R v Strachan - [2000] NSWCCA 260

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: Regina v Strachan [2000] NSWCCA 260

FILE NUMBER(S):
60609/99

HEARING DATE(S): 05/07/00

JUDGMENT DATE: 26/07/2000

PARTIES:
Regina v Jeannie STRACHAN

JUDGMENT OF: Mason P James J Whealy J

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 70066/98

LOWER COURT JUDICIAL OFFICER: Sperling J

COUNSEL:
W. G. Dawe QC - Crown
M. D. Farrar - Appellant

SOLICITORS:
S. E. O'Connor - DPP
Leo & Morrison

CATCHWORDS:

LEGISLATION CITED:
Criminal Appeal Act 1912

DECISION:

Extension of time in which to appeal is granted
Appeal against conviction is upheld
The conviction is set aside and, in lieu thereof, order that a verdict of acquittal be entered.

JUDGMENT:

IN THE COURT
OF CRIMINAL APPEAL
60609/99
MASON P
JAMES J
WHEALY J

WEDNESDAY 26 July 2000

REGINA V Jeannie STRACHAN
JUDGMENT

MASON P: I agree with Whealy J.
JAMES J: I agree with the judgment of Whealy J.
WHEALY J: The appellant was indicted on 10 June 1999 on the following charge: -
“That she on or about 6 November 1997 at Wollongong in the State of New South Wales did murder Glen Marjoram”.
The appellant pleaded not guilty. On 21 June 1999, however, she was found guilty of murder by a jury after trial. On 9 September 1999 the appellant was sentenced to a minimum term of penal servitude of ten years to commence on 8 September 1998 with an additional term of three years commencing on 8 September 2008.
The appellant has sought an extension of time in which to appeal or apply for leave to appeal and has filed a notice of appeal and an application for leave to appeal. The grounds of appeal or application are as follows:
“The verdict of the jury, in so far as it involved rejection of the plea of self defence raised by the appellant, is unreasonable and is not supported by the evidence.”
The principles of law governing the approach to be taken by the court when considering a ground of appeal such as the instant one are well established.
In M (1994) 181 CLR 487 at 493, Mason CJ, Deane, Dawson and Toohey JJ said that the test for an unsafe or unsatisfactory verdict was whether the court thought that, upon the whole of the evidence, it was “open to the jury” to be satisfied beyond reasonable doubt that the accused was guilty. The majority emphasised, however, it was not the function of the court to answer that question merely by examining the transcript of evidence and the exhibits. Their Honours said (p 493): -
“In answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations."
The majority judges (at 494) explained the application of the test as follows: -
“In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.”
In Jones v The Queen (1997) 191 CLR 439 in the joint judgment of Gaudron, McHugh and Gummow JJ at p 451, their Honours said: “however, the test formulated by the majority in M must now be accepted as the appropriate test for determining whether a verdict is unsafe or unsatisfactory” (earlier at 450 their Honours had noted that in M’s case the majority said that although the phrase “unsafe or unsatisfactory” does not appear in s 6 of the Criminal Appeal Act 1912, it allows a verdict to be set aside when the verdict is unreasonable or not supportable on the evidence). More recently in Fleming v The Queen (1998) 197 CLR 250 at 255-256 the court emphasised that although in the past the use of the phrase “unsafe or unsatisfactory” to describe alleged errors of law in criminal verdicts has been used, the phrase is likely to mislead and that attention should given to the precise terms in which s 6 is expressed.
The nature of the case
On the morning of Friday 7 November, the dead body of Glen Marjoram was found in the front yard of a house at 11 Park Street, Wollongong. The deceased had sustained a stab wound in his left flank and died some time between 9pm the previous evening and at about 2am the day the body was found. A post mortem of the deceased was later performed by Dr Cala. The wound passed through the top of the left eleventh rib and continued through the spleen, the top of the stomach, the diaphragm and the left lung (possibly) into the aorta. The depth of the wound was 180 millimetres or seven and a half inches. Dr Cala estimated that death would have occurred from the stab wound within a time frame of several minutes up to fifteen minutes. It was his evidence that a moderate amount of force had been required to cause the wound which was consistent with the use of a knife.
The circumstances which led to Mr Marjoram’s death came from a disagreement over a drug deal which, in turn, degenerated into a physical confrontation between the deceased and the appellant.
