R v Stylianou
[2005] VSCA 123
•19 May 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 35 of 2005
| THE QUEEN |
| v. |
| CHRISTOPHER STYLIANOU |
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JUDGES: | WARREN, C.J., WINNEKE, P. and BUCHANAN, J.A. | |
WHERE HELD: | MILDURA | |
DATE OF HEARING: | 20 April 2005 | |
DATE OF JUDGMENT: | 19 May 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 123 | |
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Criminal law – Appeal – Murder of de facto – Non-guilty plea – Whether Faure warning required – Consciousness of guilt – Provocation – Self-defence – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. P.A. Coghlan, Q.C., (D.P.P.) with Mr. D. Brown | Mr. S. Carisbrooke, |
| For the Appellant | Mr. P. Tehan, Q.C. with Ms. K. Judd | Victoria Legal Aid |
WARREN, C.J.:
On 9 December 2004 the applicant was convicted in the Supreme Court of Victoria sitting at Mildura of the murder of Narelle Carr on 9 December 2004. The applicant pleaded not guilty. The defence of the applicant was that the deceased was killed by someone other than him. Upon conviction the applicant was sentenced to a term of 19 years’ imprisonment with a non-parole period fixed at 15 years.
The applicant seeks leave to appeal the conviction and the sentence.
The deceased died of strangulation on 11 January 2004. She was found in bed in a bedroom of her home at Unit 3, 86 Olive Avenue, Mildura.
A post mortem examination was conducted of the deceased by Dr Malcolm John Dodd, forensic pathologist. He observed petechial haemorrhages on the conjunctival membranes of the eye consistent with manual strangulation and asphyxia; patch bruising around the lower part of the right eye, the periorbital area and some bruising on the left eye and periorbital areas; abrasions on the left side of the face and cheek area; and a large area of abrasion consisting of crescent shapes around the cheek and beneath the chin, about 50mm by 15mm in size. Dr Dodd described the latter area as one of abrasion due most likely to manual gripping of the neck or other force to the neck. There were other areas of abrasion over the right side of the chin and the jaw. Dr Dodd noted two areas of bruising on the thigh about 70mm by 40mm in size. Bruising was also observed on the right side of the deceased between the hip and the knee consistent with impact from a club or baton. Dr Dodd further noted some other aged bruising. He concluded that the cause of death was manual neck compression in a woman who sustained multiple areas of blunt force trauma. Dr Dodd gave evidence at the trial of these matters. Dr Dodd also showed photographs at the trial of the upper body and back legs of the deceased taken at the scene of her death. He showed that the photographs revealed lividity indicating that the body was lying in the position shown at the scene for some time.
Toxicology tests were conducted on samples taken from the deceased and detected no presence of alcohol. The tests revealed levels of Fluoxetine (Prozac) consistent with normal therapeutic levels; levels of methyl-amphetamine, consistent with regular or chronic use; and a concentration consistent with the use of cannabis L within one to two hours prior to death.
Forensic scientific evidence was given at the trial by Louise Patrice Brown. She conducted DNA tests of various items, including a white tee-shirt bearing bloodstains that was with the applicant up until shortly before his arrest. The tests of Brown excluded the DNA of any person other than the applicant and the deceased. She also examined a baseball ball bat that the applicant had with him on the night of 11 January 2004. Brown observed blood stains on the bat. She traced at least three contributors to biological material found on the bat. She was unable to exclude the applicant as a contributor to that material. DNA was found on the bat but it could not be profiled.
The applicant was 36 at the time of the offence. He and the deceased lived together at the Olive Avenue unit. They had lived in a de facto relationship since about 1995. The deceased had a daughter, aged eight at the time of her death. The applicant was not the father of the child. The deceased appeared to have the child to stay with her about once a fortnight. The arrangement seemed to be that the applicant would stay at the Olive Avenue unit when the child was not there. At those times the applicant would go to stay elsewhere, with his sister or mother or at his own place in Mildura. The applicant lived at the Olive Avenue unit on that basis for about nine months before the deceased was killed.
The relationship of the applicant and the deceased was highly volatile. At trial, evidence was led as to the observations of the relationship shortly before Christmas 2003, the deceased having been killed on 11 January 2004.
The evidence commenced with Mehmet Erbas who knew both the applicant and the deceased. He received a phone call from the deceased three or four days before Christmas day, December 2003, when she asked him to pick her up and take her to a supermarket. He agreed. Erbas went to the Olive Avenue unit and knocked on the door. He heard some yelling and arguing from inside. He told the applicant and the deceased that he would wait in his car which he did. He then saw the applicant and the deceased come out of the unit arguing. The deceased then went back inside the unit and the applicant waited with Erbas at the car. After a minute or so the applicant went back inside the unit. After a few minutes, Erbas went back to the unit and went inside. He heard the sounds of banging and thumping coming from the bedroom. He went to the bedroom and saw the deceased and the applicant fighting on the floor. The applicant was on top of the deceased with his hands upon her. Erbas pulled the applicant off and saw that the deceased was “pretty badly beaten up” and having difficulty breathing. He later left and that was the end of the incident as far as he knew. In his evidence, Erbas accepted that the relationship between the applicant and the deceased changed from periods of violence to affectionate behaviour. He accepted the suggestion that they “each gave as good as they got”.
Evidence was also given about the relationship between the applicant and the deceased by Elena Stylianou, the mother of the applicant. She described an episode a few days before Christmas 2003 when she was visiting the couple at the Olive Avenue unit and the child of the deceased, Letitia, was present. An argument erupted between the applicant and the deceased over the availability of sugar for some tea. Elena Stylianou said during the argument she saw that the deceased had a bread knife in her hand held upright standing close to the applicant. The deceased spoke to Elena Stylianou, with the knife in hand, and said “ Christopher [the applicant ] is this far away from dying”. Elena Stylianou pleaded with the deceased to put the knife down and she did. The applicant left to buy some sugar and that was the end of the incident.
