R v Parker
[1993] QCA 444
•4/11/1993
| IN THE COURT OF APPEAL | [1993] QCA 444 |
| SUPREME COURT OF QUEENSLAND |
C.A. No. 311 of 1993
Brisbane
[R. v. Parker]
T H E Q U E E N
-v-
TIMOTHY LAWRENCE PARKER
Appellant
The
President
Mr Justice Pincus
Mr Justice Thomas
Judgment delivered the 4th day of November 1993
Reasons for judgment prepared by the President separately and Pincus J.A. and Thomas J.
jointly, all agreeing in the order to be made.
APPEAL DISMISSED.
CATCHWORDS:
Criminal law - evidence - incompetence of spouses to give evidence at common law - statutory
position under s. 8(6) Evidence Act.
Spouse's refusal to give evidence - whether directions adequate to avoid prejudice - Demirok v.
The Queen (1977) 137 C.L.R. 20 distinguished.
Criminal law - appeal against conviction unsafe and unsatisfactory ground - adequacy of
circumstantial case.
Criminal law - intemperate address by prosecutor - Judge's directions - no miscarriage of justice.
Evidence Act 1977-1979 s. 8.
Leach v. R. [1912] A.C. 305.
Demirok v. The Queen (1977) 137 C.L.R. 20.
Pernich and Maxwell (1991) 55 A.Crim.R. 464.
R. v. M. [1991] 2 Qd.R. 68
| Counsel: | N. McGroarty and P. Feeney for the Appellant R. Devlin for the Respondent |
Solicitors: | Messrs A.W. Bale and Son for appellant Director of Prosecutions for respondent |
Hearing date: 12th October, 1993
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
C.A. No. 311 of 1993
Brisbane
Before The President
Mr Justice Pincus
Mr Justice Thomas
T H E Q U E E N
v.
TIMOTHY LAWRENCE PARKER Appellant
REASONS FOR JUDGMENT - THE PRESIDENT
Judgment delivered 04/11/93
The circumstances giving rise to this appeal are discussed in detail in the judgment of Pincus JA and Thomas J. I agree with their Honours that the appeal should be dismissed.
I am comfortably satisfied that the conviction was neither unsafe nor unsatisfactory. On the contrary, there was a strong circumstantial case against the appellant, which included his claim of memory loss and his false assertions concerning the time when he arrived home and the extent of his contact with the deceased on the day when he was killed. It does not render a conviction unsafe and unsatisfactory that the prosecution does not prove beyond reasonable doubt every matter on which it relies for example, motive, opportunity and the identification of the murder weapon; what must be established beyond reasonable doubt are the offence charged and its essential constituent elements.
Probably the strongest point for the appellant concerned the times given by witnesses for various events; e.g. the times of the appellant's departure from McCarthy's house and of the first distress call at about 10.15 p.m.. However, it is common experience that such estimates are prone to error, and for that matter the constable who received the calls may have been mistaken in his identification of the first caller as the person who made the later call, i.e., Mrs Parker.
It is unnecessary to pursue these questions. The appellant was entitled to have the matters relied upon before the jury and on this appeal considered with the other evidence for any effect which it might have in weakening the case against him, but by no means can it be concluded that, because of these matters, a reasonable jury, acting reasonably, could not or should not have been satisfied beyond reasonable doubt of the appellant's guilt.
Nor do I consider that either of the two specific points raised by the appellant, grounds 1 and 3, entitle him to a new trial.
I agree generally with what Pincus JA and Thomas J. have said in relation to ground 3, and have nothing to add.
So far as concerns ground 1, I am persuaded that the course adopted by the trial judge of explaining Mrs. Parker's absence to the jury not only did not cause a miscarriage of justice but, in the circumstances confronting his Honour, was the appropriate means of avoiding a mistrial. The jury's questions showed their concern at Mrs. Parker's absence, and, that being so, the issue could not sensibly be ignored by the judge. It was incumbent on him to caution the jury against any speculation adverse to the appellant, and it was better on this occasion to explain to them, in terms by no means unfavourable to the appellant, why they should not speculate, rather than merely leaving them to guess at the reason and perhaps draw an inference against the appellant's interest when they did so.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
C.A. No. 311 of 1993
Brisbane
The President
Mr Justice Pincus
Mr Justice Thomas
T H E Q U E E N
-v-
TIMOTHY LAWRENCE PARKER
Appellant
REASONS FOR JUDGMENT - PINCUS J.A. AND THOMAS J.