Robert Potter was a friend of the deceased. They were heroin users. In the early evening of 6 November, Potter went to see the deceased at an address in Park Street Wollongong, where the deceased was then living. Potter had been asked by another friend to get some heroin for him. He spoke to the deceased about obtaining heroin for this friend. The deceased and Mr Potter then went to a Caltex Service Station in Flinders Street and used Mr Potter’s bankcard to obtain $8.00 from his account. The deceased made a number of telephone calls. They then walked to the North Wollongong hotel where the deceased made another telephone call. The deceased used a diary or phone book to make this latter call.
Mr Potter and the deceased then returned to Park Street. Potter rode a pushbike while the deceased walked. On the way Potter ingested a Rohypnol tablet which was given to him by the deceased. They had $73.00 to purchase the heroin which was the money Mr Potter’s friend had given him and the $8.00 which Potter had obtained from his account. The deceased was given custody of the $73.00 in order to purchase the heroin.
As Potter and the deceased were walking up Park Street, a car came around the corner and stopped outside the front of the deceased’s flat. According to Potter, the deceased started talking to the driver of this car and asked for two caps of heroin in exchange for the money. The driver refused because $73.00 was not enough to purchase two caps of heroin. The driver and the deceased haggled over the price without success. Potter went up to the deceased and took his money from him. Potter then bought one cap of heroin from the driver of the car and started riding off on his bike. The deceased was still at the window of the car arguing and he hit the driver through the window of the car. Potter says he kept on saying “come on Glen, let’s go” but the deceased continued to squabble with the person in the car.
Potter was about five or six metres away from the car at this stage. He wanted to leave and was urging the deceased to come with him. At p 132 of the transcript, Potter said, “at one point Glen hit the person through the window of the car, then I think Glen started to walk off, and then the person in the car either turned his ignition off or did whatever and hopped out of their car, or turned their ignition off and said “Right”. Glen said “If you get out of the car I’ll shiv you”. Potter then said, that at that stage, the person in the car hopped out of the car and Glen was around the boot area of the car and the person who was in the car walked around to the boot area and they started to have what he described as “an interaction”. He said “That it looked like they were having “a bit of a fight”. There was a scuffle where they faced up to one another. “It seemed like they were both throwing punches, or whatever”. He said that the person who had left the car made a lunge or a swing consistent with a stabbing motion. He did not see a knife but described a movement from the right hand of the person who had left the car move the hand “down to up”.
Potter kept moving up the street towards Edwards Street, Wollongong and the last time he looked back he saw the person who had left the car still in the street but he could not see the deceased anywhere. By this time, he says the person from the car was standing beside the driver’s side of the car.
Potter had also given evidence that there had been a dog in the car, a small dog. He said it may have been a poodle (T 130). He later stated that he did not see the dog outside the car at any stage.
Susanne Mulqueeny lived at Unit 4, 6-10 Park Street, Wollongong in November 1997. At about 8.25pm on Thursday 6 November she went out to collect her son. She returned home with her son driving back into Park Street at approximately 8.45 to 8.50pm. As she approached the block of units she noticed a car parked out the front. She saw a pushbike at the front of the car. A young man was standing at the window talking to the driver. When Ms Mulqueeny opened her window to access the security system for her units she saw the young man speaking to the driver, they were talking to one another and arguing. She could not make out exactly what they said until she said the words “or I’ll shoot you”. She said she heard that every clearly. These words were spoken by the young man outside the car door. (It appeared to be common knowledge at the trial she may have heard the deceased use the words “I’ll shiv you”). She continued on into her driveway and car park and did not have anything further to do with what was happening in the street.