Evidence was given further about the behaviour of the applicant and the deceased by a neighbour, Paul Byrne, who had moved into a house opposite the Olive Avenue property in early December 2003. He never actually met the applicant or the deceased but he said he regularly heard arguments and the raising of voices and sometimes the sound of glass breaking in the Olive Avenue property. Byrne said that a 48 hour period would not pass without an argument or the sound of raised voices occurring. A lot of the arguments occurred at night. Byrne described an occasion in December 2003 when he and his wife returned home about midnight or 1.00am from a party. He saw an argument or discussion between some persons across the road. Another time, Byrne observed the deceased pushing the applicant. That was the extent of the evidence of Byrne as to his observations prior to 11 January 2004.
There was additional evidence from another neighbour, Raymond Leonard Mason Cole Cooper-Mills, who moved into Unit 1, 86 Olive Avenue and was staying with friends. He came to the fore in other respects at the trial but, in the event, gave evidence as to his observations of arguments between the applicant and the deceased prior to the day the deceased was killed. Cooper-Mills said that on 3 January 2004 he heard and then witnessed a loud argument between the applicant and the deceased outside the front of Unit 3, 86 Olive Avenue. On this occasion, Cooper-Mills saw the applicant kick the deceased in the stomach and walk off. The deceased shouted and verbally abused the applicant. Cooper-Mills witnessed another loud argument between the couple on 7 January 2004. On that occasion, the applicant came out of Unit 3 howling and with blood pouring from his hand. An ambulance came to attend the applicant who later said that the deceased cut him with a knife. The wound was sutured at the Mildura hospital. It appeared that the applicant was treated for the wound at the hospital twice, on 6 and 10 January 2004.
Early in the afternoon of 11 January 2004, Cooper-Mills was outside and heard loud voices from Unit 3, including the deceased screaming. He called out to those making the noise and things went quiet until the evening at about 6.00pm. At about 6.00pm Cooper-Mills observed that the applicant was out the front of Unit 3 and spoke to him. Cooper-Mills said that the applicant walked up to him and said: “I’ve just hit my missus over the head with a baseball bat and I’ve stuffed her aboriginal friend in the cupboard”. Cooper-Mills said the applicant repeated the statement. He gave the applicant a cigarette and then the applicant went back inside Unit 3. Next, Cooper-Mills saw the applicant take his bicycle and ride down the street with something wrapped in a red coat or a red coat under his arm. Cooper-Mills said that he then went inside Unit 3 and called out to the deceased. There was no answer. Then he thought he heard her. He went into the bedroom and saw the deceased lying on the bed. He called out to her again but there was no response. There was a blanket or doona over the deceased. When she did not answer him he tried to render mouth to mouth resuscitation. Cooper-Mills noted dark bruising on the chest of the deceased. Cooper-Mills said he sat down on the bed but did not touch anything. He then heard the applicant yelling and screaming outside Unit 3 and saw a police divisional van pull up. The applicant and the deceased had a dog that was inside the unit at the time. Cooper-Mills exited the unit through the back door, jumped the fence and went around to the front of the unit. He warned the police about the dog. He did not tell the police that he had been inside the unit or what he had seen. When interviewed by the police Cooper-Mills gave a false name of “David Coffey” and said that he was from Epping and visiting a friend. Much later in time, after the committal, and after receiving legal advice, Cooper-Mills told the police of his actions and observations. His explanation for his falsehood was that he thought the police wished to speak to him about an unrelated matter and that if the police discovered his entry into the unit they would probably think that he had murdered the deceased.
There was evidence by some other persons about relations between the applicant and the deceased that was not focussed upon for the purposes of the appeal. It is unnecessary to revisit such evidence save to observe that the context of the relationship between the applicant and the deceased was one that was very volatile.
On the night of 10 January and early the next morning of 11 January 2004 Byrne observed a party “in full swing” across the road at Unit 3. He said there were a lot of noises coming from the unit right through the day of 11 January 2004 up until the evening. Byrne and his wife, Sharon Galligan, were sitting in their garden at 6.00pm. A large argument occurred in the street between the deceased and a male whom Byrne did not recognise. Byrne saw the pair enter the Olive Avenue unit. About 10 or 15 minutes later he heard another argument from the proximity of the unit opposite. It lasted about five to ten minutes and stopped about 6.25pm or 6.30pm. Galligan gave similar evidence to Byrne as to the regular arguments and shouting between the applicant and the deceased and the events of 11 January 2004. Galligan was, as I observe, also in the garden on the Sunday evening. She said that at about 6.15pm she heard a male and a female voice and that the female voice was piercing. Another neighbour, Bronwyn Mary McAllister, was at a house nearby the Olive Avenue unit and outside on the evening of 11 January. She heard raised voices and a male voice yelling out very loudly: “you treat me like a fucking dog”. A little while later McAllister heard a sound like something being slammed.
At 6.50pm, David Jones, an ambulance service operator, received a phone call from the applicant. He requested an ambulance to attend the Olive Avenue property. The applicant said: “My missus has just gone fucking berko”. The conversation continued. Whilst the applicant was speaking to the operator, Jones, the conversation was interrupted. It transpired that the applicant was observed by the police riding a bicycle along a footpath near the Olive Avenue property without wearing a helmet and whilst speaking on a mobile telephone. I will return to the exchange with the police shortly. In any event, after speaking to the police the applicant continued his mobile telephone conversation with the ambulance operator, Jones. The applicant said a number of things in the conversation, including: “…I’d had a fight with my missus and she’s probably just you know, bit cut up and shit…she’s gone to bed now. I grabbed her round the throat, that was about it…she just hit me with a baseball bat and a few other things you know, and it just got out of hand a little bit”. The applicant also said that the deceased stuck a knife into him but that she only pricked him and he was alright. After further discussion with the operator the applicant said: “…she’ll be pretty stressed out and cold too so she’s asleep in bed”. There was another exchange and then the applicant said: “…you know I grabbed her around the throat, she’s probably having a hard time to breathe too you know”.
