R v Soper

[1993] QCA 63

IN THE COURT OF APPEAL [1993] QCA 063

S UPREME COURT OF QUEENSLAND

C.A. No. 245 of 1992

B	risbane
[	R. v. Soper]

T H E Q U E E N

v.

SHANE RUSSELL SOPER

(Appellant)

The Chief Justice Mr Justice Davies Mr Justice Derrington

J udgment delivered the 11th day of March, 1993

Separate reasons for judgment delivered by the Chief Justice, Mr Justice Davies and Mr Justice Derrington. Mr Justice Davies

d	issenting.
A	PPEAL DISMISSED

CATCHWORDS: EVIDENCE - ADMISSIBILITY AND RELEVANCE - Applt convicted of rape and murder on circumstantial case - Wh DNA evidence admissible - Wh trial judge required to instruct on intoxication where some evidence - Wh miscarriage of justice even if summing up in error

Counsel:	A. Rafter for the appellant. B. Butler for the respondent.
Solicitors:	Legal Aid Office for the appellant.
Director of Prose cutions for the
respondent.
Hearing dates:	13 November, 1992 and 3 March, 1993.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	C.A. No. 245 of 1992
Before the Court of Appeal
The Chief Justice Mr Justice Davies Mr Justice Derrington

T H E Q U E E N
v.
SHANE RUSSELL SOPER

(Appellant)

REASONS FOR JUDGMENT - DAVIES J.A. Delivered the 1st day of March 1993

M INUTE OF ORDER:

CATCHWORDS:

Counsel:	Butler for the Crown Rafter for the Appellant
Solicitors:	Director of Prosecution for the Crown Legal Aid Office for the Appellant
Date(s) of Hearing:	13 November 1992
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND	C.A. No. 245 of 1992

T H E Q U E E N
v.
SHANE RUSSELL SOPER

(Appellant)

____________________________________________________
THE CHIEF JUSTICE
DAVIES JA

DERRINGTON J

____________________________________________________

Reasons for Judgment of Davies J.A. delivered the

of March 1993

____________________________________________________

IN THE COURT OF APPEAL

S UPREME COURT OF QUEENSLAND

C.A. No. 245 of 1992

B risbane

Before The Chief Justice Mr Justice Davies Mr Justice Derrington

[ R. v. Soper]

T H E Q U E E N

v.

SHANE RUSSELL SOPER

(Appellant)

JUDGMENT - CHIEF JUSTICE

Delivered the 11th day of March, 1993

A broad outline of the facts necessary for consideration for this appeal has been provided by Davies J.A. and Derrington J. Initially only two points were argued and on the first of them, concerning the DNA evidence, I agree with what they say and do not find it necessary to add anything.

The second point argued was whether the learned trial judge was justified in refusing the request of defence counsel to direct the jury on the matter of intoxication.

Section 28 of the Criminal Code says in part:-

"When an intention to cause a specific result is an element of an offence, intoxication, whether complete or partial, and whether intentional or unintentional, may be regarded for the purpose of ascertaining whether such an intention in fact existed."

The definition of "murder" is provided by s. 302 and the relevant part of it reads as follows:-

"Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say -

(1) If the offender intends to cause the death of the person killed or that of some other person or if the offender intends to do to the person killed or to some other person some grievous bodily harm

.... is guilty of murder."
It is clear that in this case an intention to cause a

specific result was an element of the offence of murder and the Crown assumed the burden of proving it. As Davies J.A. has pointed out, the trial judge instructed the jury that in the circumstances of this case nothing short of actual intention to kill could justify the conviction of the appellant for murder.

Apart from his declining to direct the jury on the issue of intoxication no criticism is made of the trial judge's careful summing up and none is made of the overall sufficiency of the Crown case on both counts. Nevertheless it is necessary in dealing with the issue of intoxication to consider what the Crown evidence proved.

The cases on rape and murder, although they were required to be considered separately, were in certain respects complementary. There was strong scientific evidence that the deceased woman had had sexual intercourse with a male person at about the time she met her death and the DNA evidence pointed to the involvement of a person in a fairly narrow group within the general population which included the appellant.

