R v Murphy
[2013] SADC 102
•2 August 2013
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MURPHY
Criminal Trial by Judge Alone
[2013] SADC 102
Reasons for the Verdict of His Honour Judge Slattery
2 August 2013
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON
Trial by Judge sitting without a jury - accused charged with aggravated causing harm with intent to cause harm – prosecution did not call the victim to give evidence – circumstantial evidence used to draw inferences of guilt, and to exclude any reasonable hypothesis other than guilt – no case to answer submission put forward by defendant – defendant claims the victim inflicted the wounds upon herself.
Verdict: Guilty.
Cross on Evidence 8th Australian Edition (J.D. Heydon) Chapter 19 paragraphs [37001], [37060]; Criminal Law Consolidation Act 1935 (SA) s24(1)(b); Juries Act 1927 (SA) s7; Evidence Act 1929 (SA) s34P(4), referred to.
Douglass v R [2012] HCA 34 ; R v Keyte (2000) 78 SASR 68; Hargraves v R [2011] HCA 44 ; Ratten v R [1972] AC 378 (PC); R v Andrews [1987] AC 281 ; Mills v R [1995] 3 All ER 865 ; R v Carnall [1995] Crim LR 944 (CA); R v Ria [1994] 2 NZLR 212; May v O’Sullivan (1955) 92 CLR 654; Zanetti v Hill (1962) 108 CLR 433; R v Bilick (1984) 36 SASR 321 ; Haw Tua Tau v Public Prosecutor [1982] AC 136 ; R v Trotter (1979) 22 SASR 64; R v Zainudin [2012] SASCFC 133; Tovehead Pty Ltd v Freeman (2003) 175 FLR 311, applied.
Tobi v Nicholas (1987) 86 Cr App R 323; Concrete Constructions Pty Ltd v Plumbers & Gasfitters Employees’ Union of Australia (No 2) (1987) 15 FCR 64; Mills v R [1995] 3 All ER 865 ; R v Glover [1991] Crim LR 48 (CA); R v Carnall [1995] Crim LR 944 (CA); R v Ria [1994] 2 NZLR 212; R v Lawson [1998] Crim LR 883; Edwards v DPP [1992] Crim LR 576 (DC of QBD) ; R v Pahuja (No 2) (1989) 50 SASR 551 ; R v Kilby (1973) 129 CLR 460 ; R v Green [2001] SASC 25; R v Knight (1966) 50 Cr App R 122, discussed.
R v Hart [2004] SASC 363, considered.
R v MURPHY
[2013] SADC 102Criminal trial by Judge alone
INTRODUCTION
1 The accused Shaun Jabangardi Murphy (Murphy) is charged on an Information dated 1 January 2013 with one count of aggravated causing harm with intent to cause harm contrary to s24(1)(b) of the Criminal Law Consolidation Act 1935 (CLCA).
2 The alleged offence is detailed in the Information as follows:-
“Statement of Offence
Aggravated causing harm with intent to cause harm. (Section 24(1)(b) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Shaun Jabangardi Murphy on the 3rd day of April 2012 at Elizabeth, caused harm to Daylene Kamara Miller, intending to cause her harm.
It is further alleged that Shaun Jabangardi Murphy used an offensive weapon namely a knife when committing the offence.”
PROCEDURAL MATTERS
Trial by Judge alone
The accused pleaded not guilty to the charge and elected to be tried by a Judge without a jury pursuant to s7 of the Juries Act 1927. The accused’s application was granted and the trial commenced before me on 29 May 2013. Mr R Trevarrow appeared as Counsel for the Director of Public Prosecutions (the DPP) and Mr R Coates appeared as Counsel for the accused.
Rule 15 Notice
The accused filed a Rule 15 application. I do not have a copy of that application on the Court file. I was informed at the commencement of the hearing that the Rule 15 point had been resolved and that the DPP had agreed not to lead evidence from a particular witness or at least had agreed not to lead particular evidence from that witness.
There was no Notice of Intention to Adduce Evidence of Discreditable Conduct under s34P(4)of the Evidence Act.
REASONS
It is my responsibility to disclose sufficient reasons to explain the verdict that I have reached in this matter.[1] Although the Court of Criminal Appeal in this State has recently confirmed that it is not necessary in a trial heard by a Judge alone for the Court to detail in the reasons for verdict what may be described as obvious directions of law in respect of which any trial Judge is bound to be aware, it is my view that there are a number of fundamental directions which apply in every criminal trial.[2] Although these matters are well known and have been recorded elsewhere [3] it is appropriate that I repeat them here.
[1] Douglass v R [2012] HCA 34 at [14]; R v Keyte (2000) 78 SASR 68.
[2] R v R,R and R,LJ [2008] SASC 35 at [42].
[3] R v MR reasons for verdict of his Honour Judge Beazley 8 May 2013; R v Panetta reasons for the verdict of his Honour Judge Chivell 24 May 2013.
The accused comes before this Court with the presumption of innocence in his favour. The law regards him as innocent unless and until his guilt of the charged offence has been proved beyond reasonable doubt. In the context of this case, the accused is innocent of any specific act of aggravated causing harm with intent to cause harm unless the prosecution has satisfied me of his guilt beyond reasonable doubt.
In assessing the evidence of any witness, I am entitled to accept the evidence of the witness in whole, in part or not at all. Even if I were to find that a witness may be unreliable about some of the evidence, it does not follow that I must not accept other parts of that witness’s evidence.[4]
[4] Hargraves v R [2011] HCA 44 at [25].
The accused is charged with one count aggravated harm with intent to cause harm to Daylene Kamara Miller (Ms Miller). As Ms Miller has not been called to give evidence, the prosecution case is almost entirely an inference case and there was no opportunity afforded to the accused to cross examine Ms Miller or to test her credibility or reliability.
The accused does not have to prove anything and he was not obliged to give evidence. At trial, the accused elected not to give evidence on oath but to leave it to the prosecution to prove its case beyond reasonable doubt. I have drawn no inference adverse to the accused in consequence of him exercising his right to silence.
Only proof beyond reasonable doubt by the prosecution can give rise to a conviction. It follows that if I am left with a reasonable doubt as to any element of the charge I am then considering, I must give the accused the benefit of that doubt and find him not guilty of that charge.
Elements of the charged offence of aggravated causing harm with intent to cause harm
Under s24(1)(b) of the CLCA, a person that causes harm to another intending to cause harm is guilty of an offence.
That provision relatively reads as follows:-
“24—Causing harm
(1) A person who causes harm to another, intending to cause harm, is guilty of an offence.
Maximum penalty:
(a) …
(b) for an aggravated offence—imprisonment for 13 years.”
The elements to be proved beyond reasonable doubt are as follows:-
1. The accused deliberately inflicted the harm and it was not done accidentally;
2. That the intentional actions did in fact cause harm to the victim (Ms Miller);
3. In this context, harm as defined includes physical and mental harm and can be either temporary or permanent and includes pain;
4. That when the accused carried out the alleged action, the harm, the accused did it intentionally to cause harm to Ms Miller and in this context, intention may be formed at any time and does not require pre-meditation. That is, there is no plan or forethought required and the intention can be formed in an instant;
5. There is no lawful excuse for the action;
6. The prosecution alleges an aggravated offence and the circumstance of aggravation was the use of the knife, an offensive weapon, when committing the offence.
Overview
The prosecution did not call Ms Miller in evidence but called the following witnesses: Maryanne Kurundi, the co-owner of the house in which the alleged events took place; Jonas Priestley, the son of Maryanne Kurundi (there is some suggestion in the evidence of a familial relationship between the accused, Ms Kurundi and her children: that evidence is too vague to consider it further here); Gordon Andrew Carter, a close friend of Jonas Priestley; Constable Cook, Senior Constable Glen Shepherd, Senior Constable Luke Andrew McCoy, Senior Constable Mitchell Leigh Puyenbroek, all of whom were stationed at the Elizabeth Police Station and Dr Maureen Gallagher, a medical practitioner who made observations of the wounds on Ms Miller’s body after she had received medical treatment.
Seven exhibits were tendered. Exhibit P1 is a plan of the house at 33 Hayles Road Elizabeth Park in which the offences are alleged to have occurred. It is inaccurate in one respect and I will detail that matter later.
