R v Subramaniam

[1999] QCA 108

IN THE COURT OF APPEAL	99.108
SUPREME COURT OF QUEENSLAND

CA No 333 of 1998

Brisbane

[R v Subramaniam]

T H E Q U E E N

v

RHAAJESH SUBRAMANIAM Appellant

McMurdo P
McPherson JA

Muir J

Judgment delivered 9 April 1999

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

APPEAL AGAINST CONVICTION DISMISSED.

CATCHWORDS: CRIMINAL LAW - MURDER - EVIDENCE - Judicial discretion to admit or exclude evidence - Verdicts unsafe and unsatisfactory based on circumstantial evidence.

Domican v The Queen (1992) 173 CLR 555

Counsel:	The appellant appeared on his own behalf Mr D Bullock for the respondent
Solicitors:	The appellant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent
Hearing Date:	23 March 1999

REASONS FOR JUDGMENT - McMURDO P

Judgment delivered 9 April 1999

1. I agree with McPherson JA that the appeal against conviction should be dismissed for the reasons given by him.

   REASONS FOR JUDGMENT - McPHERSON JA

   Judgment delivered 9 April 1999

2. This is an appeal by Rhajeesh Subramaniam against his conviction on charges of murdering Ajay D'Souza and of Priya D'Souza on 12 February 1997. The deceased, who were brother and sister aged 21 and 22 years respectively, came from Bombay. They were students at QUT in Brisbane, and lived at unit 71, Walton Way, which is a cluster of town houses at The Gap. The appellant, who until these events was also studying at QUT, is from Singapore. He too is of Indian origin and was residing, until finding other accommodation, with the deceased brother and sister at unit 71.

3. The precise time at which they died is not known. The last occasion on which Ajay D'Souza was seen alive by any witness at the trial was at about 7.30 pm on 12 February 1997, which was a Wednesday evening, when he was seen in the city wearing the clothes in which he was later found dead. There was evidence that there was a Council bus service which would have brought him home at about 8.30 pm.

4. The body of Priya D'Souza was also found dressed in clothing which, or similar to which, she was wearing when last seen alive. On the same Wednesday evening she was working at an Indian restaurant in Toowong. She left at about 9.30 pm and dropped off a friend and fellow worker on her way home to Walton Way, where she must have arrived at or shortly before 10 pm. It is known that she was alive then because at that time Mrs Carter, the manageress of the units, received a telephone call from Priya saying that the lights were off in unit 71. She advised Priya to go to the garage and find the circuit breaker box. Shortly afterwards the call cut off, but rang again a few seconds later, when Mrs Carter heard a series of four or five screams from Priya. There was silence for a few seconds, and then a male voice came on the telephone, and said words to the effect that the lights had come on again. On the following Thursday evening, 13 February 1997, the appellant, in conversation with Mrs Carter, confirmed that it was he who had spoken those words on the telephone on the previous evening. By that stage (that is, Thursday evening), the disappearance of Ajay and Priya was being investigated by Paul Tilson and others including the appellant. Paul Tilson was the boyfriend of Priya, who at about 5.15 p.m. on Thursday had arrived at Walton Way to attend a meeting with Mrs Carter which he and Priya had arranged for 6.15 that evening. When he entered the unit, he found a large bloodstain on the lounge carpet and a trail of blood leading into the garage. Some of the blood was still moist to the touch. A bloodstained shoe belonging to Priya was found in blood in the garage. The blood was analysed and was found to have come from Ajay or Priya.

5. The bodies of the two victims were not located until about 5 pm on Friday 14 February 1997. They had been left at the end of a dirt track leading into the forest on the road to Mt Nebo some distance from The Gap. The bodies were wrapped in or accompanied by quilts and a pillow, which were capable of being matched with similar items in unit 71. Towelling strips and black adhesive tape had been used to wrap and secure the quilt around Priya's body. The severed end of the tape exactly matched the end of a reel of such tape in the kitchen at unit 71. It was not possible to say exactly how long the two had been dead; but entomological evidence based on the stage of development of fly maggots inhabiting the bodies suggested that death had taken place at a time between about 10 pm on Wednesday 12 and some time early on Thursday 13 February. Depending as it does on the time at which the bodies were left in the forest and on ambient temperatures, which advance or retard the development of the maggot larvae from the time when the bodies are exposed, this method of fixing the time of death is not precise; but it provided a basis for estimate which went some way to supporting the Crown case as to the time of death. The appellant sought, but was refused, an adjournment of the appeal in order to obtain a pathologist's report as to the rate at which blood dries. He said he had been in touch with a lawyer who hoped to find someone who would be able to supply such information. There is reason to suppose that such evidence is not available; but, if it is, it was equally available at the time of the trial, yet no effort was made to obtain it at that time.