The Appellant’s first interview

On 19 November 1997 Detective Butler, together with Detective Ainsworth, interviewed the appellant. At A 35, she told the interviewing police what had happened on Thursday 6 November. The appellant said:
“Got a phone call to go out and see someone at, what, what street, you said, whatever street it was. When I pulled up, this bloke started carryin’ on like an idiot, the side of the car. Wanted to score drugs. Wanted em for nuthin and I told ‘im I couldn’t do it, and he had a little mate there, with ‘im. And I dunno, he just lost the plot and started punchin’ me through the car door. When I opened the car door, dunno what I was tryin’ to do, push ‘im away, whatever, me dog jumped out and took off up the street and he went off up the street and when I got out of the car he started floggin’ me again and his little mate was at the side of the road somewhere up the road screamin’ for ‘im to stop floggin’ me. And, he just stopped floggin’ me when, told me to piss off before he flogged me again. And I just grabbed me dog and got in the car and drove away.”
At A 79 she described herself as being “king hit” through the window. At A 88 she said, she opened the door, “I dunno’ what I opened the door for, to push him away or whatever, and he turned round, he was walking back up the street with his little mate and when I opened the door the dog took off up the street and I went to go after her and he started layin’ into me again”.
In the interview, the appellant stated that she had received a “fat lip”, scratches on her face and nose, and lumps on her head, as a result of being assaulted by the deceased (A 125-126). She did not seek medical treatment nor did anyone witness her injuries (Q & A 127-128).
The appellant denied having a knife in the car and said she did not carry a knife. She denied stabbing the deceased (A143, 147 and 266). On 8 June 1998, the appellant was again questioned by the police. She exercised her right to silence but added “No, just I didn’t do it”.
The appellant’s case at the trial
The appellant gave sworn evidence in which she agreed that she had in fact stabbed the deceased but she maintained that she did so to protect herself.
She stated that in November 1997 she was a heroin user and that she had an arrangement with certain other persons to supply small quantities of heroin on their behalf. They, in return supplied her with heroin for her own use.
She received a telephone call from the deceased on the night of 6 November 1997. He arranged to meet her in Park Street to buy drugs from her. She drove to Park Street, and parked the car where they had arranged to meet. The deceased and his friend came across the road towards the car. The deceased wanted to buy one cap and get one cap on credit. The appellant told him that she could not do this. The deceased began to argue. Mr Potter asked the deceased for the money and the appellant sold him one cap. Mr Potter moved away. The deceased returned to the window and became angry. He was shouting and then punched her through the window “a couple of times”. He hit her in the side of her face with his fist.
The appellant opened the car door to push the deceased away. Her pet dog then escaped from the car through the open door and ran up the street or across the road. She had a knife in the car’s console. It was a hunting knife with a black handle. Its blade was about seven or eight inches long. It was sharp. She had it there in case somebody tried to take drugs off her. She got out of the car with the knife in her hand, by this time the deceased was around the back of car near the boot. She said she got out of the car because she did not want to leave her dog. She said she took the knife with her because she wanted to scare the deceased off.
She walked around towards the boot of the car. The deceased grabbed her and started hitting her again. At one stage she was on her knees after being hit by the deceased. She grabbed his jumper in her left hand while he was still hitting her and as she got up she swung blindly with the knife. She said she did this because she thought the deceased was really going to hurt her.
The appellant denied that she intended to kill the deceased or cause him serious harm. She swung the knife to make him leave her alone. She swung at him only once. She knew that she had stabbed him but did not know where.
She demonstrated to the jury the action she took with the swinging motion she made with the knife in her hand. She said that she intended by this action to make him leave her alone. She denied she intended to kill him or cause him serious harm. The deceased said to her “Now fuck off before I do it again”. He turned around and walked away. She says that was the last she saw of him. She called out to her dog and he returned to her from across the road. She put the dog back in the car and drove away to the south.
The appellant agreed that she lied to the police in the interview of 19 November in that she did not tell the officers about the stabbing and denied that she had a knife. She said she did this because she was scared.