Judgment delivered the 4th day of November 1993
This is an appeal against a conviction of murder. The following grounds were argued.
1. The learned trial Judge erred in law in that in the course of summing up to the jury His Honour impermissibly made reference to the fact that the wife of the appellant had "failed" to give evidence.
2. The conviction was unsafe and unsatisfactory in that any jury ought have had a doubt by reason of the following matters:-
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| 3. | The trial of the appellant miscarried because the Crown Prosecutor engaged in an inappropriate and unfair attempt to persuade the jury to draw inference of fact, and accept argumentative suggestions, that were not properly open on the evidence, neither cured nor capable of being cured by direction. The appellant (Parker) was a stockman who lived on the outskirts of Rockhampton. |
Between 26 and 30 May 1992 he mustered cattle in company with Mr McCarthy and Mr Collins (the victim). The three men, having finished the muster, returned to a hotel in the district in which the appellant and his wife lived. They drove there in a truck which had been loaned to the appellant. They drank together, firstly at the hotel and then at McCarthy's home, until a time that could be estimated as between approximately 9.45 and 10.20 p.m. Collins then drove off in the truck. The appellant left on foot soon after. McCarthy telephoned Mrs Parker. At 10.15 p.m. a distressed female voice (which the evidence suggests was that of Mrs Parker) made an emergency call to 000, but the content of the call was not given in evidence. Some time before 11.45 p.m., and probably well before that time, Collins was bludgeoned to death by a blunt instrument whilst on the appellant's property. His body was dragged to a position just outside the front fence of the property. Mrs Parker telephoned Mr Titmus, a friend of the appellant and his wife, at 11.15 p.m. and he arrived at 11.45 p.m. and was shown Collins's body. The appellant was at that stage at home. Mrs Parker called the police at 12.15 a.m. The appellant told the police that he remembered drinking beer at McCarthy's, but that he remembered nothing after that, "not a thing", until the police arrived.
Blood splatters of the same kind and type of blood as that of the deceased were found on the appellant's right shoe. A thick aluminium pipe, consistent with being the murder weapon, was found on the seat of the appellant's Toyota utility parked in the shed on the premises. It contained a blood spot of the same kind as that of the deceased.
The case will be set out in greater detail in discussion of ground 2, but the above statement is sufficient to permit discussion of ground 1.
Ground 1 - Mrs Parker's failure to give evidence
The argument presented on behalf of the appellant is based upon the response by the learned trial Judge to a number of written questions asked by the jury shortly before an adjournment in the course of the Crown Prosecutor's address. At that point they presented a written list of questions:
"A. Is the jury entitled to ask the following questions?: 1. Who found the body and at what time? 2. What vehicle did Mrs Parker drive to McArthey's residence? 3. How many pages are normally found in an exhibit book? 4. What is Mrs Parker's involvement in this case? 5. Did Mrs Parker first discover the body of Collins? 6. Who removed Parker's belongings from the red truck? 7. Why is Parker not required to give evidence?" (our emphasis)
On any view of the facts Mrs Parker was involved in the relevant events and would have had relevant evidence to give had she chosen to do so. It is hardly surprising that the jury would wonder about her involvement in the case and ask questions of this kind.
During the empanelling process the Crown Prosecutor stated, in accordance with usual practice, the names of the witnesses who might be called by the Crown. One of the twenty-six names then mentioned was "Lorelle Parker, housewife, Hall Road, Gracemere". Before the Crown opening, and in the absence of the jury, Ms Parker was called, and was asked by His Honour whether she was prepared to give evidence in the trial. She indicated that she was not.
For present purposes the following parts of s. 8 of the Evidence Act 1977-1979 are
relevant:
"8 Witnesses in a criminal proceeding ...
(2)
In a criminal proceeding, the husband or wife of each person charged is competent to give evidence for the prosecution or on behalf of the defence.