The second Exhibit, P2, is a transcript of a phone call made to the Police Communications Centre on 3 April 2012. The telephone call was made from the Hayles Road address. The third exhibit, P3, is a bundle of 27 photographs to which reference will be made. Exhibit P4 is a knife found beneath a mattress in the room occupied by the victim Ms Miller and the accused at the time of the alleged offences. The location of the knife at the time of its discovery is disclosed in photograph 25 of Exhibit P3. The fifth exhibit, P5, is a paper bag containing a heavily blood-stained t-shirt received by Constable Shepherd from Constable Costigan on the relevant evening. The t-shirt was worn by Ms Miller on the night in question. It is torn and ripped in several places and there are significant rips on the back right hand shoulder area of the t-shirt. Exhibit P6 is a CD-rom of the actual telephone call made to the Police (COMCEN) and Exhibit P7 is a camouflage top taken from the accused by investigating officers on 3 April 2012.
I had the opportunity to assess each of the witnesses called on behalf of the prosecution. In my view, each of those witnesses gave their evidence freely, truthfully and in circumstances where I was able to accept their evidence completely. The evidence of the witnesses was not seriously challenged in cross examination.
Somewhat unusually, the tendered exhibits comprised the recording of a phone call made by Ms Maryanne Kurundi to the police from the Hayles Road property (Exhibit P6) as well as the transcript of that phone call made on that day (Exhibit P2).
Leaving that matter aside, there are a number of evidentiary issues that arise on this evidence. For the purpose of this discussion, it is necessary to set out the content of Exhibit P2 in order to discuss the issues. That Exhibit relevantly reads as follows:-
“COMCEN Police Emergency go ahead caller. Hello Police, this is police
A can I have police at 33 Hayles Road Elizabeth Park
Female screaming in the background
COMCEN What’s the street name?
Female screaming in the background
A I need the police right now. Please it’s an emergency
COMCEN Tell me the address.
Female screaming in the background
A 33 Hayles Road Elizabeth Park.
Female screaming in the background
A I need it right now, it’s an emergency. Someone’s being stabbed. (inaudible)
COMCEN If you move away from the screaming. Move away from the noise
A Yes I am at the door
COMCEN Right tell me the address again. 32
A 33 Hayles Road, Elizabeth Parl.
UK (unknown) PERSON IN BACKGROUND
(inaudible) stab
A I need them right now
COMCEN Don’t shout because it distorts what you are saying
A I’m not going to go in there and have a look at that
COMCEN No I don’t want you to go inside. I want you
A No.
COMCEN 33
A This is my house.
COMCEN Listen to me and stop talking. 33a?
A Hayles Road Elizabeth Park.
COMCEN Hayles Road. Spell it
A HAYLES
COMCEN Thank you. And you’re saying someone’s being stabbed there.
A Just come here please, we need someone here. Promise to come here,
promise
COMCEN I’ve got someone coming. Now what’s your name
A Right now. Someone’s being stabbed and left in our room
COMCEN what is your name
A Maryanne Kurrundi. Me and my husband own this house
COMCEN Maryanne Kurrundi?
A Yep.
COMCEN all right, I’ll get somebody there as quick as we can. Thank you Maryanne
A If you can please now, please right away
COMCEN Ok thank you
A It’s an emergency.
COMCEN Thank you bye
A Thank you.”
Exhibit P6 is the disc recording of that conversation. I will refer to it later in these reasons.
The issue in this matter is, as set out above, whether the accused deliberately inflicted harm upon Ms Miller (that was not accidental). The central issue is whether it has been proved beyond reasonable doubt that the accused stabbed Ms Miller (the victim).
Upon a review of the content of Exhibit P2 it will be seen that on a number of occasions, in response to the police, Ms Maryanne Kurundi tells the police that someone is being stabbed. The word ‘stabbed’ appears within the transcript sometimes as an independent word being spoken by an unknown (“UK”) person or on other times as a term used by Ms Kurundi. It is also included within a question asked by one of the police officers operating the “COMCEN” system.
The issue here that I am required to assess is the probative value, if any, of the statements made by Ms Kurundi that someone is being stabbed. In my view, that evidence is hearsay evidence. Although no objection was made by Mr Coates to its receipt, I am nevertheless bound by the rules of evidence and the question of the admission of that evidence and if so on what basis, amongst the whole of the evidence, that I may have regard to for the purposes of my decision in this matter.
Evidence may be received by me even though it infringes the rule against hearsay evidence. Commonly this is called evidence that falls within the inclusionary rule of the doctrine of res gestae. It is unnecessary for me here to canvass the question of the length and breadth of the rule or whether, as a matter of principle, the question of whether the evidence arising in a particular matter is properly to be considered as falling within a particular doctrine or may be resolved by the application of other evidentiary principles.
What is not in doubt is the fact that there are generally recognised four possible categories of admissibility. They are thoroughly summarised by the learned author of Cross on Evidence[5] (Cross) at chapter 19 commencing at paragraph [37001].
[5] 8th Australian Edition (J.D. Heydon).
Accepting the categories as described by the learned author of Cross for present purposes, the second category that the learned author describes as: “B – SPONTANEOUS STATEMENTS RELATING TO AN EVENT IN ISSUE MADE BY PARTICIPANTS OR OBSERVERS” is pertinent.
This category is, to an extent, associated with the very well known decision of the Privy Council in the case of Ratten v R[6] which upheld the decision of the Full Court of the Supreme Court of Victoria in that matter. The facts of the case are contained in Cross at paragraph [37060] as follows:-
“Ratten was charged with and convicted of murdering his wife by shooting her. His defence was that the gun went off accidentally while he was cleaning it. There was evidence that the deceased was alive and apparently well at about 1.12 pm when the accused said that, after he had phoned for an ambulance, the police phoned him at about 1.20 pm. The prosecution called a telephone girl who swore that, about 1.15, a woman with a hysterical voice had phoned from the accused’s house asking for the police, and that, the speaker having rung off, she spoke to the police who, in their turn, had phoned the accused.”
[6] [1972] AC 378 (PC).
The evidence of the girl on the telephone was admitted. On appeal, the Judicial Committee held that this evidence was rightly received on two bases. It was not necessarily hearsay evidence because the call was relevant and may be used to contradict the accused’s statement that his call for the ambulance was the only one going out of the house between 1.12 and 1.20pm. By that time Mrs Ratten was dead.
The second use to which the evidence could be put was that a woman speaking in a hysterical tone and wanting to speak to the police was evidence from which a jury might infer, from that circumstantial evidence, that the woman could only be Mrs Ratten and she was in a state of fear owing to the emergency. The issue is not whether the assertion made by the caller was true but it was to be assessed on the basis that it may be assumed that the words were used by the caller and involved an assertion of some matter of fact and in that case that she was being attacked by the accused. Although a hearsay statement, the Judicial Committee held that the statement formed part of the res gestae and amounted to an assertion by the deceased that she was frightened by something her husband was saying or doing.
Lord Wilberforce said[7] that the statement must have been:-
“…so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded… [If the Judge] decides that the statement was made by way of narrative of a detached prior event so that the speaker was so disengaged from it as to be able to construct or adapt his account he should exclude it… the test should be not the uncertain one, whether the making of the statement should be regarded as part of the event or transaction. This may often be difficult to show. But if the drama, leading to the climax, has commenced and assumed such intensity and pressure that the utterance can safely be regarded as a true reflection of what was unrolling or actually happening, it ought to be received.”
[7] At page 389.
Later in his speech, Lord Wilberforce said[8] that the authorities:
“…showed that there was ample support for the principle that hearsay evidence may be admitted if the statement providing it is made in such conditions (always being those of approximate but not exact contemporaneity) of involvement or pressure as to exclude the possibility or distortion to the advantage of the maker or the disadvantage of the accused.”
[8] At 389.
The learned author of Cross at paragraph [37060] on page 1391 of the text summarises the position as follows:-
“In England, Lord Wilberforce’s approach has been taken as stating the law.[9] The House of Lords said:[10]
(1) The primary question which the judge must ask himself is – can the possibility of concoction[11] or distortion be disregarded?