Submissions on Appeal

The appellant’s primary submission is that, notwithstanding the advantage the jury had in seeing Potter, he was so lacking in credibility, so inherently unreliable, so obviously wrong in certain respects that this Court itself should entertain a reasonable doubt in relation to the issue of self defence. Importantly it is submitted the few objective physical facts available on the evidence do not corroborate his version of events but suggest instead the contrary. Additionally, Potter lied when first interviewed by the police and, it was only later that when he perceived his own position to be under threat, he gave a fuller account of what had happened. It is said that perhaps he embellished his version to make sure that he was not in trouble with the police.
On the other hand, the Crown’s submission points to the fact that the appellant also lied to the police both during her first and second interview. In her first interview, she had left the scene with the two men walking away from the car - the deceased being unattacked and still alive. In her second interview, she exercised her right to silence but said “I didn’t do it”.
The essence of the Crown submission was that she gave evidence and was cross-examined in front of the jury. The jury, as judges of fact, were entitled to reject self defence and entitled to reach their verdict of murder.
A closer examination of Potter’s evidence - Does a doubt arise?
When Potter was first interviewed by the police on 8 November 1997, his account of events omitted any reference to his having seen the appellant getting out of the vehicle at all. At the trial, Potter explained why he had given police a fuller account - which account was largely reflected in the evidence he gave at the trial - when he was interviewed by the police again on 10 November 1997. His enlarged version of events came about, as he explained, after he had been told on that occasion by one of the investigating detectives that “its either you or someone else … going to be charged with the murder”.
Potter gave to police a graphic and detailed description of the alleged altercation (including physical demonstrations of what he had seen) when we was interviewed by them on 10 November 1997. Extracts from the ERISP video dealing with description and comprising questions 108 to 112 and the answers thereto as well as questions 140 to 142 and the answers thereto were tendered by consent and became exhibit “S” early in the trial. As well, a transcript of exhibit “S” was also tendered by consent and became exhibit “T” in the trial.
In describing (and physically demonstrating) to police in exhibit “T”, the actions which he allegedly saw the appellant use in her “interaction” with the deceased, Potter graphically detailed how the appellant used both “overhanded” and “underhanded” motions. He also told police that he saw the appellant “lunge” at the deceased two or three times. In demonstrating these movements, the interrogating police indicated that Potter was showing both “overhand” and “underhand” lunges. Potter told the police that from the action of the person he saw “it seemed like they were holding something”, but that he did not see anything in the person’s hand and did not know whether the person’s movements were punches or lunges. In response to the question whether he had actually seen the person “lunge” as he had demonstrated, Potter said “I’m pretty sure I did”.
Evidence was led from Potter to the effect that when he saw “the scuffle” between the deceased and the appellant, he only saw them in a standing position and that they were always facing one another. When asked how close to one another he thought they were he gave the following answer “Close as somebody getting if you want to hit them”.
The appellant gave evidence that she stabbed the deceased once only and that was by way of delivering a round arm blow with the knife. She was about 168cms in height whereas the deceased was 193cms. She was very slightly built. Her evidence was that she was on her knees after being hit by the deceased (“he was floggin’ me”). She grabbed his jumper in her left hand while he was still hitting her and as she got up she swung blindly with the knife.