(3) In a criminal proceeding, the husband or wife of each person charged is
compellable to give evidence on behalf of that person.(6)
Where the husband or wife of a person charged is competent but not compellable to give evidence for the prosecution or on behalf of the defence, the presiding judge, stipendiary magistrate or justice shall before the witness gives evidence and, where the proceedings is being conducted before a jury, in the absence of the jury, inform the witness that he or she is not compellable to give evidence if unwilling to do so."
The original common law rule of incompetence of spouses to give evidence against one another was perhaps developed for more substantial reasons than those suggested by Lord Halsbury, namely "it would occur not only to a lawyer, but to almost every Englishman, that a wife ought not to be allowed to be called against her husband" (Leach v. R. (1912) A.C. 305, 311). Be that as it may, the statutory overlay has produced rules that primarily provide a potential advantage for an accused person, especially when it is remembered that a spouse is now a compellable witness for the accused but not for the prosecution. The present point is concerned with the avoidance of unfair speculation when compliance with the rules leaves an obvious gap in the evidence.
The requirements of subs. 6 were duly followed. Section 8 however provides no answer to the questions that arise in the present case. What is the proper response to a situation where it becomes plain that a jury, it would seem not unreasonably, asks questions about the wife's involvement in the case?
The questions were sent during a short adjournment in the course of the Crown address. The submissions of defence counsel were that His Honour should make "no mention of Mrs Parker whatsoever". This would have required His Honour to ignore the critical questions which had been asked about her, and would have permitted the jury to speculate as they saw fit. The Crown Prosecutor also ultimately made a similar submission, submitting that "it might be safer not to mention Mrs Parker at all".
The learned trial Judge took the view that some mention had to be made of the matter. His Honour was conscious of the problems posed by Demirok v. The Queen (1977) 137 C.L.R. 20 but noted that each trial has its own difficulties which need to be dealt within the context of the particular trial. In the course of his summing up the learned trial Judge informed the jury that as a matter of law an accused person's spouse was not compelled to give evidence, and that the jury could not draw any inference at all from the fact that a spouse does not give evidence. The directions were in the following terms:
"It is also basic to our system of law that an accused person and that person's spouse is not compelled to give evidence and you can not draw any inference at all from the fact that neither the accused nor his spouse gave evidence. That, again, is basic to our system of law. It has been always thus and it remains thus. So, again, there is no inference or speculation that can be drawn from that."
It was submitted on behalf of the appellant that such directions might give the impression that Mrs Parker knew something about the case. It seems to us that the evidence, including matter specifically adduced by the defence, already made it inescapable that that was so, and that this was why the jury sought enlightenment on a number of matters concerning her. It was submitted that the basis of the decision in Demirok was recognition of the danger of harmful speculation by the jury that the spouse, if she gave evidence, would do so to the disadvantage of the accused husband. In that case the presentation of the spouse to the jury as a prosecution witness and letting the jury see her take the objection to giving evidence were calculated to cause the harmful speculation. In the present matter the speculation was already in existence, and it was natural speculation produced by the proper conduct of the case by both prosecution and defence. In these circumstances it is difficult to think that the response of the learned trial Judge in any way contributed to speculation. On the contrary, it gave a legal reason for the situation about which the jury was pondering, and it gave a direction against drawing any inference from the circumstance that Mrs Parker was not called. Some examples of prejudice are so serious that a corrective direction will not suffice to remedy it. But that was not the situation here. There is no reason to think that a fair-minded jury would give any less respect or obedience to such a direction than it would to other directions including the invariable one that the jury is not to draw any inference from the fact that the accused does not give evidence. The fact that His Honour dealt with both of these items in conjunction does not in our view weaken either of them.
Indeed, to have acted as if the jury had not asked these questions would have been the recipe best calculated to produce unhealthy speculation.
It seems to us that the error in Demirok proceeded from the fact that the prosecution quite unnecessarily called the spouse in the presence of the jury and exposed a source of speculation which would not otherwise have arisen. Indeed, on an analysis of Demirok it is difficult to see any reason why the prosecution chose to take that course other than for possible forensic advantage in exciting such speculation. The position is different in a case like the present where the spouse is necessarily shown by the evidence to have been one of the principal actors who was present when relevant events might be thought to have occurred. Indeed, the probability that Mrs Parker made the emergency call at 10.15 p.m. was deliberately brought out by the defence. In the context of the trial there is no reason to think that the jury's questions were stimulated by the Crown Prosecutor's address, or by any wrongful conduct on his part. In such a situation, where the spouse declines to testify for the prosecution, and where the defence chooses not to call the spouse (although the accused has the advantage of compellability) it is difficult to think of any fairer response on the part of the trial Judge than that which was here given.