(2) To answer that question the judge must first consider the circumstances in which the particular statement was made, in order to satisfy himself that the event was so unusual or startling or dramatic as to dominate the thoughts of the victim, so that his utterance was an instinctive reaction to that event, thus giving no real opportunity for reasoned reflection. In such a situation the judge would be entitled to conclude that the involvement or the pressure of the event would exclude the possibility of concoction or distortion, providing that the statement was made in conditions of approximate but not exact contemporaneity.
(3) In order for the statement to be sufficiently “spontaneous” it must be so closely associated with the event which has excited the statement, that it can be fairly stated that the mind of the declarant was still dominated by the event. Thus the judge must be satisfied that the event which provided the trigger mechanism for the statement, was still operative. The fact that the statement was made in answer to a question is but one factor to consider under this heading.
(4) Quite apart from the time factor, there may be special features in the case, which relate to the possibility of concoction or distortion. In the instant appeal the defence relied upon evidence to support the contention that the deceased had a motive of his own to fabricate or concoct, namely a malice which resided in him against O’Neill and the appellant because, so he believed, O’Neill had attacked and damaged his house and was accompanied by the appellant, who ran away on a previous occasion. The judge must be satisfied that the circumstances were such that, having regard to the special feature of malice, there was no possibility of any concoction of distortion to the advantage of the maker or the disadvantage of the accused.
(5) As to the possibility of error in the facts narrated in the statement, if only the ordinary fallibility of human recollection is relied on, this goes to the weight to be attached to and not to the admissibility of the statement and is therefore a matter for the jury. However, here again there may be special features that may give rise to the possibility of error. In the instant case there was evidence that the deceased had drunk to excess, well over double the permitted limit for driving a motor car.[12] Another example would be where the identification was made in circumstances of particular difficulty or where the declarant suffered from defective eyesight. In such circumstances the trial judge must consider whether he can exclude the possibility of error…
My Lords, the doctrine of res gestae applies to civil as well as criminal proceedings… I wholly accept that the doctrine admits the hearsay statements, not only where the declarant is dead or otherwise not available but when he is called as a witness. Whatever may be the position in civil proceedings, I would, however, strongly deprecate any attempt in criminal prosecutions to use the doctrine as a device to avoid calling, when he is available, the maker of the statement. Thus to deprive the defence of the opportunity to cross-examine him, would not be consistent with the fundamental duty of the prosecution to place all the relevant material facts before the court, so as to ensure that justice is done.”[13]
[9] R v Nye and Loan (1977) 66 Cr App R 252, adding as a special condition of admissibility, erroneously in the light of R v Andrews, a reference to the possibility of error; R v Turnbull (1984) 80 Cr App R 323; R v Blastland [1986] AC 41 at 58; R v Andrews [1987] AC 281; Tobi v Nicholas (1987) 86 Cr App R 323; Concrete Constructions Pty Ltd v Plumbers & Gasfitters Employees’ Union of Australia (No 2) (1987) 15 FCR 64; R v Glover [1991] Crim LR 48 (CA).
[10] R v Andrews [1987] AC 281 at 300-1; Mills v R [1995] 3 All ER 865 at 875-76 (PC); R v Carnall [1995] Crim LR 944 (CA); R v Ria [1994] 2 NZLR 212.
[11] This apparently includes “fabrication of dishonest motive”: R v Lawson [1998] Crim LR 883 at 884 (CA).
[12] Edwards v DPP [1992] Crim LR 576 (DC of QBD) is similar.
[13] Evidence has been admitted when the prosecution has unsuccessfully taken all reasonable steps to procure the attendance of the witness: Edwards v DPP [1992] Crim LR 576 (DC of QBD). However, it is not strictly a bar to admissibility that the maker of the statement is available and could have given evidence: Attorney-General’s Reference (No 1 of 2003) [2003] 2 Cr App R 29 at [18].
A slightly unusual feature in this matter is that the maker of the relevant statement, Maryanne Kurundi has been called to give evidence but the person who has allegedly been stabbed and therefore affected by the event, being the only person who could have communicated the fact of stabbing (if it occurred) to Maryanne Kurundi, namely Ms Miller, was not called to give evidence. The evidence pertaining to Ms Miller is the tendered Exhibits, the evidence of the other witnesses, the medical evidence and the agreed facts. Mention should be made of one piece of evidence namely the recording of the screams of Ms Miller at the relevant time of the phone call and I will deal with those matters later.
In this case, the statements to the police by Maryanne Kurundi are inadmissible to prove that Ms Miller was stabbed by the accused for two reasons. First, they are not made in “…such conditions (of approximate contemporaneity) of involvement or pressure (as to exclude the possibility of concoction or distortion) to the advantage of the maker or the disadvantage of the accused…”[14]
[14] R v Andrews [1987] AC 281 at 300-1; Mills v R [1995] 3 All ER 865 at 875-76 (PC); R v Carnall [1995] Crim LR 944 (CA); R v Ria [1994] 2 NZLR 212.
Second, as will be clear from the evidence, Ms Kurundi was not in any relevant way involved in the alleged act itself although she witnessed the events that occurred both prior to the event and during its aftermath. She does not therefore fulfil a relevant condition of involvement despite the fact that she was called to give evidence in relation to the event.
In my opinion, the only basis upon which this evidence may be accepted is to prove the fact that at the relevant time, Ms Kurundi made a telephone call to the police and that she made the complaints therein set out. It does not, one way or the other, inform the question of who may have inflicted the stab wounds. I am required to be satisfied upon those matters beyond reasonable doubt based upon the evidence before the Court led by the prosecution.
Very helpfully, a statement of agreed facts between the parties was tendered. It reads as follow:
“Statement of Agreed Facts
R v Murphy
1. DNA
The steak knife, (exhibit P4) located by police under the mattress in the bedroom at 33 Hayles Road, Elizabeth Park where both the accused and the complainant were located by police at the time of the alleged stabbing was examined by the Forensic Science Centre. A single source of DNA was found in the blood like staining on the cutting edge on the blade of the knife which matched the DNA sample provided by the complainant.
Located on the handle of that knife was a mixed DNA profile from at least three contributors. The accused’s DNA and the complainant’s DNA were found to be present on the handle of the knife.
A cutting of a portion of a blood like stain from two separate portions of the t/shirt worn by the accused at the time of the alleged stabbing (exhibit P7) was examined by Forensic Science Centre. It contained a mixed DNA profile of at least two people, in both areas the accused’s and the complainant’s DNA were found to be present.
2. Injuries
The complainant was examined on the 3rd and 4th day of April 2012 by doctors and found to have the following injuries:
·Right Shoulder, 1.2cm wound, 3 sutures back of right shoulder
·Right upper chest, small incised wound
·Left inner thigh,5mm laceration
·Right upper shoulder region, 1.5cm curved laceration
·Right upper thigh buttock, sutured wound, 2 sutures
·Left upper outer thigh, sutured wound, 3 sutures
·Bruises and scratches around the front of her neck
·2cm superficial cut to the front of her left wrist
3. Both complainant, Daylene Miller and the accused Shaun Murphy, had nil alcohol in their blood when examined at Forensic Science Centre. Daylene Miller had a therapeutic concentration of Lignocaine in her blood at the time of examination.
Blood samples were taken from Daylene Miller when she was admitted to Lyell Mc Ewin hospital in the evening of 3/4/12. Blood samples were taken from the accused, Shaun Murphy the following evening at approximately 8:00pm.
No drugs were detected in the blood of the complainant or the accused.
4. The black polo shirt (P5) was worn by the complainant, Daylene Miller on the night of 3/4/12. It was seized by police and examined at Forensic Science Centre and extensive blood like stains were observed on the polo shirt. The polo shirt was not examined for DNA profiling.”
It will be apparent that the wounds suffered by Ms Miller on the night in question are admitted and thus the question for my determination is whether the prosecution has proved beyond reasonable doubt that the accused inflicted those wounds upon the body of Ms Miller and the other matters as alleged that are required to be proved beyond reasonable doubt.
The weapon alleged to have been used was a knife located in a bedroom under a mattress. That bedroom was occupied by the accused and Ms Miller in the house owned by Ms Kurundi and her husband. I will deal with those matters later but I first refer again to Exhibit P1.
