave evidence that she lived across the street from Ms Hawkins’ flat.  She could not recall whether she had seen Ms Hawkins during one of her (Ms Germain’s) regular walks with her dog, but she did recall telling police that she had seen Ms Hawkins.  Ms Germain did not see any blood on Ms Hawkins.  In cross-examination Ms Germain recalled that she had told police that she had undertaken a mathematics examination on Wednesday, 16 June 2010, she recalled discovering on 17 June that Ms Hawkins had been killed in her unit, that had jogged her memory, and on 25 June 2010 she told police that she recalled seeing an older lady sitting on the front patio of the unit on Saturday, 12 June 2010.  The description given by Ms Germain of that lady matched that of Ms Hawkins.

1. Dorothy Banham lived at a unit in the same block as Ms Hawkins’ unit.  She usually left the unit to go to St Vincent de Paul on Monday, Wednesday, and Friday of each week.  Mrs Banham gave a statement to police on 19 June 2010.  In evidence-in-chief she said that to the best of her recollection she last saw Ms Hawkins at about 3.00 pm or 3.30 pm in the afternoon on Wednesday, 9 June.  Mrs Banham said that Ms Hawkins was in the yard in the back of the unit complex, wandering around and coming from one of the other units at the back occupied by Gary Williams.  Mrs Banham gave evidence that there was nothing unusual or noteworthy about Ms Hawkins at that time.  However, her evidence was contradicted by Mr Williams.

1. Mr Williams gave evidence that at the time he had mobility problems and he was in a wheelchair, although he could get around on crutches if necessary, and that Ms Hawkins used to bring him meals occasionally.  He used to hear or see her almost every day during the week.  His evidence was that the last time before the body was discovered on 16 June that he saw Ms Hawkins was in the early afternoon of Tuesday, 8 June, when he was brought home from hospital in an ambulance and Ms Hawkins went down to see him.

1. Arthur Wilson, who also lived in the same unit block as Ms Hawkins, was asked about the last “disturbance” at her unit that he heard before her body was discovered on 16 June 2010.  He said that he thought it was about two days beforehand around about midnight, when he heard a lot of yelling and somebody calling for the police.  On the other hand, Rita Ryan, who lived in an adjoining block of units, did not know Ms Hawkins but knew of her and occasionally said hello to her.  Ms Ryan gave evidence that the last time she saw Ms Hawkins was on 8 June 2010 and that she did not see or hear her again after that time, (although she did hear “loud arguments” coming from her unit after 8 June 2010).

1. The Prosecutor did not contend that those witnesses were other than honest in giving their best recollections of when they last saw Ms Hawkins, but the evidence of the witnesses relied upon by the appellant, whether considered individually or collectively, was not very persuasive.  None of those witnesses referred to the distinctive spot of blood which, on the apparently reliable evidence mentioned earlier, must have been on Ms Hawkins’ face after 8.47 am on 9 June 2010.  That is an astonishing omission if any of the witnesses had in fact seen Ms Hawkins after that time.

1. The appellant’s senior counsel acknowledged that a scenario in which an accused person rendered someone unconscious and left the scene, after which a different person arrived and killed the unconscious person, would usually be regarded as risible.  He argued, however, that there were particular features of Ms Hawkins’ behaviour which set her apart from most others in this respect.  There was a large body of evidence that Ms Hawkins was habitually noisy and argumentative, she was often intoxicated, she was regularly visited at all hours of the day and night by disreputable looking people, and she had complained of death threats.  An investigating police officer gave evidence of an extraordinary number of calls to the police by Ms Hawkins and by her neighbours expressing their concern about what was going on at her unit.  There were numerous telephone calls and visits to the unit by police between March 2009 and 6 June 2010.  Such was the frequency of Ms Hawkins’ contact with the police that the police computer despatch system included a note that all calls from her should be treated as urgent.  Furthermore, some of Ms Hawkins’ complaints to police had been of people attempting to force their way into her unit and Ms Hawkins had been the subject of a significant assault which led to the loss of an eye.