It should be borne in mind that there was nothing strange about the jury's response to the case or its seeking of answers to the relevant questions. Four actors were involved in relevant events, and only one of them (McCarthy) had been called. A case such as the present one presented a practical problem calling for the best practical solution. This would certainly not have been afforded by pretending that the questions had not been asked or by ignoring the questions.
The situation in Demirok is distinguishable. We do not think that any unfairness resulted to the accused by reason of His Honour's response to the problem or that any error in law or procedure occurred. The direction was appropriately favourable to the accused in that it refrained from pointing out that Mrs Parker would have been a compellable witness at his instance but not at the instance of the Crown. We consider that the learned trial Judge's response was appropriate in the circumstances and that ground 1 fails.
Ground 2 - Unsafe and unsatisfactory
This ground raises four areas of the evidence, but it is fair to say that the argument challenges the sufficiency of the evidence as a whole, and it requires a review of the case as a whole.
The appellant did not give evidence. The only evidence called on his behalf was that of Mr Collins, an expert witness on the question of how blood may have been transferred to the appellant's shoe. It is desirable then to relate the Crown case, noting on the way the criticisms advanced on behalf of the appellant.
At material times the appellant had the use and possession of an International truck owned by a grazier named Angel. He had had it for three or four weeks preceding the night of Collins's death (Saturday 30th May, 1992). On the preceding Tuesday the appellant, Collins and McCarthy commenced a cattle mustering job at Kunwarara and travelled there in Angel's truck driven by the appellant. Horses and dogs belonging to the appellant and to Collins, to be used during the muster, were carried in the truck. They had been placed in the truck at the appellant's property at Gracemere (on the outskirts of Rockhampton) before leaving. Collins's vehicle, with a small horse float capable of holding two horses, was left at the appellant's property. In other words the appellant's property had been used as the loading place for the venture and would again be used for unloading of items such as horses and dogs when the muster was finished.
The muster was completed and on the late afternoon of 30th May the men loaded the horses and dogs into Angel's truck and returned, stopping at the Yamba Hotel and later at the Gracemere Hotel.
Various inferences are open as to the time when the three men left the Gracemere Hotel. They arrived there about 9 p.m., and consumed three stubbies each. McCarthy said that they left the hotel "around closing", but he did not have a watch and he did not pay attention to the clock at the hotel. The bar attendant (Denise Dillon) sometimes drank a beer with patrons after finishing her shift, and did so on this occasion with the men for about five minutes. On the premise that Ms Dillon finished work at 10 p.m., defence counsel was able to obtain McCarthy's acceptance that Ms Dillon commenced her beer in their company at 10 p.m. On that premise McCarthy conceded "it could have been ten past ten - I didn't know what time it was", and that Collins could have been in his company even as late as twenty past ten. (It should be noted that "in his company" includes about another ten minutes after leaving the hotel). However the evidence of Ms Storie, the Manager of the Hotel, was that Ms Dillon finished work that night at about 9.30 p.m.. Ms Storie then took over the bar, and whilst she cannot say the time when she closed the hotel, her evidence suggests that the party may have left before she closed, sometime before 10 p.m.. McCarthy purchased a carton of beer before leaving and was unsure whether he was served by Ms Dillon or Ms Storie. McCarthy thought that Ms Dillon was still present at the hotel when they left, and Ms Storie thought that Ms Dillon had left before 10 p.m.
The evidence therefore leaves open the time at which the group left the hotel, but places it somewhere between 9.35 p.m. and 10.10 p.m.
After leaving the hotel, the men drove to McCarthy's place about 400 metres away. They drank one more stubbie together. During this time Collins and the appellant, according to McCarthy, had an "ordinary sort of argument, wasn't anything heated or nothing". Collins "just got up and walked out". The appellant then "after a couple of swallows and that's all", finished his stubbie, and went. McCarthy considered that the drinking at his place was for a period of between five and ten minutes.