On both counts the case was a circumstantial one and there were a number of possibilities which the Crown was obliged to exclude. Amongst these were the possibilities that the sexual intercourse had been consensual and that the deceased had met her death other than as the result of the intentional act of the man who raped her. These were live issues at the trial because although the appellant by reason of his proved absence from his home at relevant times during the night had the opportunity to commit both offences there would not have been a sufficient case against him unless the evidence convinced the jury that a single culprit namely the appellant had both raped and killed the deceased. There was the usual interdependence in portions of the evidence overall which is found in cases of a circumstantial character and here evidence connecting the appellant with each relevant event strengthened his connection with the other: involvement in sexual intercourse with the deceased (the scientific evidence pointed in the direction of the appellant) and the positioning of the deceased face down in the drain (the footprint nearby again pointed in the direction of the appellant). The consistency of important separate features of the evidence on both counts and the tendency of those features to implicate the appellant constituted the strength of the case against him.

While the Crown was not obliged to prove motive, unless it was able to convince the jury of the total picture it presented, it would hardly have had a sufficient case against the appellant on either count. It needed to prove that he had raped the deceased, probably first having abducted her in her vehicle; that he had choked her and placed a length of wire against her neck and that while she was still alive placed her face down in the water of the drain with the intention of bringing her life to an end if she were then still alive. He would have caused her to drown so that she would not be able to say who it was who had dealt with her in the fashion described, with the result, as he would have hoped, that he would avoid apprehension for his wrong doing. The guilty verdict which the jury brought in on the murder count meant that they were persuaded that the outline just given was what had occurred.

Although on the hearing of the appeal there was no general challenge to the sufficiency of the Crown case it is necessary to place the proved actions in context when judging what the circumstantial evidence can be taken as showing with respect to the wrong doer's intention at the relevant time and when judging the significance of the evidence which may have shown that the appellant was intoxicated.

So far as intention is concerned the question for the jury was not simply what intention must be imputed to a person who simply placed another face down in water but what intention should be imputed to a person who, after carrying out the rape and assaults which the Crown case suggested, placed the victim face down in that fashion and left her there immobilised as she must then have been. Of course, for all that is shown, the appellant may actually have held the deceased's mouth and nose under water for a time but it was not necessary to prove that this had occurred. The Crown had to prove no more than that he left her in the position described with consequences that would have been apparent to him. The Crown case thus was that there was a continuing episode of some duration and from it the jury would have been able to conclude what the appellant's intention was at the time he placed the deceased face down in the water. While there was ample circumstantial evidence entitling the jury to reach the verdict which they did on both counts there is no doubt that the question of intention would have been at the centre of their deliberations on the murder count.

Turning now from this examination of the broad thrust of the Crown case it is necessary to consider the evidence possibly relevant to intoxication and decide whether there is justification for the complaint which is made that the trial judge was in error in not directing the jury on this issue. The relevant evidence has been reviewed in the reasons of Davies J.A. and Derrington J.

Were it not for the statements which the appellant himself made to the investigating police officers it might be thought that there was nothing which to any degree indicated intoxication that is a state of being affected by alcohol. The other witnesses discounted intoxication but the statements of the appellant were introduced into evidence by the Crown and, unsworn and untested as they were, they became part of the material relevant to the jury's consideration of this issue: see Findlay Duncan (1981) 73 Cr. App. R. 359 and R v. Beck [1990] 1 Qd.R. 30. The appellant spoke of having consumed a total of seven stubbies of beer while in the hotel bar and subsequently, and he gave a description of his condition. He said that he found himself to be in a talkative state - "vociferous" is the word that he used. In consequence he said he decided that he should go out of the house and he then went to the TAB. In a further statement which was video recorded he described himself as not being "really blind" but as having vision which was "a little bit blurry and that".

The appellant did not give evidence at the trial and so the statements just referred remained unsworn assertions which could not be further investigated on cross-examination. Nevertheless, having been introduced they constituted material which was available to be taken into account by the jury and however unpersuasive they may have found them, especially because of the extent to which they appeared to conflict with some of the sworn evidence, they amounted to assertions by the appellant that he was at a relevant time affected by alcohol. Therefore, to use the word which appears in s. 28 of the Code, he may have been asserting that he was, to some extent, in a state of intoxication.