It transpired that at about 6.50pm two police officers, Senior Constable Lisa Roddi and Constable Ross Huxtable were on divisional duties in the area. They saw the applicant in Eighth Street, Mildura. There was aerial photographic evidence at the trial that disclosed that the property at Unit 3 Olive Avenue was approximately two and a half blocks away from a Liquorland store that partly abutted Eighth Street. The distance was very close. The police stopped the applicant in Eighth Street for the reasons already stated. The applicant dismounted and proceeded along Eighth Street but continued to speak on the mobile telephone. It was apparent at the trial that at this time the applicant was speaking on the telephone to the ambulance operator, Jones, as previously described. When stopped by the police (and which exchange was picked up by the recording of the conversation with the operator Jones) the applicant did not mention to the police anything about the deceased. The police did not observe any injury to the applicant. After the police moved on, they next observed the applicant, about two minutes later, at the Liquorland store. Next, the same police officers received a communication based direction to attend Unit 3, 86 Olive Avenue, which they did.
When those police officers arrived at Unit 3, another police vehicle was already in attendance. That was at approximately 6.56pm. The police officer, Roddi, saw the applicant come out of Unit 3, speaking on a mobile telephone with a can in his hand. The police officer, Huxtable, heard the applicant say: “Help, help, she’s not breathing”. Other police officers in attendance heard this as well. The police encountered difficulty gaining access to Unit 3 because of the presence of the applicant and the deceased’s dog. The dog was overcome and when the police entered the unit they found the deceased on the bed. An ambulance arrived at about 7.05pm. The ambulance officers’ entry was delayed due to the problems with the dog in the unit. The ambulance officers entered the unit at approximately 7.10pm and saw the deceased lying on the bed, partly covered by a doona and wearing only black underpants. They observed at that time various marks on the body and signs of post mortem lividity and rigor mortis. They found the deceased was dead as at about 7.10pm.
At some point, whilst all these events were occurring, the applicant was observed by the police to ride away from the scene on a bicycle.
Meanwhile, at 7.01pm the applicant had again telephoned the emergency operator, Jones, on a mobile telephone. It was apparent that the applicant was moving about whilst on the telephone. In the conversation that was recorded, the applicant asked for the ambulance to come quickly and said a number of things including: “…well she’s gone, I had a shower and everything, she’s gone to bed and whatever. There’s cops. Oh no…I was stabbed.” The police were then recorded in the conversation asking the applicant where he was stabbed, he said: “In my hand, don’t worry, I’m alright”. The applicant continued the conversation with Jones including saying: “she’s stopped breathing, shit….she’s not breathing”. The recording picked up difficulties the police had with the dog and then the applicant continued with Jones saying: “I had a blue with my missus”. The conversation continued about various things and then the applicant said he had taken off and was down at the river. The applicant at one point said to Jones: “man, she was cold…she was cold when I come back, man”. A little later he said: “[there] was still no pulse, no nothing before they [the ambulance officers] got there, you understand? She was cold”. The applicant then described that he had left the deceased and taken two bags of clothes. He said: “…I’ve come back and she’s out, you know…”. Later in the conversation he said : “Man, I came back and she was stiff…”.
The neighbour across the street, Byrne, saw the applicant leave the unit and talking on a mobile telephone between about 6.50pm and 7.00pm and speak to the police who had just arrived. He heard the applicant say: “She’s not breathing, she’s not breathing”. Byrne saw that person ride away on a bicycle. Similar evidence was given by Galligan.
The next aspect or phase of events related to the activities of the applicant after he left the scene. John Michael Jackson was associated with a community group called Living Waters Community Care. He had met the applicant about two weeks before 11 January 2004. Jackson had walked home from the Living Waters Centre on Sunday evening at about 7.15pm. He arrived home about 15 minutes later. He was with a friend, Robert Alexander Goudie. The applicant was waiting at Jackson’s house; his bicycle was across the front door. The applicant was wearing tracksuit pants and a buttoned shirt. On Jackson’s version of events, the three men went inside and the applicant said that someone was trying to kill him. Goudie was present at Jackson’s house for only part of the time while the applicant was present. Goudie said that when he and Jackson arrived at the latter’s house the applicant was there waiting in an agitated state. When they went inside the house the applicant said, “I don’t know what to do because she wouldn’t shut up, she wouldn’t shut up. She was breathing when I left her”. Goudie was asked by the applicant to go and buy a phone card for the applicant’s mobile telephone. He complied and was away for about 20 minutes. Goudie said the applicant made several phone calls while he was at Jackson’s house. Goudie said the applicant did not say in his presence that he killed the deceased but said, “Like, she’s dead, she’s not breathing”. The applicant told Goudie that at one point there was a pulse and that he did not kill the deceased. Goudie recalled that at another point the applicant said, “She was alive. She was alive”. Goudie could not recall precisely the time that the applicant left Jackson’s house and he did not see him again after he left.
Jackson said that while the applicant was with him he said that “he and his missus had had a fight … he’d left and gone down to the bottle shop … and he’d found her strangled”. The applicant told Jackson he found the deceased on the floor. An ambulance had been called and the applicant had then gone to Jackson’s. The applicant went into Jackson’s kitchen and took a cooking or carving knife, about 30 centimetres long. Jackson said that the applicant pulled up his shirt, grabbed some skin on his left side and asked Jackson to stab the knife through the skin. Jackson refused. He said the applicant told him that he needed an alibi. Jackson repeated that he could not cut him and asked the applicant to put the knife down. Jackson said that the applicant proceeded to push the knife into his skin and then stopped. There was a small cut and that just the tip of the knife entered the applicant’s skin. The cut was a couple of millimetres long. During this time the applicant’s mobile telephone rang. The applicant gave the knife to Jackson and the applicant spoke on his telephone. Jackson hid the knife. When the applicant finished speaking on the telephone Jackson said he took the applicant into the loungeroom and he sat down. On Jackson’s version he asked the applicant if he had killed his wife, he had replied he had, that he had bashed her and then strangled her. Jackson said the applicant repeated that he had killed his wife. Jackson then told the applicant that he would need to repent before God first and that he did. Jackson was pressed for the applicant’s exact words at the time and he answered: “He asked God to forgive him for killing his missus and said he was sorry”. No-one else was present when that was said. Jackson said the applicant did not tell him where he went after he had bashed the deceased. Jackson said the applicant refused to go to the police. Before midnight the applicant left by the back of the property and said he was going to see his mother. Jackson said that the applicant asked if he could put something in the back yard. Jackson refused. The applicant did not tell Jackson what it was he wanted to place in the back yard. The applicant did not have anything with him at the time. As he was leaving over the back fence, the applicant told Jackson to keep his mouth shut.