The appellant quickly reappeared, telling McCarthy that the truck had gone. Plainly Collins had taken it. Why Collins took Parker's truck leaving Parker stranded is not known. According to McCarthy the appellant said that Ross (i.e. Collins) must have taken it and that he would be walking home. This, on the evidence would have occurred about ten minutes after leaving the hotel, which would mean that the appellant left McCarthy at some time between about 9.45 p.m. and 10.20 p.m.
McCarthy then saw fit to ring the appellant's wife - "straight away just about", but did not say why he did so. Mrs Parker then appeared in McCarthy's yard only five or ten minutes later which is the period it would take to drive there, which suggests that her response was immediate. The distance between McCarthy's house and the appellant's house was variously described as a five minute drive, a twenty minute walk, or about 3 kms. Mrs Parker left McCarthy's home immediately, and called McCarthy back on the telephone about five minutes later.
At 10.15 p.m. Senior Constable Mabb received a 000 call from a female who sounded "upset, bit distressed". He received a second call at 12.15 a.m. from a voice which he described as "very similar", and under questioning from defence counsel agreed that he was "positive" it was the same woman as the first caller. The 12.15 a.m. call was the one which asked the police to call at the Parker address, and it is common ground that Mrs Parker was the caller on that occasion.
Much was made of the apparent absence of any serious dispute between the appellant and Collins, and the apparent absence of motive. The minor altercation preceding Collins' leaving of McCarthy's house was said to have been in the context of discussion between members of a friendly group. McCarthy agreed in cross-examination that "it was just a friendly gathering with no animosity whatsoever" and that it was not a serious sort of disagreement. The men had worked as a team and had got on "very well".
The appellant denied any ill will when interviewed by the police. All this however must be seen in the context of Collins choosing to leave alone, and take Parker's truck without his permission in circumstances where he would presumably go to the Parker household leaving the appellant at McCarthy's without transport, and of the appellant quickly leaving on foot.
The evidence permits it to be inferred that Collins was bludgeoned to death by a blunt object used with considerable force, causing multiple fractures in the rear part of the skull and a further depressed skull fracture in the area of the left eye. There are also multiple bruises to other parts of the body including two "parallel line injuries" on the body and six on the legs, with injuries to the spleen and left kidney, and an abrasion to the right forearm. Dr Naylor, a forensic pathologist expressed the view with respect to a number of the injuries that they indicated blows from a straight object which he suspected to leave a circular or oval cross-section. They were consistent with having been delivered by a pipe (ex. 59) which was found in the appellant's Toyota utility which was parked in his garage close to his house. It was under a gun case. Group O blood was found on the pipe, consistent with the blood of the deceased or the appellant. The evidence suggests that the bar was sometimes located in a tool box in the tray of the appellant's vehicle and that the appellant used it from time to time for purposes such as tightening chains.
It can safely be inferred that the attack occurred in the vicinity of a mound of dirt close to the boundary of the appellant's property and that Collins was then dragged feet first through the fence and left a short distance outside it. The deceased's hat was found on the ground in the vicinity of the mound of dirt and blood marks were found at various points in roughly a straight line between there and the place where the body was found. Angel's truck was later found parked some distance away from the mound, close to the house and shed, with a deposit of dirt on its rear bar, suggesting that the truck had been backed into the mound for the unloading of the horses. That would be the normal way by which Collins would be expected to have commenced unloading his horses from Angel's truck before leading them to his own horse trailer. Obviously the truck had been later driven away.
Collins's blood was found on a halter which was inside the crate of Angel's truck. A quantity of blood was found inside the crate, but it had apparently been licked by dogs owned by Collins and the appellant (of which there were five) which were still locked in the crate of Angel's truck.
The horses belonging to Collins were running loose in the appellant's paddock. Two of these had halters and ropes attached. The evidence of the deceased's brother was to the effect that the deceased never adopted the practice of allowing his horses to run loose with halters and ropes. It is reasonable to think that Collins was intending to transport only two of his three horses that night and that he had placed the halters on them and was interrupted in the course of transferring these horses from the truck to his horse float.