It is not for a trial judge to decide on the weight to be given to evidence which has been admitted and which bears on the question of guilt. That function is for the jury unless in particular circumstances it is so completely minimal in its effect as to amount to no evidence when the judge may be justified, as a matter of law, in directing the jury to disregard it: cf. R. v. Sutton [1986] 2 Qd.R 72, a case which dealt with the power to direct verdicts of "not guilty". While an appeal court has jurisdiction to decide that a conviction entered on a jury's verdict cannot be maintained but must be set aside because in the circumstances it is unsafe and unsatisfactory the trial judge has no parallel power: Doney v. The Queen (1990) 171 C.L.R. 207. Certainly a trial judge does not have power to withhold from the jury's consideration evidence the tendency of which is to weaken a conclusion that the accused person is guilty even though he does not himself find the evidence impressive. The judge must leave it to the jury with whatever comment upon it it is proper for him to add.

He is obliged to do the same with pieces of evidence which may

be conflicting.
Since in the present case the appellant's statements to the police were quite properly introduced by the Crown and may have amounted to a claim by the appellant of some degree of intoxication at a relevant time and particularly since he was requested to do so by counsel for the appellant, the trial judge should have referred to this evidence in his summing up and given the jury a direction in terms of s. 28 of the Code in respect of it. His failure to do so must, with respect, be regarded as an error. It left the jury without guidance on a relevant matter of law when such guidance was called for.

The conclusion just stated is not however the end of the matter. It does not mean that the conviction should be set aside. The circumstances of the present case make it proper to apply the proviso to s. 668E(1) of the Criminal Code. There are a number of reasons why this is so. The evidence in question consisted of an out of court statement which was not supported by the appellant's evidence given at the trial. It was essentially in conflict with other evidence which was called. Although defence counsel asked that a direction in terms of s. 28 should be given, in his own conduct of the case and especially in his cross-examination of witnesses he did not seem to press for a conclusion to be drawn that the appellant had been, to some extent, intoxicated. In his conduct of the case overall, defence counsel seemed rather to seek to present a picture of absence of intoxication, presumably to combat any impression that the appellant may have stooped to the crimes under the influence of drink. In his request to the judge in terms of s. 28 he sought, without tying himself over strongly to the outcome, a direction to the jury which might provide the possibility of some alternative means of escape for the appellant. Nevertheless the effect which must for present purposes be noticed is that the defence gave no emphasis to the possibility that the appellant may have been intoxicated. A further reason which supports the decision that the proviso should be applied is that the jury, on the whole of the evidence, were persuaded that the appellant was identified as the culprit who committed the two crimes that were charged and, as suggested earlier in these reasons, they could only have done so if they had been persuaded by the Crown's circumstantial case as to the actions which the appellant must have performed. Being so persuaded, the jury must have accepted that the appellant carried out a number of deliberate actions in sequence extending over a significant period of time. This was not a case of an ill considered action performed on the spur of the moment but constituted an episode all of a piece which involved planning, deliberation and perseverance. Viewed in this light, and considered in terms of the version of the facts which the jury must have accepted, it was not a case where a direction in terms of s. 28 referring to the appellant's claim of the extent to which he was affected by alcohol could have made any difference in the minds of reasonable members of the jury upon the conclusion which they were disposed to reach: cf. Wilde v. The Queen (1987-88) 164 C.L.R. 365 esp. at 371-2. It is not disputed that there was a strong circumstantial case if the DNA evidence was not excluded. The jury were entitled to hold that it was sufficient. Accordingly there was no miscarriage of justice involved in the failure to give the direction which was sought. For these reasons the proviso should be applied.

After argument on the appeal had been concluded and while decision was reserved, the Court was requested by counsel for the appellant to consider certain fresh evidence which had become available. To meet this request the case was relisted.

