R v Oates

[1998] QCA 230

IN THE COURT OF APPEAL	[1998] QCA 230
SUPREME COURT OF QUEENSLAND

C.A. No. 110 of 1998

Brisbane

[R. v. Oates]

THE QUEEN

v.

ANTHONY JOHN OATES

Appellant

Pincus J.A.
Thomas J.A.

Moynihan J.

Judgment delivered 21 August 1998

Separate reasons for judgment of each member of the Court; each concurring as to the order made.

APPEAL AGAINST CONVICTION DISMISSED.

CATCHWORDS:	CRIMINAL - Appeal against conviction - murder - confessions by accused - contrary account given by co-accused at trial - whether verdict unsafe and unsatisfactory.
Counsel:	The appellant appeared on his own behalf Mr P Rutledge for the respondent
Solicitors:	The appellant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent
Hearing Date:	21 July 1998
REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 21 August 1998

I have read the reasons of Thomas J.A. and agree with them. The appeal must be

dismissed.

REASONS FOR JUDGMENT - THOMAS J.A.

Judgment delivered 21 August 1998

The appellant and a co-accused (Mrs Leesa Lench) were charged with the murder of Mrs Lench’s husband (William Lench). Both appealed against their conviction, but Mrs Lench abandoned her appeal.

The Crown case was that the appellants planned to kill William Lench and that in pursuance thereof on or about 1 January 1996 the appellant went into William Lench’s bedroom, struck him a blow with a tomahawk which killed him, and disposed of the body. The Crown case was based substantially upon admissions alleged to have been made by the appellant to police and to members of his own family. There was also some circumstantial evidence including the lighting by the appellant of a very large fire on the night when Mr Lench was said by the appellant and Mrs Lench to have disappeared.

The appellant’s co-accused (Mrs Lench) gave evidence at the trial. Contrary to earlier accounts given by her to the police which had nominated the appellant as the killer, she claimed in evidence to have been the victim of protracted abuse from her husband, including rape, and that she was the party who killed Mr Lench with the tomahawk. That killing however was submitted to be justifiable as an act of self defence and further issues of provocation were raised on her behalf. The relevant point for present purposes is that she claimed to have delivered the fatal blow, and her story, if accepted, would falsify the material part of the appellant’s confession. The verdicts of the jury would suggest that they did not see fit to act on her account.

Nearly six months after the alleged disappearance of Mr Lench, Mrs Lench made admissions to the police. These directed their attention towards the appellant. They interviewed him in Hobart on 21 June 1996. He told police that he was prepared to state his knowledge of the disappearance and alleged murder of William Lench only after he had read Mrs Lench’s statement. He was permitted to do this, and a recorded interview ensued which included the following:

“HYTCH	Was he alive when you last saw him?
OATES	No he was dead.
HYTCH	He was dead and what do you mean by that?
OATES	He’d been killed.
HYTCH	Do you know how he had been killed?
OATES	Yes by me.
HYTCH	Right when when did you kill him?
OATES	In the early hours of New Years Day.
HYTCH	And how did you kill him?
OATES	With a single blow of small tomahawk axe.
HYTCH	Small tomahawk.
OATES	Axe.
HYTCH	And where was he when this took place?
OATES	In bed.....”

Later the appellant gave a fuller account, including:

“Leesa and I sat down and were talking. She said I can’t put up with this much more and I said well we can fix this problem. I will take you away. She said no, he’ll find me, he’s done it before. We relaxed for a while. A little later on, she said to me what are you going to do? What do you mean, we? She said you know what he’s accusing me of and I said yes. And really more in jest than fact I said well you can always get rid of him. Truly it’s all it was to start with. Unfortunately once the seed was planted it festered like any of those things do. The night before the actual event of Bill’s death I was drinking with Bill. He was telling me what such a good character I was and so forth and I went outside, did a pee, he came up behind me and said what’s going on between you and Leesa and I turned around and said what, and he said what’s going on between you and Leesa, are you fuckin’ her? Don’t be stupid mate. That was it. The next day he was moody all day at Leesa. I walked past him and he looked at me and just real, its like an evil look that the look of saying what are you doing that I don’t know about, which at that stage was nothing. Anyway for some reason we seemed to like playing bingo (U1) monopoly, we started a game of monopoly. I’m never very good at it. I kept losing. All night he was drinking drinking and swearing at Leesa, calling her names, constantly telling him how if he ever found her playing up what he would do to her. About 1 or 1 or 2.30 to 1 1.30 2 o’clock in the morning we finally went to bed. Leesa and I just sat there and I couldn’t tell if it was Leesa or me or brought up the subject together, Bill, what he was going to be like the next day. The events that took place took place and that’s about as much as I want to say about it for now”.