There was further evidence at trial of the activities of the applicant on the night of 11 January 2004. There was evidence of a voicemail message left by the applicant on the telephone of Helen Sarrou, an acquaintance of the applicant, at 8.12pm on 11 January 2004. The applicant said on the message, “Helen, it’s Chris. I got a couple of knapsacks and a pair of socks. Can you ring me. I don’t know what to do.” At about 8.57pm on 11 January 2004 the applicant telephoned Philip Pearson. The telephone was answered by Pearson’s partner, Donna Walters. Pearson was asleep. When he spoke to the applicant he questioned why he was calling and threw the telephone. Walters picked it up and spoke to the applicant again. The applicant said to her, “Narelle’s lips are blue. She’s dead.” He also said, “I just went to the bottleshop. I come back and Narelle was dead.” The applicant hung up.
On that night of 11 January 2004 the applicant also went to see a friend, Helen Keating. She said he arrived at her door at about 9.15pm and said he wanted to leave some bags with her. Keating described the bags as plastic shopping bags that seemed to contain clothing. She said that the applicant was wearing jeans and a tee shirt at the time. She said the only other items that the applicant had with him were a bicycle, a jacket and softball bat. Keating refused to take the bags. The applicant departed but left the bat and jacket on Keating’s porch. These items were later obtained by the police.
Evidence was also given by Craig Walter Goble. He saw the applicant arrive at a hostel at about 10.30pm. The two had met previously concerning the sale of a car. The applicant spoke to Goble and said his girlfriend was dead. He then said that he did not know whether she was dead or not. Next, the applicant said the police would pin the death on him. The applicant then said that his girlfriend had stabbed him and showed Goble a wound under his shirt. A short while later, Goble left the applicant.
At about 2.00am on the morning of 12 January 2004, a Mildura resident, Valerie Gale Everett, was disturbed by noises outside her home. She found the applicant, whom she knew, and invited him in. The applicant carried a black sports bag containing some clothing. He was upset and crying. He asked Everett to remove an item from the bag. It was a tee shirt. Everett later discovered it was stained with blood and she gave it to the police. At the time Everett persuaded the applicant to go to the Mildura Hospital. They walked there together. The applicant was attended by a nurse at about 6.24am, Debbie Anne Currie. She knew the applicant and observed him to be tearful and agitated. He told Currie a number of things including that “Narelle’s dead”. The applicant also told Currie that he and the deceased had a tiff and that he had packed his bag and left her at home with a knife, that he went back and found her covered and he did not know what to do. The police then arrived at the hospital and the applicant was arrested.
In the record of interview the applicant gave a description of events with the deceased on 11 January 2004. His description was disjointed and partly repetitive. The applicant said that on the morning of Sunday 11 January 2004 he was cleaning the unit at Olive Avenue and the deceased was in bed. He said that during the day he accused the deceased of prostituting herself with various men for drugs. They had had similar discussions on the previous day. The applicant said that when he raised these matters the deceased turned her back on him.
The applicant also said that the deceased probably stabbed him with a knife, “She just cut me straight through”. When the cut on his side was pointed out during the record of interview the applicant said the deceased tried stabbing him and that he moved to the left. He said he tried to stop her and was holding her down, on the ground, in the kitchen. The record of interview ran in this regard, as follows:
“Q307…You said you got injured from that punch up. What injuries did you get? Did you get any injuries?
A. No. No. No. Well, just a little – I dunno what – she probably stabbed me with the knife or somethin’, but, then, in parts, she just cut me straight through. That was it. Yeah.
Q308. So, you’ve got a cut mark on the side of you, now?
A. Yeah. Well, she tried skinnin’ me, I moved to the side there, you know. Sort of,….you know. ‘Narelle’ – I tried to grab it off her – grabbed it off her, torn my…like that. I said, ‘Stop it, Narelle. Stop it. How far do you want to go? How far?’
Q309. So, how were you holding her down?
A. By the throat.
Q310. And where was this – where was this taking place?
A. In the kitchen.
Q311. And – was she on the ground?
A. Yeah.
He said he held her down for about 30 or 40 seconds at the most saying “snap out of it”. The applicant said he did not apply much pressure and that the deceased was breathing. He said she got up normally and at that point he went to have a shower. The deceased sat in the lounge “smoking cones”. The applicant said that when he returned from the shower his money was missing. He said that the deceased then became hysterical and he did not know what happened after that. The applicant said that the deceased tried to stab him. He said they had had a fight, that they “punched on”, there was “pulling hair” and that he “just dragged her around”. He said that he threw her in the shower to “snap her out of it”. He said that the deceased was just sitting in the shower crying. He said that she started to feel “funny”. He said that he turned the shower off and picked her up. The applicant said that he put the deceased in bed and dried and cleaned her up. The applicant said that he set about cleaning up. He said he went into the room with a blanket and that the deceased was warm and he could hear her heart beat faintly. He said he let her sleep and she was making snoring noises. He said that when he checked on her in order to give the deceased a drink and some tablets, her body and face were cold. He could hear a heart beat and gave mouth to mouth resuscitation. The applicant said the deceased did not respond to him and he told her he was going to “Coles” and would call an ambulance. He said she went “jaundiced” and pale.
The applicant said that he left the unit to buy a drink of bourbon and called an ambulance on his mobile telephone on the way. When asked by the police about the call to the ambulance operator the applicant said he told the operator, “ … I probably grabbed her around the throat … “. The applicant said that when he came home the deceased was cold. The applicant said that when he returned the deceased was lying on the bed wearing only black underpants. There was a cover over her and he pulled it back.
The applicant denied that he killed the deceased.