In the appellant's trial his twin brother, Ian Soper, had been called as a witness by the Crown. Ian Soper has recently been charged with an offence of rape committed upon a young woman in a caravan park on 7 February, 1993. No committal proceedings in his case have yet been held so that any consideration of the matter by us must be on a basis which will not cause embarrassment in any proceedings subsequently taken. However, it was not suggested that we should consider the additional evidence on the basis that Ian Soper would be admitting the charge.

Counsel for the appellant has been provided by the Crown with a copy of a statement made by the complainant dealing with the circumstances of the alleged rape on 7 February, 1993. She says that in the course of the rape, while her assailant was forcing her to submit to his will and brushing aside her pleas, he said, "Look, I have already been held up for this twice before, and both times I killed the girl. And I'll kill you right now.".

It should be stated that, for the purposes of this application, counsel for the Crown was prepared to accept that the complainant's assailant may be able to be identified as Ian Soper.
Counsel for the appellant asked us to consider his application on the basis that evidence of the statement set out above would be available from the complainant in any new trial ordered in the case of the appellant. Again, for the purposes of the present application, the Crown accepts this.
Certain of the scientific evidence given in the appellant's trial which pointed to the appellant as the offender pointed equally to his twin brother. The examination of pubic hairs detected on a vaginal swab enabled no distinction to be drawn between the two brothers as a possible source and the DNA profile of the blood sample of Ian Soper was again indistinguishable from that of the appellant.

In dealing with the application we are obliged to consider the effect of the fresh evidence in combination with the evidence given at the trial: see, for example, Mickleberg v. The Queen (1989) 167 C.L.R. 259 at 301. At the appellant's trial Ian Soper gave evidence and claimed that he had been at a specified address in Cairns and in the company of his friend, Patricia Morris, for all of the day and night of 26 October, 1991 which was when the deceased was raped and killed. In answer to questioning he also expressly denied that he had raped and murdered the deceased.

In his argument before us counsel for the appellant did not claim that the defence would be able to adduce evidence in disproof of the alibi established by Ian Soper's evidence that he was in the company of Patricia Morris at relevant times. The result nevertheless is that if the fresh evidence were available at a new trial of the appellant, his brother Ian Soper could be asked whether he did not say to the complainant on 7 February, 1993 the words quoted above to the effect that he had raped and killed a girl twice before and if he did not then admit it the complainant could be called during the defence case to prove the making of the statement as one which was prior and inconsistent within the meaning of s. 18 of the Evidence Act 1977. What might be argued as the capacity of the statement to refer to the rape and killing of the deceased and also the presumed intention of the defence to attribute responsibility to Ian Soper rather than the appellant would mean that the statement could, within s. 18 of the Act, be regarded as "relative to the subject-matter of the proceeding", that is the subject matter of the trial of the appellant on charges of rape and murder. The prior statement, if proved in that fashion, would then be available for the jury's consideration not just on the issue of credit but as evidence of the matters contained in it: s. 101 Evidence Act.

However, the statement alleged to have been made, even if accepted at face value, does not in fact identify the deceased as one of the two victims to which the statement refers. The jury would still be left with the Crown's strong circumstantial case against the appellant, containing, amongst other things, features pointing to the appellant as the offender rather than his brother: the footprint which, on the scientific evidence, could be identified as the appellant's not his brother's; the opportunity which the appellant had to commit the offence but which his brother, on the basis of his denial and alibi, did not; and the other circumstances which, to the extent that they were consistent with the involvement of either twin, were denied by evidence on oath by Ian Soper but not by the appellant.

Fresh evidence, if it is to result in a successful appeal, must have a quality which is described as "credible", "cogent", "relevant" and "plausible": Mickleberg (supra) at 301. The question which accordingly at this point falls for consideration is whether a miscarriage of justice is demonstrated because there is a "significant" possibility that a jury acting reasonably would acquit if the additional evidence were before it at trial. This is the way in which the test is expressed: see, for example, per Mason C.J. in Mickleberg (supra) at 273. In view of the particular features mentioned which point to the guilt of the appellant and away from a conclusion of guilt in the case of his brother, it should be decided that the new evidence does not demonstrate the necessary significant possibility.