There was no evidence that any property belonging to any person was taken or removed. At about 11.15 p.m. Mrs Parker telephoned Mr Titmus, who was a friend of the family,
as a result of which he came straight to the Parker property, arriving at about 11.45 p.m. Mrs Parker was standing at the gate and pointed towards a spot where he found the deceased's body. He then entered the property and on reaching the house saw the appellant sitting on the back steps. Titmus said "how are you?" He replied "No good". During further conversation he said that he did not know what happened. Some minutes after this Mrs Parker returned to the house and telephoned the police.
The first policeman to arrive was Constable Mackersey who arrived at 12.37 a.m. He spoke with the appellant and received the following responses:
"Q. Can you tell me what happened here today?
A. What about?
Well I just examined a man outside the front fence and he's dead, so I am trying
to find out what has happened.
A. Yeah, well, I don't know.
Q. Do you know who he is?
A. Ross Collins.
Q. Who is he?
A. I have worked with him for about two years. We were out todaydoing some mustering. He got here last Tuesday night.
Q. When did you get back here from mustering?
A. About 7 o'clock.
Q. What happened then?
A. I came inside.
Q. What did he do then?A. I don't know, unloading the horses or something. A horse might
have kicked him. It happens."
Although the time has been shown to be wrong, this could be regarded as an admission that both men were at the appellant's property at the same time that night. Constable Mackersey also overheard part of a conversation between the appellant and his wife later that night, before he went to the police station. He said "they can't make a case against me, they haven't got anyone to back it up".
The appellant subsequently accompanied police to the station, and took part in a record of interview. He gave a clear description of events that had occurred over the preceding four days. In relation to the more relevant events, the following responses were given:
"Q. What time did you leave Glen-Isla today to come home?
A. Just on dark.
Q. How did you come home? A. In the truck.
Q. Did you bring any horses home? A. Yep, four and three.
Q. Are they your four horses and Collins's three? A. Yes.
Q. Who came home in the truck with you? A. Collins and McCarthy.
Q. Did you come straight home? A. No.
Q. Where did you go? A. Dropped Charlie McCarthy off.
Q. Where did you drop Charlie McCarthy off? A. Gracemere.
QQ. After you dropped Charlie McCarthy off, did you go straight home? A. I
don't remember nothing after that, not a thing.
Q. Do you recall arriving home with the horses? A. No.
Q. Do you recall police arriving at your residence this evening?A. I remember a officer coming there to talk to my wife and talk to
me.
Q. How did the horses get unloaded? A. I don't know."
The blood alcohol level of Collins was found on post-mortem examination to be 0.15%.
The evidence was that the consumption of liquor by all three men was similar.
The appellant admitted that he did not suffer from black-outs.
Blood consistent with that of Collins was found on the appellant's right boot. There are
four areas on that boot containing blood, the main ones being on the instep region and a large area extending from the heel of the boot. There was a "considerable number" of very small spots of blood present. The stain on the instep, in the expert witness Mr Harmon's opinion, could have been obtained by transference, that is to say, by coming into contact with fresh blood either directly from the person or from a bloody object. However the other area revealed a considerable number of small spots varying in size from 1mm to 3mm - about thirty such spots - which were considered by Harman to be mainly high velocity blood spots with the appearance of arterial spurting. They were concentrated on the outer side of the boot with a smaller quantity near the toe. It was not regarded as a "secondary spatter" such as might occur when a drop hits a primary surface and then sprays out onto another surface. When that happens, the spray and the little spots that result are called secondary spatters. In any event, in order to obtain a secondary spatter the boot would have to have been fairly close to the article from which the blood came.
Dr Collins, the expert witness who was called on behalf of the appellant, shortly before trial examined photographs of the scene and evidence of injuries to the deceased and various depositions and statements. He had a fairly short examination of the boot after the commencement of the case. By that time the exhibit had deteriorated and was infected with a white mould. On the initial assumption that the small blood spots relied on by Mr Harmon were between .1 and .3 of a millimetre each, he regarded the theory of arterial spurting as "low on the list" of priorities. When pointed out that the spots were in fact 1mm to 3mm each, he still regarded them as "pretty small" and not the sort or size that would be expected from arterial splash. He considered it possible that the blood could have got onto the boot from walking through blood stained areas. He said it was possible that the deceased's blood was deposited on "shafts" of grass, and if the shafts of grass were disturbed then blood "could be flinged off by just a mechanism whereby it can be deposited on whatever is passing at the time". Another possibility was that it could have been caused by the expiration or blowing out of blood stained fluid from the nose or mouth into the air in which case the object would need to have been within a couple of metres of the body while it was still alive. Mr Harmon rejected the theory of possible transference from the grass or ground to the boot, having regard to the pattern, shape and numbers of the spots.