The defence endeavoured to attach significance to the evidence of Cooper-Mills. In his evidence, Cooper-Mills said that at the time after he found the deceased he was angry and stressed. He said he wanted to hunt the applicant down. Cooper-Mills was cross examined about the false statement he gave to the police, that is, in not telling them he had been inside the unit and what he had seen and done in there. Cooper-Mills admitted in cross-examination that he knew the deceased (for about 12 months before her death). He denied that he had any relationship with her. He said he loved her as a friend, not as a girlfriend. Cooper-Mills also told the police that he had a drink with the deceased on a Saturday before she died. The police recorded that he drank with the deceased on 10 January, the day before she died. Under cross examination, Cooper-Mills said that the police noted the incorrect date and that he in fact had a drink with the deceased, a week earlier on 3 January 2004.
These matters were relied upon by defence counsel in his final address in order to put to the jury that there was sufficient doubt that the applicant was not the killer. In support of that urging it was further put that Cooper-Mills was an untruthful witness and should not be believed. The trial judge summarised the evidence of Cooper-Mills in some detail. His Honour also summarised carefully the way defence counsel put the case including as to the position and involvement of Cooper–Mills at the scene at Unit 3, Olive Avenue.
The applicant did not call any evidence at the trial and stood mute. His defence was that whilst he and the deceased had a fight on 11 January 2004, that he had been aggressive and grabbed her by the throat, he did not kill her. It was put to the jury that there was evidence of Cooper-Mills entering the unit after the applicant left. It was also put that the neighbour Byrne saw the deceased speaking to a man out on the road and that Gilligan heard raised voices. The defence focused on Cooper‑Mills as being dishonest in not telling the police of his entry into the unit and other matters of credit and as having the opportunity, as long as half an hour, with the deceased. Ultimately it was put to the jury that the deceased was with Cooper‑Mills on the evening of 11 January 2004 and that fact created sufficient doubt to acquit the applicant. It was further put to the jury that if the applicant had admitted to killing the deceased after the event to Jackson it was not unusual given the earlier events of the day. However, not only was it put to the jury that the applicant was not the killer, it was also put that if he killed the deceased he had acted in self-defence, alternatively, the defence of provocation was open to him.
The grounds of appeal relied on for the purposes of the application for leave to appeal against conviction were:
(1) The learned trial judge erred in failing to give the jury any or any adequate directions upon alleged admissions made by the applicant (Ground 1); this ground was abandoned.
(2) The learned trial judge erred in failing to give the jury any or any adequate warning in relation to the witness Cooper-Mills (Ground 2).
(3) The learned trial judge erred in failing to give the jury any directions upon:
(i) consciousness of guilt;
(ii) lies; and
(iii) a false version of events (Ground 3).
(4) The learned trial judge erred in failing to give the jury any or any adequate directions upon proper inconsistent statements (Ground 4); this ground was abandoned.
(5) The learned trial judge erred in failing to properly relate the evidence in the trial to the issue of provocation (Ground 5).
(6) The learned trial judge erred in failing to properly relate the evidence in the trial to the issue of self-defence (Ground 6).
(7) The learned trial judge’s charge was unbalanced (Ground 7).
(8) The verdict of the jury was unsafe (Ground 8).
The abandoned grounds left only six grounds of appeal against conviction.
I turn then to the first ground to be considered, Ground 2, namely that the trial judge failed to give any or any adequate warning in relation to Cooper‑Mills. After a detailed overview of the evidence of Cooper-Mills, the trial judge said to the jury the following:
“ Let me make this comment to you. So far as Cooper-Mills is concerned you have got to make an assessment of him, but he is of course, not on trial here. The question for you is has the Crown proved that Stylianou killed the deceased – satisfied you beyond reasonable doubt. You might think that Cooper-Mills is someone who got himself into a situation, lied about it, later decided to tell the truth and did so; alternatively, of course, you may take the view that he is lying right through. That is entirely a matter for you. The only comment I would make of course is that he has voluntarily gone to the police after he realised - after he went to this committal hearing and that was a voluntary action on his part. You may see something in that, you may or may not, it is entirely a matter for you. That is a question of fact. But he is not on trial and he is not being tried. You concentrate on the question that you have to determine, which is whether the Crown has proved that Stylianou committed this crime.”
It was submitted by Mr Tehan before this Court that Cooper-Mills was an important witness. It was argued that a warning of the type referred to in Faure v. DPP[1] should have been given because of the circumstances of the lies told by Cooper-Mills and, also, the possible inference that could be drawn from his actions that he had interfered with the deceased. It was further submitted that Cooper-Mills in the circumstances had good reason to implicate the applicant whilst distancing himself. The second matter put in support of a Faure warning was that Cooper-Mills had “real animus” towards the applicant because of feelings he had for the deceased. The matters relied upon to criticise Cooper‑Mills were his lie in his first statement to the police by omitting to reveal he had been in the Olive Avenue unit and discovered her body; his repeated lying that he had been drinking with the deceased the day before her death; the giving of a false name and personal details to the police; his attempt to implicate the applicant by previously suggesting that the applicant had made admissions about the deceased; the fact that he had been with the deceased for at least half an hour in suspicious circumstances at the time of her death; the fact that he said he loved the deceased; that he had seen her in her underpants notwithstanding that her body was covered up and, also, that he had seen bruising; and the fact that he had left the house of the deceased through the back door when the evidence revealed that the door was closed. Reliance was also placed upon the fact that Cooper-Mills said that he felt that he wanted to hunt the applicant down for killing the deceased.
[1][1993] 2 V.R. 487.
At the outset it is to be observed that a Faure warning was not sought by counsel in the trial below. Nonetheless, when the entire evidence of Cooper‑Mills is considered in the context of the whole case, the evidence of that witness in my view was not critical on any significant issue. In cases where a Faure warning is called for the evidence of the particular witness will be damning for the defence case. In this matter, when consideration is given to the timing of events[2], the statements in the record of interview by the applicant including his admission that he had choked the deceased, the fact of a ten minute opportunity for someone other than the applicant to deal with the deceased combined with the post-mortem lividity and the observations that the body was cold, all combined to place Cooper-Mills at the periphery of the evidence. It was open to the jury to conclude that there was not an opportunity for anyone else in those circumstances to have killed the deceased other than the applicant. This was not a case that called for a Faure warning.
[2]The first ambulance call was made by the applicant at 6.50pm near Liquorland and the second call was at 7.01pm near the flat, thereby creating an opportunity for a third person to enter the unit of ten minutes.