Notwithstanding the availability of this new evidence, the

appeal should be dismissed.
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. Appeal No. 245 of 1992

Brisbane
Before The Chief Justice Mr Justice Davies Mr Justice Derrington

[The Queen v. Soper]

T H E Q U E E N

- v -

SHANE RUSSELL SOPER

(Appellant)

REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered 11/03/1993

The appellant was convicted in the Supreme Court at Cairns on 2 July 1992 of rape and murder and sentenced to imprisonment for life. He appealed against those convictions on a number of grounds, only two of which, in substance, were pursued when the matter was argued before us. They were ground 1(a) which contended that the learned trial judge erred in law or in the exercise of his discretion in admitting the evidence of Dr Roberts with respect to DNA analysis and the conclusion following therefrom; and grounds 3 and 4(h) which contended that his Honour should have directed the jury with respect to intoxication. The latter relates only to the conviction for murder.

The deceased, Threasa Cowen, was employed as a barmaid at the Hambledon Hotel, Edmonton. On the night of 26 October 1991 the appellant was at the hotel with his de facto wife, Jeanie Marie Ling. They left the hotel at about 10 p.m. and went to the appellant's parents' home. According to the licensee of the hotel, Mr McEnierny, Cowen left about 10.20 p.m. McEnierny's wife heard the sound of a car horn and looked out to see Cowen's car driving erratically. Ling said that after arriving at the appellant's parents' home she went to the toilet and then went to the bedroom which she shared with the appellant, where she assumed he would be, and discovered he was not there. Cowen's body was found the next day in a tidal drain at the edge of a cane field near Edmonton. According to the pathologist she had died from drowning. A telephone cord was found near the gutter at the hotel. The appellant's father had said that the cord was similar to one that he kept in the back of his utility. A footprint found at the location of Cowen's body was examined by an expert who found 28 points of identity with the appellant's right foot. A forensic expert carried out an examination of two pubic hairs found on a vaginal swab and concluded that there was no variation between those hairs and pubic hairs coming from the appellant.

The other substantial evidence connecting the appellant with the deceased was from Dr Roberts, a forensic scientist familiar with DNA profiling. He examined blood samples of the deceased and of the appellant and a vaginal swab of the deceased. He gave evidence that there was a match between the DNA profiling of that swab and of a blood sample taken from the deceased. He calculated that the frequency of that match occurring in the population would be 1 in 4,700. This evidence was admitted after a voir dire.

Two criticisms were made on appeal of the admissibility of this evidence. Both had been made on the voir dire by Dr Sudbury, an expert statistician, who had been called by the defence on the voir dire but not before the jury. The first was that the data base of people from which the DNA analysis and profiling was done was not from people chosen at random. It had, as its source, criminal suspects and victims and some laboratory staff in Victoria. However, this criticism did not seem to lead anywhere. Dr Sudbury said specifically that he had no reason to believe that the sample was biased and counsel for the appellant could not suggest any way in which this criticism helped this ground of appeal.

The second criticism was that the statistical probability of 1 in 4,700 was not valid because the samples for the data base ignored the possibility of subgroups within the population, such as aborigines. Dr Sudbury thought in consequence that the statistical probability of a match was 1 in 600.

Dr Sudbury was not called before the jury but Dr Roberts was cross-examined on both of these issues and it was conceded by counsel for the appellant that his Honour fairly left the second of these to the jury.

I should add that the appellant has a twin brother and that the DNA profiling did not exclude him. However, the evidence of the footprint did. The expert on that question excluded the possibility that the footprint at the location of Cowen's body could be that of the appellant's brother and that evidence was not contested on appeal.

In my view, Dr Roberts' evidence was correctly admitted and its weight was a matter for the jury. I would therefore reject the appellant's argument on this ground.

The argument on the second ground is in my view of greater concern, notwithstanding that, at least during the Crown case, the appellant's counsel appeared to be seeking to establish that, at the relevant time, the appellant was sober. To that end he elicited the following answers in cross-examination of Crown witnesses:

- from Wilson Forbes, a patron of the hotel on the night of 26

October 1991, of his observation of the appellant:

"The person who you saw, the male person, did he appear

relatively sober to you? -- Yes."