1. However, there was no evidence that any person entered Ms Hawkins’ unit after the appellant left it at 8.47 am on 9 June 2010.  Notwithstanding the evidence of sightings of Ms Hawkins after that time, the effect of the forensic pathologists’ evidence about the likely time of death, and the theoretical possibility that someone might have done violence to Ms Hawkins after the appellant left her unit, the prosecution’s circumstantial case was so powerful that it plainly remained open to the jury, acting reasonably, to find beyond reasonable doubt that Ms Hawkins died as a result of a stab wound inflicted by the appellant before that time.

Misdirection

1. Under the second ground of appeal the appellant argued that the trial judge misdirected the jury in respect of the evidence of the three forensic pathologists concerning the time of death.  There was no challenge to the trial judge’s initial directions to the jury.  The trial judge then directed the jury that the prosecution relied on the pathology evidence “to establish the possibility that the deceased could have died a week or so before the discovery of the body on the 16th of June …”.[38]  The trial judge referred to the opinion expressed by Dr Ong that it was unlikely that by 16 June the deceased would have been dead for a week.[39]  The trial judge also reminded the jury of submissions made by defence counsel to the same effect in relation to the evidence of both the pathologists called by the prosecution[40] and Professor Duflou’s description of the prospect of death a week before the discovery of the body as a “remote possibility”.[41]

   [38]AB 549.

   [39]AB 550.

   [40]AB 551.

   [41]AB 554.

1. The jury retired at mid-morning on the tenth day of the trial.  At mid-afternoon on the following day, the trial judge received a note from the jury that “[t]he jury has reached an impasse over the evidence of the pathologists suggesting that time of death might have been three to four days old, rather than a week.  For some jurors, they cannot accept beyond reasonable doubt that the time of death was a week old.  We seek your advice.”[42]

   [42]AB 562.

1. The appellant submitted that the subsequent redirection by the trial judge wrongly emphasised that the expert evidence “[left] open the possibility of death on the 9th” (the trial judge used that phrase twice), when what was required was proof beyond reasonable doubt that the death occurred on the morning of the 9th; the trial judge should have instructed the jury that if the evidence of the pathologist, when considered with the whole of the evidence, raised a reasonable doubt about whether the deceased was killed on the morning of 9 June 2010, then the jury should acquit the appellant.  These points were not taken by defence counsel.

1. As was accepted on behalf of the appellant, the terms of the jury’s note made it appropriate for the trial judge to give a direction to the jury to consider the relevance of other evidence as well as the pathologists’ evidence about the time of death.  The direction given by the trial judge would not have left the jury with any impression that something less than proof beyond reasonable doubt of that time of death alleged by the prosecution was sufficient.  The trial judge commenced the redirection by directing the jury that “to convict the accused of murder you must be satisfied beyond reasonable doubt that the deceased died on the 9th of June or thereabouts”, and the trial judge immediately went on to explain that by “thereabouts” he meant “at a time proximate, near to the accused’s departure from the unit”, as opposed to the dichotomy referred to in the juror’s note between a week and three to four days.  Shortly afterwards the Chief Justice again directed the jury of the need to be satisfied beyond reasonable doubt that the deceased died at that time.  After directing the jury that the pathology evidence was not the only relevant evidence and it would be wrong for the jury to approach the issue only by reference to that evidence, and after referring to other relevant evidence, the trial judge gave the direction upon which the appellant focussed:

“The pathology evidence is important to the prosecution if, on your interpretation of it, it leaves open the possibility of death on the 9th, but it’s not the only relevant evidence bearing on that, and you should approach the issue of the time of death by reference to all of the relevant evidence.”[43]

[43]AB 567.

1. The trial judge referred to the significance of the pathology evidence for the defence submissions, pointing out that it was “obviously relevant as bearing on the likelihood of death on the 9th of June, likelihood or otherwise”.  The trial judge then returned to the onus and degree of the necessary proof in a direction that, in addition to the pathology evidence, “there is other evidence bearing on that, as well, which you would consider when determining whether you are satisfied beyond reasonable doubt that death occurred then.”

1. The jury were therefore reminded three times of the onus upon the prosecution of proving the time of death for which the prosecution contended beyond reasonable doubt.  There was no encouragement to the jury that anything less was sufficient.  There was no error in the redirection.

Proposed order

1. The appeal should be dismissed.

1. DAUBNEY J: I respectfully agree with the reasons for judgment of Fraser JA, and with the order he proposes.

1. PETER LYONS J: I agree with the reasons of Fraser JA and the order he proposes.