Evidence was also given of statements made by the appellant to his brother-in-law (Mansfield). Having been told of the charge against the appellant Mansfield asked him “Why did you have to kill him? Why couldn’t you and Leesa have nicked off to another state and made a new life?”. The appellant replied to the effect, no, they couldn’t do that because Bill would have followed them and made things hard for them. Mansfield asked how Lench was killed. The appellant replied that they went back to Leesa’s house and that he had gone into the bedroom and hit Bill over the head with a tomahawk.

There was also evidence from the appellant’s stepson, Janson Oates, of a telephone conversation with the appellant in which the appellant told him that he had killed a man. The witness asked “Killed who?”, the appellant said “Bill”, the witness said “Bill who?”, the appellant replied “Bill Lench”. He then gave the phone back to his mother. She (Janette Oates) gave evidence of various conversations with the appellant including one in March 1996 in which he admitted to her that he was having an affair with Leesa Lench. Later, apparently when he was questioned by police, he telephoned her informing her that the police were there (at the hospital where he was recovering from an injury in Hobart) from Queensland to extradite him for the murder of Bill. He told her then that he had killed Bill, that he went into the bedroom with a tomahawk and hit him on the head and that they had buried him or burned his body down behind a shed. She asked him whether the children had seen anything and he said “No”. She had a further conversation with him in the watch-house in which further details were given, but it is unnecessary to refer to these. His son Anthony also gave evidence about speaking to the appellant on the same occasion when he telephoned his former wife and stepson. He told Anthony that he had killed another man and that the man was Bill Lench. The appellant submitted that he had only said to Anthony that he was “implicated” in the murder, not that he had killed the other man. However examination of the record shows that Anthony’s evidence is to the latter effect, and that when it was put to him in cross-examination that a word like “incriminated” could have been used, he said it could have been, but he did not know. There was no retraction of his earlier evidence, and the matter was not pursued further.

The appellant neither gave nor called any evidence in his defence.
He appeared in person on the appeal and supported a written submission consisting of

eleven paragraphs. This was expanded orally. Paragraph 1 alleges that the verdict was unsafe and unsatisfactory; the remaining paragraphs present ten arguments designed to support the primary ground. I shall endeavour to deal with each of these before determining the question whether the verdict was safe and satisfactory.

Paragraph 2 alleges that the Crown Prosecutor had referred in his address to a handwritten statement of the co-accused which had not been received into evidence. Examination of the record however suggests that the document referred to was in evidence, namely ex.30. No such point was raised by either of the two experienced defence counsel or by the learned trial Judge and it would seem that this submission is based upon a misconception on the part of the appellant.

Paragraph 3 complains of the fact that he was not also charged on the same indictment with disposal of the body. He still admits that he disposed of the body, but now denies that he killed Mr Lench. His complaint is that the jury had no choice but to find him guilty of murder in the mistaken belief that should they acquit him he would walk free from the Court. The absurdity of the proposition is evident. The question whether he was guilty or not guilty of murder was adequately litigated.

Paragraph 4 alleges that the Crown “twisted around the time frame of my co-accused’s verbal confession” to her sister, and two friends (Christopher Goodie and Yolanda Wink). The point apparently relates to the change of account given by Mrs Lench at various times, and raises the fact that about four months after they were charged she gave an account closer to that which she eventually gave at trial. Issues concerning her changes of account, and the inferences to be drawn from it were dealt with by both counsel and by His Honour in the summing up. Nothing unfair is revealed in the treatment of those matters.

Paragraph 5 alleges that the evidence of his ex-wife (Janette Oates), his stepson (Janson Oates), his son (Anthony Oates), his brother-in-law (John Mansfield) and the son of the deceased (James Lench) were the result of statements “made outside a time frame to which even a good memory could recall events”. The thrust of the submission is to challenge the accuracy of the admissions which these witnesses respectively claimed he had made to them. He also claims that they must have colluded. The question of reliability of these respective witnesses appears to have been canvassed at trial and I can find no error in the manner in which this evidence was dealt with by the learned trial Judge.