This is the house plan of the property at 33 Hayles Road Elizabeth Park. It is inaccurate in that there is no opening from the lounge into the kitchen/dining area. The wall dividing those two rooms is unbroken. However, in a further inaccuracy, there is a doorway that exists on the wall of the lounge room that runs on the right hand side of the entry door and also generally adjacent to the wall on the bedroom number 3. The doorway in that wall is situated at the point immediately prior to the joinder of the wall between the lounge and the kitchen and that wall. This door allows occupants of the lounge to see into the hallway area and to have access to the three bedrooms, the hallway, as well as the wet areas, shown on Exhibit P1.
The positioning and existence of that doorway (and the absence of any opening from the lounge to the kitchen) is disclosed in photograph 3 of Exhibit P3. This photograph shows a view from the lounge through the doorway towards the hallway and in the background of the hallway, to the linen cupboard. The grey door on the right hand side of that photograph is the front door of the house and a comparison of that photograph and Exhibit P1 shows the actual geographical layout of the house.
In light of the views that I have formed and expressed about the limited basis of the admissibility of the content of the report by Ms Maryanne Kurundi to the police, it is apparent that the case for the prosecution is a circumstantial evidence case.
My task in that respect is to decide which facts are established from the evidence and what inferences then arise from those facts, and in particular do those inferences, taken together with all of the other evidence, prove to my satisfaction that the charge against the accused has been proved beyond reasonable doubt.
Again in that context, I am unable to reach a conclusion of an inference sufficient to satisfy that burden unless I am satisfied that it is a rational inference and as well, that it is the only inference that arises from the circumstances that I find to have been proven.
Circumstantial evidence
It is plain that circumstantial evidence involves the drawing of inferences. In this case, the prosecution seeks that an inference be drawn from all of the circumstantial evidence that the accused caused harm to Ms Miller intending to cause her harm and used an offensive weapon, namely a knife, when committing the offence.
On a circumstantial evidence case, the accused’s guilt must be the only rational inference which can be drawn from that circumstantial evidence. In doing so, those same circumstances must exclude any reasonable hypothesis other than the guilt of the accused. It follows that if there is a reasonable explanation of the circumstances which is consistent with the innocence of the accused, he must be found not guilty because that reasonable explanation would be sufficient to constitute a reasonable doubt. Similarly, if an inference or hypothesis which is consistent with the innocence of the accused is open on the evidence then the accused must be given the benefit of that doubt and in that respect, one circumstance in the accumulation of a series of circumstances is all that is sufficient.
It is not the end of the matter that there may be a reasonable possibility that some other circumstance may have led to the injury suffered by Ms Miller. If that is the case, then that possibility could then be excluded by the prosecution beyond reasonable doubt and if the prosecution is able to achieve that position, then I may be satisfied beyond reasonable doubt that the circumstances therefore exclude any reasonable hypothesis other than the guilt of the accused.
The principles set out above are very well known and well settled and do not require the recitation of authorities. It is appropriate that I merely summarise the relevant principles that are applicable in this matter and which operate in respect of the considerations that I am about to undertake. Those principles are as follows:-
1. In determining whether an inference is reasonable, I must consider the evidence as a whole;
2. A reasonable inference can be drawn from a combination of facts none of which used alone would support that inference;
3. I am not required to analyse each circumstance individually;
4. The individual primary facts used to establish guilt need not of themselves each be proved beyond reasonable doubt in order for guilt to be established beyond reasonable doubt;
5. Even though one particular circumstance considered alone, does not give rise to any reasonable inference of guilt, it is not necessary to reject that circumstance but to consider its weight in the context of the weight to be given to it in the context of the united force of all of the circumstances put together. One disparate piece of evidence may resolve the doubt about another piece of evidence;
6. It is not the case that my task is merely to attempt to accumulate all of the relevant pieces of circumstantial evidence. There is a distinction to be made between an accumulation of circumstances in which the individual circumstances need not of themselves be proved beyond reasonable doubt and cases where guilt is proved by sequential reasoning in which the intermediate facts must be proved beyond reasonable doubt.
7. What is necessary for a conviction is that I reach a conclusion that the accused is guilty of the offence charged beyond reasonable doubt by virtue of the combined force of the circumstantial evidence that I find proved; and
8. It is not for the defence to establish some inference other than guilt should reasonably be drawn from the evidence nor is it necessary for the defence to prove particular facts that would tend to support such an inference. If the evidence, viewed as a whole, is susceptible of a reasonable alternative explanation, then the accused is entitled to be acquitted.
In the view that I have formed of the relevant factual circumstances in this case, it is not necessary to presently focus upon the distinction between the two alternatives described in paragraph 6 above. Here, the case as presented by the prosecution against the accused is based upon an accumulation of circumstances and does not require the prosecution to prove every fact and every piece of evidence relied upon beyond reasonable doubt in order to prove circumstantially that the accused was the offender.
In my opinion, I am in a position where I may properly draw the necessary inferences leading to a verdict in this matter (i.e. proof beyond reasonable doubt) or alternatively dismissal of the charge, having regard to the whole of evidence admitted in this trial. In that context, I remind myself again that no burden falls upon the accused and the entire burden falls upon the prosecution.
In that context, it is appropriate now to also address Exhibit P6: the actual audio recording of the conversation that is transcribed in Exhibit P2. Both exhibits P6 and P2 were admitted into evidence by consent. In my opinion the actual evidence before the Court is the content of Exhibit P6. I have decided to use Exhibit P2 only as an aide memoire.
The audio recording in Exhibit P6 discloses quite clearly the voice of Maryanne Kurundi making a request for police attendance. Ms Kurundi identified her voice in evidence. There are lesser noises on the disc but there is one other major noise apart from Maryanne Kurundi. That other noise, at times, drowns out the voice of Maryanne Kurundi on the telephone. That other major noise is the sounds of a woman screaming. It is loud to the point of drowning out all other noise and it is of a nature that is so disturbing that it may properly be described as terrified and terrifying. Maryanne Kurundi gave evidence that this was the voice of Ms Miller.
There was no challenge to the receipt by me of that evidence. In my view, I am able to accept and place appropriate weight upon the evidence of Ms Kurundi that identified the source of the screaming as being Ms Miller. I may also then draw any inference that I consider is available to me having regard to the existence of that evidence and of all the other evidence admitted in this matter – on the basis as set out above.
In light of those matters, it is necessary to survey the admissible evidence mindful that this is an inference arising within a circumstantial evidence case and mindful of the level of satisfaction required as I have described above.
The evidence
In evidence, Ms Kurundi informed me that when looking at Exhibit P1, being the plan of the relevant house, Ms Miller and the accused occupied bedroom 1 on the plan. There was no door on the bedroom and only a sheet of material that covered the door. Inside the bedroom, there was a bed and a mattress on the floor, and there were other articles belonging both to Ms Kurundi and her husband as well as to the accused and Ms Miller.
Ms Kurundi recalls that in the afternoon of 3 April 2012 she was in her bedroom, bedroom 2, with her husband. At the time, her husband was in bed ill and she was attending to him.
Ms Kurundi said that she was having a drink during the afternoon and she did not leave the house during that time. There were other people in the house late in the afternoon and in the early evening. She identified Jonas Priestley, her son, and his friend Gordon Carter, who were in the lounge room. The accused and Ms Miller were in bedroom 1. As far as Ms Kurundi can recall, the accused and Ms Miller had been in their bedroom all day.
Ms Kurundi recalls that some time after about 7:00pm in the evening, she was called into bedroom 1 by Ms Miller. Ms Kurundi had a conversation with the accused and Ms Miller in bedroom number 1. She recalls that she was asked by Ms Miller and the accused whether or not they could obtain for their own use a flat screen TV. They wanted to watch something that was on a USB that they had. Her son Jonas had a flat screen TV that he was then at that time using in the lounge room of the premises. Ms Kurundi went to the lounge room and asked her son if the accused and Ms Miller could use the flat screen TV. He refused. He was using it and he and Gordon Carter were watching, or were going to watch, a movie.
She said that she then went back to bedroom 1 and stood at the door and told Ms Miller and the accused that they could not have her son’s flat screen TV.
Ms Kurundi says that at the time that she stood at the doorway to speak to Ms Miller, she saw Ms Miller on the floor. She was naked. The accused was standing with his back to the doorway. He had pulled his pants down. When Ms Kurundi saw this and informed Ms Miller about the TV, she then went back to the bedroom to be with her husband. She did not go back into bedroom number 1 that evening.