6. Post mortem examination of the bodies revealed that each of the deceased had died when his or her body was pierced by a missile which went through the heart. The appearance of the wound track left by the missile was unusual. It puzzled the forensic experts until they learned that a crossbow had been found in the unit, together with what were described as hunting arrow heads. Not surprisingly, forensic pathologist Dr Naylor had never before examined the body of a victim whose death was caused by a weapon of that kind; but that did not disqualify him from giving expert testimony on the probable cause of death based on the examination conducted. The missiles which had gone through the hearts of the victims were never found; but there was a hole in the blind and in the glass of one of the windows of the lounge of the unit, which could have been made by an arrow head from a crossbow after it passed through a body. Two arrow heads of that kind were found in a locker associated with the appellant, to which reference will later be made. On examination, the crossbow recovered from the unit was found to have the appellant's fingerprints on it. That was, as he said, not surprising because it was his crossbow. It had been discharged on at least one previous occasion, when he and Ajay were trying it out. On that occasion the missile went through the ceiling of the unit.

7. Had matters rested there, it might perhaps not have sufficed to establish that it was the appellant who was the murderer. It is true that the evidence strongly suggested that he was the only person in the unit at about the time the two were alleged to have been killed; but at the trial he did not give evidence himself, and it was said to be at least a theoretical possibility that someone else might have committed the murders during the morning or possibly even the afternoon of Thursday 13 February 1997 at some time before Tilson discovered the blood in the unit in the early evening of that day. There was, however, other evidence tending to show that the appellant was the killer and that his motive was, as the Crown suggested, to obtain money. He told the police that he was in receipt of $1,000 to $1,500 a month from his relations in Singapore and that he had $10,000 of his own; but he also admitted that he indulged in gambling at the casino.

8. Among that other evidence is that at 11.48 pm on Wednesday 12 February someone had used Ajay's keycard at The Gap branch of the Commonwealth Bank in an attempt to withdraw $500 from Ajay's account with that Bank by means of the ATM facility. However, the wrong PIN number was used, and the attempted withdrawal was rejected by the machine. By that time, as the Crown contended, the two victims were already dead, and it was suggested at the trial that the attempted withdrawal was the work of the appellant. In what took place on the following day, there was a substantial body of evidence capable of supporting that hypothesis.

9. On Thursday 13 February 1997, the appellant made a series of withdrawals from Ajay's accounts with the Commonwealth Bank. Beginning with the Fortitude Valley branch of the Bank at 9.59 am, he moved on to and made successive withdrawals at the Holland Park, Coorparoo, Mt. Gravatt and Carindale branches of the same Bank. In the course of doing so, he used Ajay's keycard. At about 12.42 pm he used Ajay's visa card to buy a "zoom" lens for a Cannon camera at Rainer's camera shop in the city. Several of the tellers or those who served him at these places later claimed to recognise the appellant as the person who had made the withdrawals. Purely visual identification is vulnerable to various known weaknesses, but in this instance the critical factors are that the appellant's fingerprints were later identified on the withdrawal slip used at the Valley branch of the Bank, and that in some instances the image of the person making the withdrawals was recorded on a security camera at the bank. In addition, there was expert evidence that the signatures on the withdrawal slips were "simulations" or forgeries, even if it was not possible to say that the appellant had subscribed them himself. "It is quite clear", said counsel for the appellant in his closing address to the jury at the trial, "that my client took some of the money out of their bank accounts".

10. A total of some $9,800 was withdrawn in this way leaving a credit balance of only about $8.50 in Ajay's account. A sum of $9,860 was later found in a Commonwealth Bank envelope inside a textbook in a black bag located in the lounge of the unit at The Gap. The appellant's fingerprints were found on the envelope, and one or more of the bank tellers recalled that the customer who made the withdrawals had such an envelope with money in it when the withdrawals were made. The black bag contained various items of property bearing the name of the appellant, a cap similar to one that some of the tellers said he was wearing at the time of making the withdrawals, and a crossbow string. On top of the bag was a shirt with $220 in notes in the top pocket. One of the witnesses identified the shirt as the one the appellant had worn on Thursday. Also discovered in the bag was a page torn from a telephone book, showing the addresses of various Commonwealth Bank branches some of which were ticked. In addition, a piece of paper was found with signatures appearing to be those of Ajay D'Souza suggesting that someone had practised simulating that signature. Like the page from the telephone book, it bore the fingerprints of the appellant.