Paragraph 6 submits that ex.41, which was described in evidence as the remains of an innerspring mattress, was in fact “just bits of old 8 gauge fencing wire”. This seems to be a very peripheral matter. The appellant claims that this old wire was tendered as something that it was not in fact. It was actually tendered as something the police found, and the place where it was found was stated. The appellant had already admitted, and still admits that he burned the relevant mattress. His present concern is that he claims to have taken the mattress to the tip and burned it there, and that this object was produced from somewhere else, and that the jury, if they thought that this was the mattress that he burned, would conclude that he was inaccurate or had told lies about where he burned the mattress. This submission is extremely attenuated, and does not warrant further discussion. It was not wrongfully admitted; rather the complaint is that the witness who described it as the remains of a burned mattress was wrong. There was opportunity to litigate that question if counsel had considered it of sufficient importance. In our view there is no substance in this ground.

Paragraph 7 mentions that he had the services of three different barristers at various stages as the matter came to trial, and that ultimately trial counsel was not sufficiently aware of discrepancies in detail that were exposed in evidence given at the committal. However no particularity was given of any forensic mismanagement. A perusal of the records suggests that the appellant was represented by extremely competent counsel. We did not understand this ground, in the end, to have been strongly pressed by the appellant.

Paragraph 8 alleges that some doctors from whom police obtained statements 14 months later were not in fact on duty when the police interviewed him. This seems to underlie a desire to challenge the accuracy of subsidiary details given by the police officers concerning their approach to him when he was in hospital in Hobart. However there has never been any issue as to the fact that he confessed, or as to the accuracy of the record that was taken of the confession. The submission fails to lead to any relevant conclusion concerning the adequacy of the evidence upon which he was convicted.

Paragraphs 9 and 10 re-assert what seems to have been his principal defence at trial, namely that when he confessed to police he was just mirroring his co-accused’s statement and that he did so in order to protect her. It may be noted that no positive evidence to that effect was given at trial, and these suggestions were made on his behalf by his counsel. He asserts that he lied in his interview “so as to try to keep her out of prison and to be with her children”. Such an interpretation of the evidence was obviously rejected by the jury and it was fairly open to them to do so.

Paragraph 11 alleges that the Crown failed to prove that there had been a sexual liaison between him and his co-accused prior to the murder. Certainly there was no direct evidence that sexual relations actually occurred prior to that time, but he has asserted, and still asserts, his love of the co-accused at material times, and it would seem not to matter whether it had been physically consummated prior to the killing. Either way there was adequate evidence of a motive sufficient to make the Crown case a compelling one.

Having considered all the submissions of the appellant there is no basis for thinking that the conviction was unsafe and unsatisfactory. I would dismiss the appeal.

REASONS FOR JUDGMENT - MOYNIHAN J.

Judgment delivered 21 August 1998

The considerations relevant to this appeal are canvassed in the reasons for Thomas J.A. and it is unnecessary for me to repeat the detail in these reasons.

The prosecution case was that the appellant and his co-accused murdered the co- accused’s husband Leach by striking him with a tomahawk and disposing of the body. It was not in issue either at the trial or before us that the appellant had made statements capable of constituting a confession of the murder and that an accurate record of those statements was before the jury. The appellant’s position was that he had falsely confessed in order to exculpate his co-accused. Although he did not give or call evidence that position was squarely before the jury. It is true (Ground of Appeal 11) that it may not have been established that there was a consummated sexual relationship between the appellant and his co-accused prior to the killing. There was however ample evidence in the prosecution case in terms of his protestations and in the explanation for his making the false confession to found a conclusion that there was a relationship, however characterised, between the appellant and his co-accused. The evidence of the relationship, however characterised, was quite capable of founding an inference of a motive for the killing. Put shortly, the Crown case was essentially dependent upon the jury accepting that the appellant had confessed to the murder and that his confession was true. The issues were squarely before the jury and they convicted.

As to the specific grounds of complaint these are detailed and dealt with by Thomas J.A. The appellant was clearly mistaken about a statement not having been received in

evidence; the document he was concerned about was Exhibit 30 (Ground 2). I agree with Thomas J.A. that there is no substance in grounds 3, 4, 5, 6, 7 and 8. A perusal of the record does not provide any basis for concern about the verdict.

The appeal should be dismissed.