It is very significant, in my view, that the evidence of the appellant is entirely consistent with the evidence of the forensic pathologist, Dr Cala. He said at p 59 (in response to a question that was asked whether it was likely the wound was inflicted while the assailant was standing behind the deceased):
“A. I think that is unlikely because this wound entry was in the left side going towards the back and it, as I have indicated, it went upwards and slightly backwards. So it would have been difficult to inflict from behind. I favour that it was inflicted from in front, and that it was inflicted most likely by a right handed person … but in a - shall I say a roundhouse fashion, in other words, with a swinging arc of an arm that goes around the body and then enters just beyond the flank going towards the back of the person”.
It is of equal significance, perhaps more so, that the description which Potter gave police of the altercation between the appellant and the deceased, as well as the evidence he gave at the trial on this matter, is not only at odds with the appellant’s evidence of having administered only one blow with the knife and the manner in which she said she administered this blow but, more importantly, it is antithetical to Dr Cala’s opinion as to the probable manner in which the fatal stab wound was inflicted.
If the appellant and the deceased were indeed at such close quarters and if indeed, armed with a long bladed hunting knife, the appellant had made the “overhand” and “underhand” lunges/punches described by Potter in exhibit “T”, it seems inconceivable that the deceased would not have suffered telling defensive knife injuries to his hands and/or arms as well as quite probable knife injuries to his upper torso region. Further, it seems quite significant that there was no damage to any of his clothing caused by the “lunging knife”. The forensic evidence, however, was that the only stab wound inflicted upon the deceased was a single wound that caused his death. The only other injuries that Dr Cala observed in relation to the deceased was a minor flesh graze on his left fifth knuckle and a small graze on his left ring finger which appeared to be an old injury which had started to heal. The “defect” in each of his upper garments was consistent with the one blow which had led to his death.
There were other areas in which Potter’s evidence was unreliable or inconsistent. These included his evidence as to the position of the vehicle driven by the appellant in Park Street and his evidence as to whether its engine was running and lights on or not. His evidence in these respects was contradicted by Mrs Mulqueeny. It is said that this matter reflects poorly on Potter’s power of observation particularly in a case where the Crown places great store on the reliability of those very powers. I agree with this submission.
Another critical aspect of Potter’s evidence (and an integral aspect of the Crown case against the appellant) relates to his description of her actions after she had been punched in the head by the deceased through the open driver’s side window. His evidence was that she was heard by him to have said “Right”. The Crown placed great store on this aspect of Potter’s evidence followed as it was by his description of the appellant immediately opening the car door and leaving the vehicle with the knife in her hand. It was the Crown case that this demonstrated an intention on the part of the appellant to take some form of retaliatory action against the deceased for having assaulted her through the window.
An examination of the transcript however, shows that Potter was not firm that he had actually heard the appellant say “Right” when he was cross-examined. It was put to him that this was not the word he had heard. His reply was (T 169 - line 46):
“A. Well they could have said something else, but they said something.”
In the absence of this alleged angry response on the part of the appellant (which was not heard at all by Mrs Mulqueeny) there was nothing other than the circumstances of the departure from the car itself which could have pointed to the alleged retaliatory intent.
The reason for the appellant’s decision to get out of her vehicle was clearly critical on the issue of self defence. Her evidence (as I have said earlier) is that after she had been punched by the deceased more than once, she tried to push open the car door to push the deceased away. She was able to push the door half open when her pet dog suddenly and unexpectedly ran across her lap and jumped out of the car. She saw that the dog had headed towards the rear of the car or across the road. She feared that unless she retrieved the dog immediately it might become lost. It was in these circumstances she got out of her vehicle to look for the dog. In so doing she armed herself with the hunting knife which she kept in the console for protection. She did so because the deceased was still nearby and she just wanted to scare him (T 228 - lines 46-47). She said that when she got out of the car she walked to the back of it. She said that the deceased was there. She said that he grabbed her and resumed punching her in the head. She explained that she stabbed him with the knife to make him leave her alone and that in so doing she intended to do no more than hurt him in order to achieve this objective. She denied that she intended to kill him or cause him serious harm. The appellant gave further