There was a substantial amount of evidence as to the volatile and difficult relationship between the applicant and the deceased. Cooper‑Mills contributed very little in that respect. In any event, the trial proceeded on the basis that the applicant admitted to the police that he had choked the deceased. In the circumstances, therefore, it is difficult to accept the submissions with respect to the assertion that Cooper-Mills had the opportunity suggested. Curiously, in the course of cross-examination of Cooper-Mills he was asked the question and answered:
“By the way did you kill her?---No, I did not.”
In my view Cooper-Mills was no more than a peripheral witness. The mere fact that it was suggested that he was an alternative person to have killed the deceased in the context of the evidence is not the basis of a Faure warning. The evidence of Cooper-Mills was more than adequately addressed by his Honour. In all the circumstances I do not consider that Ground 2 is made out.
The third ground of appeal was concerned with consciousness of guilt, lies and false version of events, and the complaint that the trial judge failed to give an appropriate warning It was submitted that the trial judge was in error in dealing with self-defence by referring to the evidence of Jackson and saying that if the jury accepted his evidence then no question of self-defence may arise and that the part of the record of interview dealing with self-defence (the deceased’s alleged stabbing of the applicant) might be regarded as a fiction. His Honour charged the jury as follows:
“ Well, the Crown points in this case to a very important piece of evidence, which, if you accept it, you may well come to the conclusion that this part of the record of interview was merely a fiction. And that evidence, of course, is the evidence of Mr Jackson, who says that the nick in the accused’s side occurred when he asked him to stab him and he would not, and so he pulled the skin out and stabbed himself with the knife.
That may satisfy you that no question of self-defence here arises at all because you might just not accept the accused’s statement and his demonstration of what he says occurred at the time immediately before he grabbed the deceased around the neck.”
Later in the charge the trial judge returned to the subject of self-defence. His Honour charged:
“ In this case, however, dealing with the facts now of this case, the Crown here says this event just did not occur and they say the reason that you should be satisfied that it did not occur was that it was set up, it was an attempt by the accused to enlist Mr Jackson’s aid initially, to give him an injury which he could use to say that he had been attacked or that there was a necessity for self defence.
And the Crown’s argument is that if you accept Jackson’s evidence, then this story to the police in answer to the question that “she came at me with a knife”, etcetera, you can reject beyond reasonable doubt as having any cogency whatsoever.
So, it says it is not a question of disproportionate response, it is a question of there never being any attack in the first place. That this was simply an invention by the accused, which he thought of before he spoke to Jackson, when he asked Jackson to stab him, and Jackson refused, and then in Jackson’s presence he took a knife and pulled a fold of skin out and put the knife to the skin thereby causing…a nick…so, self-defence must be negatived by the Crown. The accused does not have to prove anything. In this case the Crown says it negatives it in the way that I have suggested.”
In my view this matter was entirely different from the circumstances in cases such as R v. Nguyen[3] and R v. Chang[4]. In Nguyen and Chang the issue was central to determination of guilt. In the present case, the Crown case consisted of a large number of admissions made by the applicant supported by the circumstantial evidence of the case. The matters of the self-inflicted wound and the attempted false alibi were critically connected to the admission made by the applicant to Jackson. The defence criticised Jackson on the basis that none of the conduct he described occurred. However, if the admission of the applicant to Jackson was accepted, the other matters fell away. The trial judge carefully took the jury though Jackson’s evidence. It was then a matter for the jury as to whether they believed Jackson or not. Consciousness of guilt was never to the fore of the trial. The subject was not raised inferentially or otherwise by the prosecutor, defence counsel or the trial judge.[5] In my view, analysis of consciousness of guilt, lies and the false version of events would not have assisted the applicant. In any event, no exception was taken or a direction requested from the trial judge below.
[3][2001] VSCA 1.
[4][2003] VSCA 149.
[5]Cf., for example, R. v McCullagh (No. 2) [2005] VSCA 109.
In my view Ground 3 cannot be made out.
I turn next to Ground 5 whereby it was alleged that the trial judge erred in failing to properly relate the evidence to the issue of provocation. His Honour ruled that provocation be left to the jury on the basis that an attack with the knife by the deceased on the applicant could constitute some evidence of provocation. It was ruled that provocation could be left to the jury on the narrow basis that the only possible evidence of provocation was constituted by the statements of the applicant in his record of interview[6] that he had been stabbed. It was argued before this Court that there was other evidence that could have been used as evidence from which a loss of self-control could be suggested. It was submitted that the trial judge too narrowly restricted the evidence admissible on the issue of provocation and that the jury would have been entitled to have regard to other matters in the record of interview where the applicant said that the deceased was prostituting herself with drugs, that she laughed at him and that it [the incident] had built up over the previous 12 weeks. It was also submitted that the jury was entitled to have regard to the evidence of consumption of drugs by the deceased and, further, that the history of violence on the part of the deceased towards the applicant was relevant.
[6]Questions 307 and 308.
After directing the jury on the law in relation to provocation, his Honour said:
“Here the only matter that you have got to consider, the only evidence there is about provocative act, is the accused’s version of what he says occurred immediately before he held the deceased around the neck; that is to say, in those questions that I read out to you, where he says that ‘she probably stabbed me with the knife or somethin’ and he describes, the policeman says ‘you’ve got a cut, Michael, on the side of you’ and he describes – the same questions, 308.
If you were to consider that that constituted provocative behaviour, if it occurred, remembering that the Crown has to satisfy you it did not occur, well, then you have got to consider the possible effect of such behaviour on the accused to which you must direct your attention.”
Later on in the charge his Honour said:
“In this case the only possible provocative behaviour that you might be concerned about is that demonstrated by the accused in his record of interview when he said the deceased had a knife and came at him, and he responded by holding her around the neck”.
Again, later on, the trial judge, after revisiting the statements of the applicant in the record of interview as to the alleged stabbing said:
“This case, however, dealing with the facts…the Crown here says this event just did not occur. And they say the reason that you should be satisfied that it did not occur was that it was set up, it was an attempt by the accused to enlist Mr Jackson’s aid initially, to give him an injury which he could use to say that he had been attacked or that there was a necessity for self-defence.