It is unnecessary to canvass the expert evidence further. Different opinions were expressed and the jury was entitled to prefer one to the other. Quite apart from the expert witnesses, in the circumstances of this case the presence of the deceased's blood on the appellant's boot may be regarded as a significant factor for which in the circumstances of the present case an innocent explanation is difficult to imagine. The evidence of Dr Collins does not have the intrinsic cogency to render the use of this evidence unsafe as a connecting factor between Collins and the appellant at a time when Collins was bleeding freely.
The main points relied on by the appellant can now be mentioned. We do not think it could be held that there was a "proved absence of motive" having regard to the circumstances in which Collins took off in the appellant's vehicle. It is of course not necessary that the Crown establish a motive, but the circumstances are sufficient to suggest the prospect of an aggressive confrontation at the appellant's property.
The conflict in the expert testimony has already been adverted to. It was submitted that the fact of arterial spurting was not proved to the required standard. In our view a reasonable jury could accept the evidence of Mr Harmon on this point. It was not in any event essential that all his evidence be accepted before it would be reasonable to use the presence of the blood on the boot to connect the appellant with the crime. This piece of evidence does not stand alone, and can be viewed in the light of the entire circumstantial case, which consists of many strands.
It was submitted that the evidence showed that the appellant had no opportunity to have been the attacker, because the emergency call at 10.15 p.m. was probably made after the attack, and the appellant was still with McCarthy at that time. This proceeds from the concessions made by McCarthy in cross-examination culminating in the following question and answer: "Can we say this: that at 10.15 that night, about 10.15, Tim Parker was with you? -- Yeah". The above review of the evidence shows that the premise upon which this concession was adduced is highly doubtful, and on a proper analysis of the evidence all that can be said is that the appellant left McCarthy at some time between about 9.45 and 10.20 p.m. Moreover, the time of death is not known, and it is not necessarily a safe assumption that the attack in any event occurred before 10.15 p.m.
Finally it was submitted that although the pipe could have caused the injuries or some of them, and although it had some blood of the deceased upon it, the exhibit was "poorly handled and examined" and that overall there was a failure of proof to the required standard. In our view it is a reasonable inference this weapon was used upon the deceased. The appellant's prior association with it and the fact that it was found in his vehicle soon after are further circumstances tending to connect him with the crime. We have taken into account the appellant's submissions that this bar could have been taken by the appellant to the muster (although there was no evidence that it was); that it could have been carried in another toolbox belonging to the appellant which was in the stock crate of Angel's truck (although that toolbox is quite dissimilar to those kept in the Toyota, which was the only place from which he had been observed to take the bar); that if the bar had been used by the appellant during the muster it is possible that the appellant's blood may have been transferred to it as there was some evidence of scratches on his forearm which may have been caused by wire; and that if the bar was in the toolbox in the crate of Angel's truck at the time of the attack, some other person may have obtained it and used it to attack the deceased. In the end the main point of the submission is not that the bar was not the murder weapon but rather that this line of possibilities strengthens an alternative hypothesis that some other person may have attacked Collins at the appellant's property. We do not think that this submission succeeds in raising or bolstering to the level of reasonable possibility the hypothesis that some person other than the appellant inflicted the injuries.
The above submissions for the appellant neither individually nor collectively persuade us that the conviction is unsafe and unsatisfactory. We have not mentioned all the evidence to which reference has been made, or all the arguments, but having reviewed the case, are prepared to say that an adequate circumstantial case was presented and no basis emerges for thinking that the conviction was unsafe or unsatisfactory.
Ground 3 - Crown Prosecutor's address
Defence counsel, who addressed first, finished his address on the afternoon of the seventh day of trial. The Crown Prosecutor then addressed for approximately an hour during the balance of the afternoon. On the following morning the appellant's counsel sought the discharge of the jury on the basis that the address had gone beyond permissible limits.