11. The police search of unit 71 also yielded a blue shirt with blood on it from both victims as well as from the appellant. A pair of trousers was found with a bloodstain from the appellant in the fork. In the pocket of the trousers were three keys which fitted lockers 12, 18 and 40 in the basement of the Myer Centre in the city. A search of locker 12 revealed a handbag belonging to Priya which was stained with her blood, a number of her papers, and Ajay's visa card. On examination, some of these items also revealed the fingerprints of the appellant. Locker 18 contained Ajay's Commonwealth Bank keycard, which had been used to make the withdrawals on Thursday 12 February, together with a number of other items with the appellant's fingerprints on them. Locker 40 contained Ajay's backpack, which was stained with his blood. Inside it was a brown paper bag containing two hunting arrowheads for a crossbow. A fingerprint of the appellant was found on the paper bag.

12. The Crown case against the appellant was strong. Its strength is reflected on his side by his failure in interviews with the police or at trial to offer any rational hypothesis differing from that which was later advanced by the prosecution at the trial. Counsel for the appellant was left with no real alternative but to address the jury on the footing that the prosecution had not proved its case beyond reasonable doubt. The appellant might, he suggested, have been guilty of fraudulent appropriation, but not of murder.

13. The appellant was, of course, not obliged to give evidence, but, in the absence of an account from him, it is difficult to explain the evidence except on the footing that he killed Ajay and Priya D'Souza. Counsel suggested to the jury the possibility that someone else might have killed them, and that the appellant had simply taken advantage of their deaths to make use of the victims' credit or bank cards for his own purposes. Among the weaknesses in this submission are its failure to account for the presence of the victims' blood on the appellant's shirt; or the items found in the lockers at the Myer Centre; or the fact that the appellant was in the unit throughout the Wednesday night in question; or the apparent efforts, which someone had made to clean up some of the blood in the unit at a time when, on this hypothesis, the appellant must have been there himself.

14. In saying that, it should also be mentioned that at 8.00 am on Thursday morning the appellant called on another student Ms. Narayanan at Walton Way to say that Priya had asked him to tell her she would meet her at QUT later in the day. That established his presence at the unit at that time on Thursday morning. As to the previous night, there was evidence of a telephone call being made to the unit at some time between 10.00 and 10.30 pm on the Wednesday by Mr Tilson, who inquired after Priya. The appellant answered the telephone and said she was not there. He did not mention that she had come home at 10 pm shortly before she had spoken to Mrs Carter. He also said that Ajay was asleep, and he promised to give Priya a message if she came back before 11.00 pm. Another Indian student friend from Singapore, who telephoned between 11.00 and 11.30 pm that night, was told that Ajay was asleep at that time. The person at the unit who answered this call was described as having the distinctive accent of a Singaporean Indian. A Mr Bannister, who was an officer of Telstra, produced records showing that the call from Mr Tilson's telephone number to the telephone at unit 71 was recorded at 10.25 pm on Wednesday 12 February 1997, and that it lasted 46 seconds. The appellant complained that this evidence was not made available to him before the trial; but all it did was to confirm the correctness of Mr Tilson's evidence about his call. He had been cross-examined briefly about the accuracy of his recollection of the timing of that call and the evidence of Bannister no doubt served to make the time of it more certain.

15. The same general comment applies to the complaint about the evidence of a Council employee Mr Cullen, who testified to the timetable for departure and arrival times of bus services from the City to The Gap on Wednesday evenings, and the proximity of the bus stop to the Walton Way townhouses. No one who lives at The Gap (which included the appellant at that time) could possibly have been surprised by that evidence. Counsel for the appellant did not cross examine Mr Cullen, and no adjournment to consider what he had said was sought by the defence at the trial. The same holds good for the printed record of the attempt to make a withdrawal from the ATM at The Gap branch of the Commonwealth Bank at 11.48 pm on Wednesday 12 February. Defence counsel did not cross-examine the witness, Ms O'Dwyer from the Commonwealth Bank, who produced the record, and again no adjournment was sought. Likewise, the bank statements ex 29 relative to Ajay's Commonwealth Bank accounts did no more than summarise in printed and dated form the successive withdrawals of amounts debited to the account on Thursday 13 February 1997 of which the individual tellers gave evidence. In no sense could it be considered "new" evidence that took the appellant by surprise. The appellant's real complaint seems to be that it tended to confirm the accuracy of other evidence adduced against him at the trial. He did, however, point out that ex 29 showed a debit entry for an autobank withdrawal of $20 at QUT on 13 February, which, he said, showed that Ajay must still have been alive on Thursday. The apparent discrepancy was, however, explained in evidence by Ms. O'Dwyer, who was not cross-examined about it. She also explained how the camera shop transaction came to be recorded on 14 February, when the evidence was that it had taken place on 13 February.