Forbes had seen the appellant between 7.00 and 7.30 p.m.
- from Ms. Ling:

"But on the night in question, on the night of 26 October, are you able to say whether the accused was affected by alcohol? -- No, he wasn't.

When you say, 'no, he wasn't', did he show any signs of being affected by alcohol at all or do you say that he looked completely sober? Was he a little bit affected or what's the situation? -- Completely sober."

She also denied noticing any slurring of his speech.

The only evidence from which a contrary inference could be drawn was from the confessional evidence of the appellant adduced by the Crown. In that, the appellant estimated that during the period between 3.30 and 10 p.m. he had about seven stubbies of heavy beer; and from his earlier description of the events of that period it could be inferred that he had had eight. He described his state of intoxication at about 10 p.m. as:

"I wasn't drunk. I wasn't really blind, just - I don't

know. My vision was a little bit blurry and that."

He had earlier described how he had become boisterous and loud.
The Crown conceded, correctly in my opinion, that this part of

the confession adduced by the Crown was evidence upon which the

jury were entitled to act.

The appellant's counsel asked the learned trial judge to direct the jury in accordance with the last paragraph of s. 28 of the Criminal Code. That paragraph provides:-

"When an intention to cause a specific result is an element of an offence, intoxication, whether complete or partial, and whether intentional or unintentional, may be regarded for the purpose of ascertaining whether such an intention in fact existed."

In effect, the defence asked the trial judge to direct the jury to consider whether they were left in any doubt that, because of intoxication, the appellant failed to intend to kill the deceased. His Honour refused to give such a direction though he directed the jury specifically with respect to intention: "Nothing short of actual intention to kill can justify his conviction for murder."

It is true that the evidence from which intoxication might be inferred was not strong. Moreover, as the Chief Justice has pointed out, it was not supported by sworn evidence from the appellant and was inconsistent with the only sworn evidence on this question. Nevertheless, in my opinion, this question was one which the jury ought to have considered and the trial judge should have directed them as requested.

The question remains whether we should apply the proviso to s. 668E(1) of the Criminal Code; is it possible to say "that the errors have not affected the result or that the jury would certainly have returned the same verdict if the errors had not occurred": Driscoll v. The Queen (1977) 137 C.L.R. 517 at 543 per Gibbs J., applied in R. v. Crowe [1985] 2 Qd.R. 389, 397; R. v. Fellowes, Jackson, McGeough and Buttigieg [1987] 2 Qd.R. 606, 620; R. v. Sitek [1988] 2 Qd.R. 284, 293. Cf. Anderson v. The Queen (1972) A.C. 100 at 107. That depends, in my opinion, on whether, if the direction on intoxication had been given, the jury would still certainly have been satisfied that the appellant intended to kill the deceased.

There are cases where an intention to kill the deceased would inevitably be inferred from other evidence. In R. v. Shaw [1981] 2 N.S.W.L.R. 648, for example, an intention to kill would be so inferred from the very nature of the lethal injuries which were inflicted - seven blows to the head from a tomahawk upon a man in bed. Here the cause of death was, as I have said, drowning and death appears to have occurred only because the deceased was left with her face down in a pool of water in the drain. Had she been left face up or in some other position in the drain it may well be that she would not have drowned. This gives rise in my view to the possibility that, notwithstanding the appellant's earlier intention to inflict harm on the deceased and the serious harm then inflicted, the position in which the appellant left her and which caused her death may not have occurred as a result of the necessary intent. An intention to kill by drowning in order to avoid apprehension is of a different kind and one requiring greater deliberation than one to abduct and rape, notwithstanding that the electrical cord which the appellant had earlier used to strangle the deceased had been carried by him from his parents' home to the hotel for that or some such purpose.

I would therefore allow the appeal only against the conviction for murder, set aside the verdict and order a new trial on that count. The conviction and sentence for rape would, of course, remain.

I would not have granted the request made after the hearing of the appeal to consider fresh evidence and I agree with the reasons of the Chief Justice for rejecting it.