It would seem that the Crown Prosecutor disparaged the defence submissions suggesting that in his experience defence counsel try to distract the jury. He used the metaphor of a bird distracting attention from its nest. It was said that he advised the jury that the defence did this distraction technique all the time. It was also said that the prosecutor tended to make statements rather than submissions.
A number of other submissions were made in relation to the Crown Prosecutor's address on factual matters, but to the extent to which it was shown that unfair suggestions on these matters had been made, the Crown Prosecutor undertook to correct these during the balance of his address, and he did so.
There was also a submission that the "general tenor" of the address was such that there was a significant likelihood that the jury would be distracted from the true issues. This included a complaint concerning strong and vulgar language used by the prosecutor on a particular issue.
The learned trial Judge obviously thought that there was validity in some of the criticisms, but not to the extent that would call for termination of the trial. In ruling on the application (in the absence of the jury) His Honour made the following remarks:
"I should say that I thought some of Mr Meredith's remarks went beyond what I had been used to hearing Prosecutors say, particularly in relation to evidence about behaviour of unknown birds, and I would certainly hope that that kind of observation is not repeated. Similarly, phrases such as 'pissed off' do not really have any place in counsel's vocabulary in addressing a jury. However, I am not satisfied overall that the effect of the address is such that any imbalance cannot be corrected in the summing-up, so I will not discharge the jury."
(The reference to "pissed off" is the phrase used by the Crown Prosecutor to describe the probable state of mind of the appellant when Collins disappeared with his vehicle).
In the course of his summing-up His Honour to some extent refuted the "distracting bird" argument and properly described the role of defence counsel which had been disparaged. His Honour dealt with the matter in this way:
"It has become, I think, clear that a trial such as this will produce from the barristers who appear some degree of response. You heard Mr Meredith referring to some unidentified bird which had characteristics that you may or may not have come across and he may have given you the impression that the only reason why we have defence barristers is to produce confusion and red herrings. Now, in our system of criminal law it has been the right of every person accused of a crime to be represented by trained lawyers for about 100 years. It is a right that was won after quite a long debate and struggle and it is one of the cherished rights of our system which has been embraced by every statement of human rights that has been made in this century. It is not something that should be treated lightly or flippantly. About 160 odd years ago one of the Law Lords in England said that the ingenuity of counsel is never misplaced in the defence of a subject. You may or may not watch television and you may or may not have ideas of how criminal trials are conducted for commercial purposes. This trial is conducted according to our system and our system requires that the proof of guilt be made by the Prosecution and that the right of an accused person to be represented in this defence be properly recognised. I am sure you understand that and if you thought at any stage Mr Meredith was getting a little enthusiastic, you will put that aside as something which happens in the tension of a lengthy trial."
It was submitted that the above directions did not sufficiently direct the jury to disregard the comments or mitigate their effect, and that there was a real risk that the prosecutor's remarks wrongly influenced the verdict.
An intemperate and improper address from a Crown Prosecutor can result in a miscarriage of justice and lead to the setting aside of a conviction (Pernich and Maxwell (1991) 55 A.Crim.R. 464; R. v. M. (1991) 2 Qd.R. 68, 81. The question is whether the prosecutor's remarks create a real risk that they wrongly influenced the verdict thus resulting in an unfair trial (Pernich p. 466). It seems to us that although there was a lack of moderation shown by the Crown Prosecutor, its effect was properly curtailed. The inaccurate evidentiary submissions were corrected. The vulgarity, although reprehensible, was little more than an inappropriate expression of a submission he was entitled to make, namely that the appellant was probably angry or displeased. His Honour reinstated the proper role of defence counsel in making his submissions. The learned Trial Judge heard the addresses and was in a better position than this Court to know the actual words and the atmosphere generated. When the matter was further raised after the summing up, His Honour observed with respect to his treatment of this issue - "I certainly meant nothing more than the mildest of chastisement and I wasn't wanting to blow up an issue unduly in a trial which I believe has been conducted particularly well by all counsel involved". We do not consider that the address of the Crown Prosecutor in this instance could have caused a miscarriage of justice.
The appeal should be dismissed.
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