And the Crown’s argument is that if you accept Jackson’s evidence, then this story to the police, in answer to the question that ‘she came at me with a knife’, etcetera, you can reject beyond reasonable doubt as having cogency whatsoever.
The manner in which the defence was conducted below rendered the submissions in this Court with respect to provocation difficult. The principal defence throughout the trial was that the applicant was not responsible for the death of the deceased. It was also put that the applicant acted in self-defence. It was in that context that provocation fell to be considered by the trial judge. In other words, the jury was asked to consider that, contrary to the way the case was put, there was nevertheless material from which it could be inferred that the applicant had killed the deceased while acting under provocation. In the final address, defence counsel raised the questions of self-defence and provocation. The applicant himself did not give evidence. The version of events surrounding the killing, much of which was disputed, came from the matters that the applicant had said to various witnesses and the police. Hence, the issue became one that if the jury was satisfied beyond reasonable doubt that the applicant had killed the deceased then the jury had to consider whether the killing might have been provoked. Logically speaking, the jury could only be asked to consider material from which it could be said, actually or inferentially, that what the applicant said had “caused him” to kill the deceased. If the stabbing incident referred to by the applicant in his record of interview was rejected beyond reasonable doubt it followed that the jury was called upon to engage in an intellectual exercise that would give rise to a basis of provocation. It was submitted by the Director, Mr Coghlan, that in the absence of the assertion by the applicant in the record of interview relating to the alleged stabbing of him by the deceased, the material was not otherwise sufficient to raise provocation as it would have relied on mere speculation because the evidence of loss of self-control was slight in any event. As the Director put the matter, in the absence of the stabbing there was no evidence of self-defence or provocation.
In my view, in the difficult circumstances of the way in which the defence was conducted below, the trial judge gave a proper direction to the jury in confining the matter of provocation as he did. His Honour made a careful ruling and a careful charge on these matters. In my view Ground 5 could not be made out.
I turn then to the matter of whether there was error in the relation of the evidence to the issue of self-defence. The trial judge directed the jury upon self‑defence and there was no challenge to those directions before this Court. However, it was submitted by Mr Tehan that in considering whether an occasion for self-defence arose, the jury would have been entitled to have regard to the volatile relationship between the parties, including past use of a knife by the deceased towards the applicant, in the context of the ingestion of drugs by the deceased. It was submitted that the issue of self-defence was confined by the trial judge to whether the deceased stabbed the applicant and whether the applicant concocted a false story as to being stabbed. In my view there is no substance to the ground. The direction of self-defence in the circumstances was entirely appropriate. As Mr Coghlan submitted, if the jury rejected the use of the knife by the deceased against the applicant, then self-defence was otherwise entirely speculative.
I turn to the remaining ground, Ground 7, that the charge was unbalanced. The criticism was levelled at three matters: the treatment of the applicant’s admissions; the treatment of Jackson’s evidence; and the treatment of Cooper-Mills’ position. It was submitted that while the trial judge gave the jury a direction upon admissions in putting the defence case, without referring to the cross-examination of Jackson the judge said no more than that the admissions might not have been true. It was also submitted that the trial judge wrongly directed the jury that if Jackson’s evidence was accepted then the submission that there were no admissions was untenable, and it was put that this was not necessarily the case. It was further submitted that the trial judge appeared to have been critical of arguments concerning the time of death of the deceased and the possible involvement of Cooper‑Mills. Finally, it was complained that the trial judge charged on the issues of provocation and self-defence in an unduly restricted way, as alleged with respect to Grounds 5 and 6.
The manner in which the defence of the applicant was conducted below inevitably placed the trial judge in some difficulty. In my view, close consideration of the charge reveals that it was appropriate and not unbalanced. As Mr Coghlan submitted, when the case was stripped of its “non-essentials”, it was in fact a strong case. Again, and quite importantly with respect to this ground, no exception was taken on the question of balance below. I have closely considered the charge and the complaints made against it. None of them survive scrutiny against the content of the charge. In all the circumstances, I do not consider that the remaining ground can be made out.
It follows, therefore, that I am of the view that the application for leave to appeal against conviction should be dismissed.
The applicant also sought leave to appeal against sentence on the sole ground that it was manifestly excessive.
The applicant was aged 37 years at the time. The trial judge accepted that he was in all likelihood drug affected at the time of the killing of the deceased. His Honour had before him a report from a psychiatrist to the effect that the applicant had previously suffered from drug induced psychosis. There was no suggestion that the killing was pre-meditated and it occurred in the context of a volatile relationship between two persons who were described by the mother of the applicant as having “horrific drug and emotional problems”.
There was also evidence before the judge on sentence that the applicant had suffered a disrupted upbringing including sexual abuse and that he had suffered a serious injury when he was 18 following a vicious assault that in turn resulted in the
loss of an anticipated football career and employment opportunities. The matter was also put on the basis that, after the incident of the assault that damaged his youth, the applicant drifted into continuing drug abuse that became very much part of his relationship with the deceased. It was urged by Mr Tehan that in all the circumstances of this matter the sentence was manifestly excessive.
The applicant was able to rely upon certain mitigating factors. He had suffered a dreadful assault as a young man, when aged only 18 years, and as a consequence apparently drifted into a downward spiral of drug abuse that led to his relationship with the deceased. The murder of the deceased was the result of the volatile and difficult emotional circumstances that pervaded the relationship between the applicant and the deceased.
In my view, the sentence was carefully considered and well within the range. The killing of the deceased, notwithstanding the nature of the relationship between the applicant and the deceased, was violent and vicious. Although it must be acknowledged that he showed remorse for the death of the deceased, there was the other circumstance that the applicant did not admit his guilt. In all the circumstances I consider that the sentence imposed by the trial judge, after very careful and thorough consideration, was not manifestly excessive.
I would also refuse the application for leave to appeal against sentence.
WINNEKE, P.:
I agree with the Chief Justice, substantially for the reasons which she gives, that the applications for leave to appeal against conviction and sentence should be dismissed. I desire to add some comments of my own in respect of grounds 2 and 3.