After she went back into her bedroom, Ms Kurundi recommenced drinking. It is not clear to me how much Ms Kurundi drank. She was not cross examined on the topic. The evidence records that she had a “24 pack earlier” and later bought herself a “fruity lexia”. There was no evidence of what the “24 pack” may have comprised. It is also not clear whether Ms Kurundi drank a “24 pack” of any type of alcohol. As there was no cross examination on the topic, I will leave that matter aside.
Ms Kurundi gave evidence that later in the evening she spoke again to Ms Miller. At that time Ms Miller came from bedroom 1 to the doorway of bedroom 2. Ms Kurundi gave evidence that Ms Miller said to her that the accused was going into the kitchen to grab a knife.
At that time Ms Kurundi was sitting on the floor of the bedroom next to her husband who was on the bed. She says that she saw the accused walk from bedroom 1, past the doorway of bedroom 2 and head towards the kitchen area. She said this occurred shortly after Ms Miller spoke to her and within a minute or two of being told by Ms Miller that the accused was going into the kitchen to grab a knife. Ms Kurundi said that she moved to the doorway of bedroom 2 which was adjacent to the doorway of bedroom 1. Ms Miller had moved away from the doorway of bedroom 2 and was standing between the doorways of bedroom 2 and bedroom 1.
When Mr Murphy came from the kitchen direction towards the bedrooms, Ms Kurundi asked Mr Murphy whether he had a knife. She told him to pull his shirt up to see whether he had a knife in his pants. The accused pulled up his shirt and said that he did not have a knife. He then turned around and said again that he did not have a knife. He was wearing tracksuit pants and a greyish coloured shirt.
At that time, Ms Kurundi said to the accused that they did not want any trouble here, if you have got a knife we do not want any trouble because her husband was sick. After that conversation, Ms Kurundi said that the accused walked towards the doorway of bedroom 1 and physically pulled Ms Miller back into the bedroom. Ms Kurundi then went back and sat down next to her husband in bedroom 2.
Ms Kurundi then recalls that almost immediately after returning to sit next to her husband in bedroom 2, Ms Miller commenced screaming. It was coming from bedroom 2. Ms Miller was saying that the accused was stabbing her and said these words:-
“Oh Maryanne” and “it’s your brother, can you tell him not to stab me otherwise youse will be in trouble.”[15]
[15] T14.24-26.
Ms Kurundi thought that the screaming of Ms Miller went on for five to ten minutes. She was sufficiently scared by it that she would not go into bedroom 1. She said that about the same time her son Jonas Priestley started calling out to her as well and she thinks that at about that time Ms Miller went towards the toilet which was near bedroom 2. She heard her son calling out to her, asking her to tell Ms Miller to put some clothes on. Apparently Ms Miller was dressed only at that time in the black t-shirt that I have referred to earlier. Her son asked her to call the police. Ms Kurundi also recalled that one of the noises made by Mr Murphy was to tell Ms Miller to be quiet. She heard him say that in amongst the other noises that she heard.
Ms Kurundi came from bedroom 2 into the lounge room and rang 000. Present in the lounge room were her son Jonas and his friend Gordon Carter.
Ms Kurundi said that she did not go into bedroom 1 at that stage because the screaming was continuing and soon after the telephone call the police arrived. She stayed in the lounge room until the occupants of the house were removed to the footpath. She confirmed that there was only one 000 call made to the police that night. After listening to the record of the phone call (Exhibit P6) and identifying the screaming recorded on the phone call, Ms Kurundi confirmed that the screaming was that of Ms Miller’s. There were no other females in the house that night.
Ms Kurundi was also shown a bundle of photographs, Exhibit P3. She identified photograph 4 as looking from the lounge room/kitchen area down the hallway. The photograph identified the doorway to bedroom 1 in the background and also identifies on the right hand side of the doorway the pink sheet material that was used as the “door” to cover the doorway of bedroom 1. Although she had earlier said that Ms Miller had gone to the toilet, she later confirmed to me[16] that at the time that she was screaming in the house, she was only in bedroom 1. In cross examination, Ms Kurundi corrected what appears to be an error in her police statement in which Ms Kurundi is alleged to have said that she heard Ms Miller ask the accused to “stab her”. She confirmed that she recalls distinctly hearing Ms Miller say words to the effect that she, Ms Kurundi, should tell the accused not to stab her (Ms Miller). I am satisfied that this prior statement was in error, and this error may well be a transcription error. Mr Coates very correctly made very little if anything of this matter in his submissions. I remind myself that it is necessary to assess this inconsistency and for me to assess whether it will cause me any concern in relation to the credibility and the reliability of the evidence of Ms Kurundi. I have done so. I am satisfied beyond reasonable doubt that the version of events given by Ms Kurundi in evidence was correct and that the witness statement that she gave to the police does not diminish the reliability or the credibility of her evidence on this topic.
[16] T19.11-15.
The prosecution also called Jonas Priestley in evidence. He confirmed that on 3 April 2012 he was living at the address at 33 Hayles Road Elizabeth Park with his mother and his step-father Arthur Firstgood, the husband of his mother. He also confirmed that Gordon Carter was present in the house together with the accused and Ms Miller.
Mr Priestley informed me that in the late afternoon of 3 April 2012 he was at home watching DVDs in the lounge room. He confirmed that he used the lounge room as his bedroom. He also confirmed that his mother and Arthur slept in bedroom 2 and that the accused and Ms Miller used bedroom 1.
He recalls that at about between 10:00 and 10:30pm on the evening of that day, he and Gordon were watching a movie on his television. At the time he recalls that the accused and Ms Miller were in bedroom 1 and his mother and step-father were in bedroom 2. He recalls that during the afternoon and evening when he was watching television, he could hear noise coming from bedroom 1. He recalls that there were occasions when Ms Miller screamed out for the attention of his mother. He recalls hearing Ms Miller scream out to his mother words to the effect of: “…help me Maryanne, he’s stabbed me”.[17] When he heard that, he shouted out to his mother asking her whether she was going to do something and she replied that she was going to call the police. He recalls that his mother came into the lounge room and rang the police from the lounge room. He said that when the phone call of his mother’s was happening, he said that he could hear screaming coming from bedroom 1 and it was still going on. He said the screaming went on for at least 4-5 minutes. After his mother rang the police, he went out to the front of the house and when he did so, he could still hear the screaming going on inside the house. The person screaming was Ms Miller. He did not go into bedroom 1 at that time.
[17] T23.5.
Gordon Carter, the friend of Jonas Priestley, also gave evidence. He recalls being at the address at 33 Hayles Road Elizabeth Park on 3 April 2012. He had previously been at the house of his cousin but he recalls going to Jonas’ house and they were watching a movie during the evening. He recalls that in the house at the time were Maryanne Kurundi and Jonas Priestley’s step-father. He recalls that he arrived at the house at about 8:00 to 8:30pm. He recalls that they put a movie on the television. He said that a little time later, there was a very big commotion near the room in which he was sitting. He said that the commotion was coming from an area then occupied by an uncle and auntie of Jonas Priestley. He recalls that this auntie and uncle were in the kitchen and he was in the lounge room. Upon being shown Exhibit P1 he confirmed that he was sitting in the lounge room watching a movie. He recalls that there was noise occurring between the accused and the person now known as Ms Miller whilst they were in the kitchen together. He said that there was then an escalation of noise when they went back into the bedroom which was bedroom 1. He said that he heard a “big commotion” between these two other people and said that that “commotion” escalated. He recalls that Jonas’ auntie (Ms Miller) came running out of the bedroom and she was covered in blood and stuff. He said that this “freaked him out”[18] and then he said to his auntie Maryanne (Kurundi) to ring the police because “…he did not want to witness a murder and that is what is happening…”[19] What he heard was “…a big lot of commotion coming from the bedroom and that it escalated…”[20]
[18] T49.7.
[19] T49.8-9.
[20] T49.13-16.
He said that when he saw Ms Miller come out of the bedroom there was an obvious amount of blood on her. The commotion was a lot of loud noises and it was escalating. He described it as escalating from “verbal to physical and then… that’s when I knew something bad was going to happen…”[21] He said that the commotion was kind of like someone getting bashed, that is what it sounded like. He said that auntie Maryanne (Kurundi) was standing right next to him and Jonas in the lounge room. He thought that the other woman was in bedroom 1. The accused was also in bedroom 1.