evidence that she did not consider driving away after she was punched and after her dog had jumped out of the car because she did not want to leave her dog. She also gave evidence that once she had gone to the rear of the car to look for her dog she had no way of retreating in order to get back into the car because the deceased had taken hold of her and then started to punch her. She denied uttering “Right” after she was punched by the deceased whilst she was sitting in her vehicle. She said that before she got out of the vehicle she did not hear the deceased call out “If you get out of the car I’ll shiv you”. The Crown has pointed to the fact that Mrs Mulqueeny appears to corroborate this one aspect of Potter’s version of the conversation near the car door. Even so, in my opinion, this corroboration (such as it is) is of little consequence in relation to the overall Crown case. Counsel for appellant put to this Court forcibly that the appellant had been struck possibly several times by an angry and drug affected man and struck in the head. It would not be surprising, he urged, that she did not hear the words or that they simply did not register.
In my opinion, the critical point on this aspect of the respective Crown and defence cases is that if one discounts Potter’s version of the use of the word “Right”, the matter which remains for consideration is why it was it the appellant opened the car door and then decided to get out of the vehicle. As to the first, she says she wanted to push the deceased away from the car. The Crown says that this is inherently incredible as it would have been possible for her to simply wind up the window and move the car on. As to the second, once the dog had left the car, why did not the appellant simply drive forward a short distance and then seek to call the dog back to the car?
Having read the transcript carefully, I have come to the view that there is nothing inherently incredible in the appellant’s version of what she did. Her action in opening the car door to push the deceased away in the heat of moment, was understandable if foolish. Her actions in leaving the car were well explained by her affections for her pet dog and the fear she had that it might become lost. The fact that she took the knife with her in a situation where she had just been beaten by the deceased was also explicable in terms of self protection.
It is in this context that one also notes the significant difference in size between the appellant and the deceased. As his Honour the learned trial judge said to the jury in his summing up at pp 59-60: -
“Now it is a matter for you, but you might think there is a role for commonsense in resolving that conflict of evidence. Is it likely that a woman of her height and build would have taken on a six foot four, angry and violent man who appeared she says, to be under the influence of some kind of drug?”
In my opinion, it is inherently improbable that a woman of the appellant’s statute and build would have been likely to have angrily taken on the deceased in the circumstances of the situation which occurred near the car on 6 November 1997. If, as the Crown allege she was intent on doing serious harm to the deceased when she left the vehicle, why was it that she did not follow him to finish him off after the one blow had been struck? According to her evidence he was still threatening her as he walked away from the vehicle after he had received the blow which ultimately led to his death.
Summary
In my opinion, this appeal is in some respects, not an easy one to resolve. An examination of the transcript and exhibits certainly show enough discrepancies, inadequacies and lack of probative force in the evidence of Mr Potter to lead me to conclude that I have a doubt in relation to the issue of self defence. On the other hand, the trial was a case in which not only was Potter a flawed witness but so was the appellant herself in certain respects. She had, after all, lied to the police on two occasions.
It is in this latter respect that in my opinion, the case approaches close to the borderline. Significant consideration must be given to the fact that the jury had the benefit of having seen and heard both the appellant and Potter at trial. It is necessary that this Court must pay full regard to this consideration and to the fact that the jury is the body entrusted with the primary responsibility of determining guilt or innocence.
Making full allowance for those considerations, however, I am nevertheless, of the view that, for the reasons more fully set out in this decision, there is a significant possibility that an innocent person has been convicted in this matter.
I hold this view having regard to the unsatisfactory nature of the evidence of Potter, the objective facts which support the appellant’s version but do not support his, and the inherent improbability of the critical features of the version put to the jury by Potter. On the other hand, the appellant’s version appears to be credible and is well supported by the physical evidence.
In my opinion the appeal should be allowed and an acquittal entered.
I would propose the following orders: -
1.        Extension of time in which to appeal is granted.
2.        Appeal against conviction is upheld.
3.        The conviction is set aside and, in lieu thereof, order that a verdict of
acquittal be entered.

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LAST UPDATED: 07/08/2000