Although Mr. Tehan, who appeared with Ms. Judd for the applicant, argued a substantial number of grounds (identified in the reasons of the Chief Justice), he conceded that ground 3 (failure of the judge to give adequate directions upon what was described as “alibi evidence”) was the “kernel” or “high watermark” of the conviction application.
Ground 3 was directed to the evidence of the witness Jackson who said that, at some time after the deceased had met her death, the applicant had arrived at his house in an agitated state and, amongst other things, had told Jackson that he “needed an alibi”, lifted his shirt, took hold of folds of his skin and asked Jackson to plunge a knife (which he had given to Jackson) through the skin. When Jackson declined, he took the knife and made a half-hearted attempt to pierce himself with it. The description of these events, as the Chief Justice has noted, was only part of the evidence of Jackson which, in its essence, was evidence of direct admissions of guilt. Appropriate directions were given by the trial judge in respect of these admissions[7]; and Mr. Tehan made no complaint about the adequacy of his Honour’s directions in that regard. Rather, Mr. Tehan submitted that the evidence of “self-stabbing” given by Jackson was evidence in the nature of “alibi” evidence; and that his Honour should have directed the jury in accordance with principles stated in such cases as R. v. Turnbull[8], R. v. Johnson[9], R. v. J. (No.2)[10] and R. v. Juric[11].
[7]cf. Burns v. R. (1975) 132 C.L.R. 258 at 261; R. v. Alexander & McKenzie (2002) 6 V.R. 53 at 79-80
[8][1977] 1 Q.B. 224 at 228 ff.
[9][1961] 1 W.L.R.1478 at 1479-80.
[10][1998] 3 V.R. 602 at 630-1.
[11](2002) 4 V.R. 411 at 436.
As the Director pointed out, there was nothing in the evidence of Jackson which suggested that the applicant was raising an “alibi”; and no-one at the trial suggested that he was. Rather, Jackson’s evidence was calculated to suggest that the applicant, in asking Jackson to stab him with the knife, was seeking to create a false defence. However one was to “label” it, Mr. Tehan submitted, it was conduct, which – if accepted by the jury to have occurred – would be likely to be used by the jury as evidence probative of guilt; and, thus, required the judge to give a direction to them in accordance with Edwards v. R.[12]; or R. v. Nguyen[13]. This was a case, it was submitted, where, in the interests of a fair trial, the judge should have told the jury that they could only use the evidence of Jackson as to the “request” by the applicant to “stab” him (if they accepted it) as evidence of guilt if they were satisfied that there was no other explanation, consistent with innocence, for it; and that the accused only engaged in the conduct because he knew that, to reveal the truth, would implicate him in the crime charged. They should also have been directed, Mr. Tehan submitted, that there might be many reasons other than realization of guilt for the conduct, and what those reasons might be.
[12](1993) 178 C.L.R. 193 at 210-211.
[13](2001) 118 A.Crim.R. 479 at 489.
Although there might be some technical merit in these arguments, it seems to me that, in the context of the issues at trial, there is little substance in them. When viewed as a whole, the evidence of Jackson was evidence of admissions of guilt made to him by the applicant; in the context of which the applicant’s “request to be stabbed” was merely ancillary. Understandably, there was no objection taken by counsel for the applicant at trial about the absence of an “Edwards direction”; because any such further direction would no doubt have incorporated a reminder to the jury by the trial judge that the essence of Jackson’s evidence was the explicit admissions of guilt made by the applicant. It should be noted that the impact of evidence, which it is later said to have warranted an “Edwards direction”, is far more likely to be instinctively appreciated by judge and counsel engrossed in the trial than by an appellate court far removed from the contest and the issues which governed the conduct of counsel at that trial. This, in my view, was a case where there was no forensic advantage to be obtained by the applicant in calling for such a direction[14]. In this respect, I agree with the submissions of the Director that the issue of the self-inflicted wound and “false alibi” was “integrally connected to the admissions made [by the applicant] to the witness Jackson” and that ”[t]o suggest in this case that the jury might have rejected the evidence of the various admissions but proceeded to conviction on other matters was fanciful”. In any event, even if the judge was in error in failing to give an “Edwards direction”; I am of the view that no substantial miscarriage of justice, within the meaning of the proviso to s.568(1) of the Crimes Act, was occasioned by such failure.
[14]cf. R. v. Arundell [1999]2 V.R. 228 at 240-1 per Charles, J.A.; per Callaway, J.A. at 246-7.
Ground 2
This ground asserted that the judge should have given a warning to the jury of the type referred to in Faure v. D.P.P.[15] in respect of the evidence given by the witness Cooper-Mills. In Faure v. D.P.P., the Court of Criminal Appeal held that the categories of cases in which the trial judge should give a warning that “it would be dangerous to convict on the uncorroborated evidence” of a particular witness were not closed. In that case the only substantial evidence connecting the accused with the crime was his wife whom the evidence revealed to be the alternative candidate as the murderer, and who, therefore, had a special interest in implicating the accused. The Court considered cases such as Bromley v. R.[16], Carr v. R.[17], Longman v. R.[18], McKinney v. R.[19], and Pollitt v. R.[20], in which the High Court had considered when, and in what circumstances, a warning of the type to which I have referred should be given to “avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case”. I agree with the Chief Justice, for the reasons which she gives (in paragraphs [38] to [40] of her judgment) that no such warning was required in respect of the evidence of the witness Cooper-Mills. The evidence against the applicant in this case was very strong and, when looked at in its entirety, demonstrates that the evidence of Cooper-Mills was not critical on any issue; in contra-distinction to the evidence of the witnesses in the cases to which I have referred. Warnings of the type described in those cases are designed for witnesses who give evidence of far more significance to the guilt of the accused than was the evidence of Cooper-Mills. It was not surprising, therefore, that no such warning was called for by the experienced trial counsel appearing for the applicant.
BUCHANAN, J.A.:
[15][1993] 2 V.R. 487.
[16](1986) 161 C.L.R. 315.
[17](1988) 165 C.L.R. 314.
[18](1989) 168 C.L.R. 79.
[19](1991) 171 C.L.R. 468.
[20](1992) 174 C.L.R. 558.
In my opinion, the applications for leave to appeal against conviction and sentence should be refused for the reasons stated by the Chief Justice.
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