[21] T49.19-21.
He was present when auntie Maryanne (Kurundi) rang the police and he said that there was still screaming going on when the phone call took place. He said the screaming was not as bad when the phone call took place. It had been worse in the period prior to the phone call being made. He said he then went out, left the home and went out the back, sat on the step and waited for the police to arrive.
When asked to describe what he saw of (Ms Miller) at the time that she left bedroom 1 after the commotion had escalated and he heard the screaming he said:-
“I seen, like, some of her clothes being ripped and she had a stab wound and yeah I just freaked out from there because I never seen nothing like that and yeah I just went out the back and sat started freaking out…”[22]
[22] T50.21-25.
A number of police officers gave evidence. Senior Constable Alex Cook gave evidence that upon attending at the address at 33 Hayles Road, he went into the lounge room of the house and he came to a doorway at which point he could hear some moaning coming from inside the house. This is the doorway shown on Exhibit P1 and in the photographs being Exhibit P3 in the lounge room area. He could hear a female moaning while he was in the lounge room area. He then walked out of the lounge room area towards bedroom 1. He said he could see a female and a male sitting facing towards him in the area of bedroom 1. He recalls that when he turned to look at the male and female (the accused and Ms Miller) he heard the female say “I’ve been stabbed”.[23] He turned his attention to the male sitting behind the female. The female was seated first and facing him through the doorway. The male was seated behind her. The male was the accused. He asked the male to show his hands but he did not comply with his direction. When he directed the male to show his hands, the female (Ms Miller) “scrambled free”[24] and came towards him. She then left the room. When he looked on the ground in the room where the female had been, he saw blood on the ground and on a mattress in the room.
[23] T26.33-34.
[24] T27.13-14.
Constable Glen Philip Shephard was also called to give evidence. He informed the Court that he arrived at the scene at 10:30pm. When he arrived he saw that there was an ambulance there and he saw an Aboriginal female receiving treatment. He then proceeded to obtain a preliminary statement from Maryanne Kurundi. After doing that, he received a package from Constable Costigan being a paper bag which contained a t-shirt that had been seized from the victim after receiving treatment in the ambulance. He then went into the house at 33 Hayles Road. He searched bedroom 1. He saw two mattresses on the floor and he saw what he thought to be blood on one of the mattresses. He picked up the corner of one of the mattresses and saw a knife and what appeared to be blood on the knife.[25] He then notified Senior Constable Murphy who then photographed the knife. He said the knife was directly under the corner of the mattress. It was a type of steak knife of between 10 and 15cms in length. It was black handled and there was blood on the blade. It was then photographed. He refers to photograph 25 which indicates the mattress being lifted and the knife being identified. There are also other photographs within Exhibit P3 showing blood on the relevant mattresses inside the bedroom. Reference is made to photographs 20, 21, 22, 23, 24 and 25. Also, reference is made to photographs 26 and 27 which show close-ups of the knife.
[25] The knife is Exhibit P4.
He transported the blood soaked t-shirt previously worn by Ms Miller back to the police station in a brown paper bag. He gave evidence that the brown paper bag is quite thick but when he put it down briefly on his desk, there was an ooze of blood through the bag at that stage. He then stored the exhibit.
Constable Luke Andrew McCoy also gave evidence. He arrived at the scene at 33 Hayles Road when other police officers had already arrived. He saw the victim, Ms Miller, being escorted to the front door and he observed that she was only wearing a black t-shirt that was blood soaked. He observed that Ms Miller was quite distraught and distressed and he observed a laceration to her upper right shoulder on her back, a laceration to her inner left forearm and also another laceration on the inside of her left thigh. All of the lacerations were still bleeding freely. He observed that the t-shirt on the back was torn at the point of the laceration and he could observe a puncture wound on the back of the victim, Ms Miller. He confirmed in questions from me that he could see through the rip in the t-shirt to the skin of the victim and that it was bleeding.[26]
[26] T39.27-31.
Detective Leigh Puyenbroek was also called to give evidence. He attended the scene at 33 Hayles Road on the relevant evening of 3 April 2012. When he arrived, Ms Miller was in the back of the ambulance about to be transported to the Lyell McEwin Hospital. He made observations of the injuries sustained by Ms Miller. He noted that on her right shoulder, around the shoulder blade, there was a deep laceration about 1 inch deep which appeared quite bloody. He also noted that she had a puncture wound laceration to her inner left thigh and a laceration to the left forearm. In particular, in relation to the laceration on the left forearm, he noted that it was on the underside of the forearm which he called the fleshier part of the forearm. It was about 2 ½ inches long.
Finally, the prosecution called Dr Maureen Gallagher, General Practitioner. Dr Gallagher saw Ms Miller on 4 April 2012, the day after the relevant events. She saw her at the Royal Adelaide Hospital. She made the following observations of her:-
1.An abrasion on the upper left cheek;
2.A shallow laceration or possibly an incised wound with some fresh blood on the upper left cheek;[27]
[27] An incised wound is one with clear and defined edges through the skin generally caused by a sharp implement such as a knife or razor blade, or a sharp edge of broken glass.
3.There was a long curvilinear abrasion on the lip portion of the neck. These abrasions were dried and scabbed in the lower right side of the neck;
4.There were superficial curved abrasions which could also have been an incised wound coated with blood on the right thumb. This was a sharp and shallow wound;
5.There was tenderness and swelling of the left third finger with a deep abrasion in the area;
6.On the right shoulder there was a 1.2cm suture wound and there were three sutures in that wound. The wound was located on the right shoulder, on the back of the victim. There was also a 4mm abrasion which was dry but with early signs of healing on the right upper shoulder area;
7.There was a 1.5cm curved laceration or possibly an incised wound with dried blood and a red bruise anterior to that incision located on the lateral outer right upper shoulder. There was tenderness noted on the upper back around the region of the 4th rib;
8.On the chest there was a small incised wound on the right upper chest with three long red marks with bruising on the right upper chest;
9.There was an area of deep tenderness on the abdomen and on the right upper buttock there was a wound which was sutured with blue sutures;
10.On the right lower thigh there was an 8mm laceration which was dry with no signs of healing;
11.On the left inner thigh there was a 5mm laceration which was dry with early signs of healing;
12.On the left upper outer thigh there was a sutured wound with 3 blue sutures on the wound.
Dr Gallagher confirmed that suturing a wound helps to reduce the amount of blood loss that occurs from the wound and assists with the healing process and the cosmetic outcomes.
Dr Gallagher was asked her opinion in relation to the characteristics of a self-inflicted wound. She said that there are some characteristics of self-inflicted wounds. They tend to be more shallow and of the same depth throughout the length of the wound. Dr Gallagher said that they are generally on areas of the body that are more accessible for example the anterior chest or the face or the neck or the thigh. There is generally no damage to clothing and they tend not to be in the areas where there might be increased sensitivity.
In her evidence in chief, Dr Gallagher was asked in particular about the wound on Ms Miller’s right shoulder on her back. Dr Gallagher thought that it was very difficult to determine whether that wound could be a self-inflicted injury. She thought that it did not generally fit the pattern but that was as much as she could say. When asked her opinion, she said that the injuries did not fit the characteristics of self-inflicted injuries.
No case to answer
Mr Coates made a submission that there was no case to answer at the close of the prosecution case. The essential feature of his submissions was that there was no direct evidence of what occurred in bedroom 1 on the particular evening. The only evidence before the Court is the complaints made by Ms Miller to Ms Kurundi and the distress shown by her and the injuries.
Mr Coates submitted that in respect of the injuries, Dr Gallagher could not exclude the possibility that those injuries were self-inflicted wounds. However, Dr Gallagher did not accept that they were self-inflicted wounds and could not explain how a wound could be inflicted by Ms Miller with that particular knife on her own right upper shoulder blade.
Mr Coates then submitted that in the absence of evidence as to anyone seeing what occurred in the bedroom, a reasonable hypothesis arises that the injuries were self-inflicted or would fall into the category of self-harm. Ultimately the issue was one of causation with respect to those injuries.
The second point raised by Mr Coates was that there was no evidence that the knife that was found in bedroom 1 and the handle of which contained DNA of Ms Miller and the accused and the blood on the blade of which belonged to Ms Miller was the sharp object which caused the wounds. His argument was that because it appears both the accused and Ms Miller may have handled the knife (on the handle) then in the absence of direct evidence of what occurred in the bedroom it is a reasonable hypothesis that the handling of the knife may have occurred post some of the injury and that the blood on the knife may be explained by some other mechanism which caused the bleeding and hence the blood found its way to the blade of the knife. Alternatively, in this respect, the DNA of Ms Miller was on the handle of the knife because it explains that the wounds were self-inflicted.
The third matter raised by Mr Coates in this context was in relation to the question of the evidence of the distress of Ms Miller. He referred to the Court of Criminal Appeal decision in R v Hart [2004] SASC 363. This was an appeal against a conviction where the appellant had been charged with false imprisonment, threatening life and common assault. By a majority verdict the jury found the appellant not guilty of the charge of false imprisonment but guilty by majority of threatening life and by unanimous verdict of common assault. The Court of Criminal Appeal rejected the appeal and found that there was evidence that the jury were entitled to accept and that justified the verdicts reached and that the trial Judge’s directions were adequate.
In particular, Mr Coates referred to paragraph [55] of the judgment of the Court of Criminal Appeal which relevantly reads as follows:-
“[55] The jury were also entitled to consider the evidence of Mr Bottroff’s state of distress and the complaints made to his sister, Natalie Mikon, that morning when assessing Mr Bottroff’s credibility. Evidence of a victim or witnesses’ distressed state immediately after the alleged offending is admissible for the limited purpose of evidence of consistent behaviour and as part of the whole circumstances surrounding an alleged offence. It may be evidence of a witness’s credibility, however it cannot be used as evidence of guilt of the accused. As observed in R v Pahuja (No 2),[28] evidence of complaint and distress is not probative but may assist a jury in determining the credibility of the witness. In the case of Knight,[29] referred to by Olsson J in Green,[30] the court warned against over emphasising the probative value of evidence of distress, re-iterating that evidence of distress will normally only be admissible as evidence of consistency of behaviour.”
[28]R v Pahuja (No 2) (1989) 50 SASR 551 at 575. See also R v Kilby (1973) 129 CLR 460 at 468 and R v Green [2001] SASC 25.
[29] (1966) 50 Cr App R 122.
[30] [2001] SASC 25 at [145].
The point made by Mr Coates and which I accept, is that evidence of a victim’s distressed state immediately after alleged offending is only admissible for the limited purpose of evidence of consistent behaviour and as part of the whole circumstances surrounding an alleged offence. It cannot be used as evidence of guilt of the accused but it may be used as evidence of the credibility of a witness. In that respect, as no evidence was called by Ms Miller, this second aspect of the use of distress evidence is not applicable in this case.
Therefore, in the context of this matter, and in accordance with the submissions of Mr Coates, the evidence of the distress of Ms Miller may only be used by me as admissible evidence for the limited purpose of evidence of consistent behaviour (i.e. consistent with the assertion made by her that she had been stabbed by the accused) and as part of the whole circumstances surrounding the alleged offence (to be considered in the context of the evidence given by Ms Kurundi, Mr Carter, Mr Priestley and the police officers).
It follows, and I accept, that it is not possible for me to use a process of reasoning from the alleged distress of Ms Miller to the guilt of the accused.
Mr Coates’ submission was that in the absence of any direct evidence on any matter that may have occurred within bedroom 1, then neither the complaints nor the distress can be elevated to the position whereby those matters could satisfy the Court beyond reasonable doubt of the guilt of the accused and to exclude any other hypothesis other than that the accused was guilty.
In the context of these submissions, Mr Coates admitted that it appears on the evidence that there may have been some form of physical confrontation or scuffle between the accused and Ms Miller but says that this fact is not inconsistent with any defence hypothesis because it does not exclude the reasonable hypothesis that the injuries could have been self-inflicted and that hypothesis is not gainsaid by Dr Gallagher’s evidence.
In response, Mr Trevarrow said it is not reasonably open to infer that the complainant, Ms Miller stabbed herself and that on the Crown’s case, the distress evidence is only admissible because it shows consistency of behaviour. That evidence is consistent with the fact that Ms Miller was distraught. She had gone through a traumatic event consistent with having being stabbed.
Mr Trevarrow pointed to the evidence of all of the witnesses in the house being consistent only with the possibility (beyond reasonable doubt on the prosecution case) that Ms Miller was stabbed and that the accused was the person who inflicted the stab wounds upon her. That was also consistent with the complaint made by the complainant to Constable Cook when he first approached her when she was sitting in the bedroom, and she said “I’ve been stabbed”. Also consistent is the fact that Mr Carter made observations of the complainant that when she came out of bedroom 1, her clothes were ripped and she was covered in blood. Mr Trevarrow pointed to that fact as contra-indicating any suggestion of self-inflicted wounds because there were some superficial injuries, abrasions and bruising but there was also significant accompanying screaming and that was prolonged for a period of between 5 and 10 minutes as was heard on the Exhibit P6.
There are a number of well settled principles to be considered regarding the submission of no case to answer put on behalf of the accused. In summary they are:-
1. The question to be decided is whether the accused could lawfully be convicted on the evidence presented before me[31] and this can be achieved by looking at every element of the offence and determining whether evidence exists, or could be inferred from the circumstantial evidence, to prove or disprove the elements of the offence;[32]
2. His Honour King CJ in R v Bilick[33] gave consideration to this issue by adopting the reasonable person test. His Honour said:-
“Where the case is a circumstantial or partly circumstantial case and therefore depends on inferences, the question may be expanded so that it becomes: On the assumption that all the evidence of primary fact considered at its strongest from the point of view of the case for the prosecution, is accurate, and on the further assumption that all inferences most favourable to the prosecution which are reasonably open, are drawn, is the evidence capable of producing in the mind of a reasonable person satisfaction, beyond reasonable doubt, of the guilt of the accused?”
3. In the case of Haw Tua Tau v Public Prosecutor[34] the Privy Council ruled that if the evidence put forward by the prosecutor is so implausible that no reasonable person would accept its truth, then this evidence does not need to be taken at its highest form (beyond reasonable doubt). Likewise, if the prosecution evidence is generally weak that does not necessarily mean the application of no case to answer should be upheld. As long as there is some evidence presented on each of the elements of the offence, further evidence can be adduced by the defendant if the defendant elects to give evidence;[35]
4. An application for no case to answer should only be upheld if the elements of the offence presented in the prosecution case could only infer a reasonable suspicion or speculation that the offence was committed,[36] or if, on the evidence, there is a possibility of two versions of events, one which would lead to acquittal of the accused, and neither version is more probable than the other then the no case to answer submission should be upheld.[37]
[31] May v O’Sullivan (1955) 92 CLR 654.
[32] Zanetti v Hill (1962) 108 CLR 433.
[33] (1984) 36 SASR 321 at 337.
[34] [1982] AC 136 at 151.
[35] R v Trotter (1979) 22 SASR 64.
[36] R v Zainudin [2012] SASCFC 133.
[37] Tovehead Pty Ltd v Freeman (2003) 175 FLR 311
I am of the view that the accused could lawfully be convicted on the evidence presented before me. That evidence is capable of producing in the mind of a reasonable person satisfaction beyond reasonable doubt of the guilt of the accused. The evidence presented by the prosecution is of sufficient strength that it comfortably exceeds evidence that may only infer a reasonable suspicion or speculation that the offence was committed.
I therefore accept the submissions made on behalf of the prosecution on the question of the no case to answer submission. In the view that I have formed, I agree that I could not possibly or in any way reasonably infer that the injuries to Ms Miller were self-inflicted. I could not, and do not, entertain any reasonable possibility of that being the case. It follows that notwithstanding the correctness of Mr Coates’ submissions in relation to the question of consistency of conduct, I rejected the application of the accused.
In light of my decision, it is appropriate that I announce the factual matters that I am satisfied arise based upon both the evidence given directly by the witnesses and arising as inferences that I am prepared to accept as a result of the circumstantial evidence in this case.
Factual findings
I am satisfied beyond reasonable doubt of the guilt of the accused and I make the following findings:-
1. The accused and Ms Miller as at 3 April 2012 resided at the house property at 33 Hayles Road, Elizabeth Park, a home owned by Maryanne Kurundi and her husband;
2. The accused and Ms Miller occupied one of the bedrooms in the house, identified as bedroom 1 on Exhibit P1. Within that bedroom at the relevant time were mattresses on the floor, clothing and possessions of the accused and Ms Miller and some belongings of the owners. There was no physical door on the room, a piece of pink coloured cloth was hung over the door so as to cover the doorway;
3. On 3 April 2012 (the relevant day) Maryanne Kurundi was occupied in bedroom 2 (as shown on Exhibit P1) in the care of her sick husband. She was in that room for much of the day;
4. On the day, the accused and Ms Miller stayed in bedroom 1 on Exhibit P1 for most of the day;
5. Towards early evening (and it is not possible to be specific about the time) also present in the house were Jonas Priestley, the son of Maryanne Kurundi and his friend Gordon Carter. Jonas Priestley and Gordon Carter were in the lounge room of the house and were watching a television owned by Jonas Priestley. Jonas Priestly used the lounge room as his bedroom. Gordon Carter recalls that he arrived at the house at around 8:00 to 8:30pm and he recalled that he had been at a number of other places before that time;
6. In the early evening and sometime after 7:00pm, Ms Miller called Ms Kurundi from her bedroom (number 2) into bedroom 1. Ms Miller asked Ms Kurundi whether she and the accused could use the television belonging to Jonas Priestley so as to use it in their bedroom exclusively to watch something stored on a USB drive that they possessed;
7. Ms Kurundi then went to the lounge room of the house and asked Jonas Priestley whether Ms Miller and the accused could use his television. Jonas Priestley refused the request as he was then watching or planned to watch a movie on the television in company with Gordon Carter. Gordon Carter attended the house on that evening for that purpose;
8. Ms Kurundi returned to bedroom 1, stood at the doorway and spoke to Ms Miller. At that time, Ms Miller was naked and lying on the floor of the room. The accused was standing with his back to the doorway and therefore to Ms Kurundi. His trousers/pants were pulled down. Ms Kurundi informed Ms Miller that Jonas Priestley was not prepared to give his television to them and she then returned to bedroom 2 to be with her husband;
9. Later in the evening, Ms Miller came to the doorway of bedroom 2. Ms Kurundi was sitting next to her husband who was on the bed in that bedroom. At that time, Ms Miller wore a black polo t-shirt. She was otherwise naked;
10. At that time, Ms Miller spoke to Ms Kurundi: she said that the accused was going to the kitchen to grab a knife. At the same time, Ms Kurundi saw the accused walk behind Ms Miller and moved towards the kitchen of the home;
11. Ms Kurundi moved to the doorway of bedroom 2 and as she did so, Ms Miller moved back towards the doorway of bedroom 1 and stood between the doorways of the two rooms;
12. Ms Kurundi saw the accused walk from the direction of the kitchen; she asked him whether he had a knife which he denied. Ms Kurundi asked the accused to pull up his shirt; he did so and said that he did not have a knife. At that time, the accused was wearing track-pants and a greyish coloured shirt;
13. Ms Kurundi then said to the accused that she did not want any trouble with knives in her house and this was because her husband was sick;
14. The accused then walked towards and into bedroom 1 and pulled Ms Miller into that bedroom;
15. Ms Kurundi then immediately went and sat down next to her husband in bedroom 2;
16. There was a noise like a commotion that was increasing in intensity coming from bedroom 1;
17. As soon as Ms Kurundi sat down next to her husband after having spoken to the accused, she heard screaming of a female coming from the direction of bedroom 1. The voice was that of Ms Miller;
18. Ms Miller was screaming that the accused was stabbing her. Ms Miller screamed out to Ms Kurundi: “…oh Maryanne, it’s your brother, can you tell him not to stab me because youse will be in trouble…”[38]
[38] T14.24-26.
19. I find that either during the course of that altercation or immediately upon its cessation the accused stabbed Ms Miller using the knife that is identified in the photographs in Exhibit P4. The accused stabbed Ms Miller in the places identified by Dr Gallagher and the police officers as set out earlier in this judgment;
20. The screaming that Ms Kurundi heard was of such intensity that Ms Kurundi refused to go into bedroom 1;
21. The screaming of Ms Miller lasted at least ten minutes and in that time, Ms Kurundi heard the accused tell Ms Miller to be quiet;
22. At that time, Jonas Priestley commenced calling to his mother from the lounge room asking her to tell Ms Miller to put some clothes on and to call police. At that time, Ms Miller continued only to wear the black t-shirt as previously described;
23. Ms Kurundi did not go into bedroom 1. She came out of bedroom 2, went to the lounge room and used the telephone to ring the police. At around that time, Mr Carter saw Ms Miller. He saw that her polo t-shirt was ripped, that there was obvious blood on her body and that she was screaming very loudly. The screaming, though loud, later subsided a little after Ms Kurundi called the police;
24. At that time, and for five to ten minutes after that, Ms Miller was screaming. The volume and intensity of that screaming is evident from the playing of the recording of the triple 000 call on Exhibits P1 and P2;
25. The police attended the home. At that time, Ms Kurundi, Mr Priestley and Mr Carter had vacated the home. Mr Carter had gone out the back door of the home. Ms Kurundi’s husband remained bedridden in the home. The accused and Ms Miller remained in bedroom 1;
26. Constable Cook entered the house, proceeded through the lounge room and into the hallway of the home;
27. Constable Cook saw two people facing him sitting on the floor in bedroom 1. The first person he saw, closest to the door, was Ms Miller. She sat facing him. She was wearing a black polo shirt and no other clothes;
28. Ms Miller spoke to Constable Cook. She said that she had been stabbed and when she said this she scrambled towards Constable Cook;
29. Sitting behind Ms Miller and also facing the doorway of bedroom 1 was the accused. After taking Ms Miller out of the house, Constable Cook then dealt with the accused in bedroom 1. He was handcuffed. When doing so, Constable Cook noticed there was blood on the ground and on the mattresses and on the walls of the room. He did not search the bedroom;
30. Ms Miller was taken out of the house and was eventually treated by the ambulance officer. Detective Puyenbroek identified that there was deep laceration on Ms Miller’s right shoulder in the area of the shoulder blade. It was bleeding. Detective Puyenbroek also noticed that the accused had a puncture wound laceration to her inner left thigh that was also bleeding. He noted that she had a 2 ½ cm laceration to her left forearm, that is the left under side of the forearm which is the fleshier part of the forearm. It was about 2 ½ inches long;
31. The black polo shirt that Ms Miller was wearing was seized. It was blood soaked and there was a significant rip over the right shoulder but at the back of the shoulder i.e. on Ms Miller’s back;
32. Upon a search of bedroom 1, the police discovered a black handled kitchen knife. A forensics test disclosed that the DNA of Ms Miller and the accused were found on the handle. There was blood on the blade. The blood was identified as that belonging to Ms Miller;
33. Later examination by Dr Gallagher disclosed injuries to Ms Miller that were consistent with her having being stabbed with a knife and also there were abrasions on the face and body of Ms Miller, including bruising of the body and soreness in the rib area. I have earlier set out these injuries in detail and I will not repeat them.
Rejection of the existence of any reasonable hypothesis
Based on these findings, I am unable to accept as a reasonable hypothesis that Ms Miller inflicted the wounds that she suffered on the relevant evening. I am satisfied beyond reasonable doubt, by the conflation of the facts as I have set them out above that the only inference that arises on the facts as I have set them out is that the accused stabbed Ms Miller as alleged.
I also find for the same reason and on the same process of reasoning that the act of stabbing Ms Miller was intentional and that such act was the cause of the injuries suffered by Ms Miller.
I am so satisfied because of the accumulation of the circumstances that I have set out above.
It follows that I am satisfied beyond reasonable doubt of the following matters:-
1. The accused deliberately inflicted the harm upon Ms Miller and it was not done accidentally;
2. The intentional actions did in fact cause the harm to the victim, Ms Miller;
3. The harm in this instance was physical harm that included the stabbing of Ms Miller with the knife and other injuries that caused pain;
4. When the accused carried out these actions, which caused the harm, he acted intentionally to cause harm to Ms Miller;
5. There is no lawful excuse for the actions of the accused;
6. The offence is an aggravated offence because of the use of the knife which is an offensive weapon when committing the offence.
Verdict
I find the accused guilty of the offence as charged.
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