16. A principal ground of appeal is that the appellant was not, in accordance with Domican v The Queen (1992) 173 CLR 555, 561, given the benefit of a sufficiently detailed warning with respect to the evidence by one or more of the bank tellers who claimed to identify the appellant as the person who made the various withdrawals on 13 February. The answer is that the identifications made by the various witnesses (which were based partly on his obviously Indian appearance and the cap he was wearing) could scarcely be considered a "significant" part of the proof of the guilt of the appellant. As has been mentioned before, in one or more instances his visual image was recorded by the Bank's security camera, of which the video tape was shown to the jury enabling them to make their own comparison; and, in addition, the appellant's fingerprints appeared on the withdrawal slip used at the Fortitude Valley branch. The keycard, a similar amount of money, and the Commonwealth Bank envelope were all found either in a locker at the Myer Centre or in the bag discovered at the unit. The remarks of counsel for the defence about the appellant's responsibility for at least some of the withdrawals have already been referred to. The directions given by the learned trial judge were in the circumstances quite sufficient for the occasion.

17. Another contentious question concerns the time at which the deaths took place and how the bodies were transported to Mt. Nebo. The Crown suggested that the appellant had used Priya's Camry car for this purpose. The keys were always left in it and there was some evidence that someone had used it on the night in question. It was seen leaving the darkened garage of unit 71 by one of the other residents of Walton Way at about 10.30 pm on Wednesday night. A search of the interior of the car revealed no identifiable indication of bloodstains. However, the police expert who inspected the vehicle said that it had at some time previously been cleaned with a chemical cleaner that would have masked the presence of blood. On the other hand, evidence was given of the discovery in the boot of the car of minute particles of thread that were said to match the thread of some of the material used to wrap the bodies. The jury were entitled to act on this as some indication that the car, to which the appellant had ready access, had in fact been used to dispose of the bodies at the place where they were found. Counsel for the appellant at the trial conceded that Ajay and Priya were probably injured and died at the unit, and a vehicle of some kind must have been used to transport their bodies to Mt Nebo. It is enough to say that it could have been the deceased woman's Camry that was used.

18. There are two matters on which the appellant placed reliance. One is that a witness Dr Lloyd said that she had on the night of 13 February 1997 heard a screech coming from the direction of unit 71 at about 11.15 pm. That was, of course, the night after the Wednesday on which the Crown claimed that the murders had been committed. Dr Lloyd was not sure whether it was a human or an animal sound. Unless she was wrong about the date, her evidence was irrelevant. On any view of it, there was no doubt that by then the crime had already been committed. Some hours before she heard that screech, Mr Tilson and others had entered unit 71, in the company of or followed by the appellant, and had found the blood on the carpet and in the garage. A Mr Ko, who was also a resident of Walton Way, gave evidence that he thought he had seen the Camry vehicle drive past his unit no 26 between 11 and 12 pm on Thursday 13 February. He thought he had seen a lady driving it, but at the trial he was unable to say whether or not it was Priya D'Souza. In cross-examination he agreed that he had previously told the police that the driver appeared to be the lady from unit 71; but he also agreed that he had had only a "fast look" at the vehicle as it went past. The jury were entitled to consider that Mr Ko was mistaken about his earlier identification of the deceased woman on that occasion. On Thursday, no one else saw her or Ajay at QUT, where she and he were expected to be. Mr Tilson made some 10 or more calls to her on her mobile telephone on Thursday 13 February; but received no response. The scientific evidence, based on the state of the bodies as they were found at Mt Nebo strongly suggests that, at least by 11 am or midday on Thursday, the two were already dead.

1. On appeal the appellant complained about the admission in evidence of video recorded interviews conducted by the police on 13 and 14 February 1997. The learned trial judge conducted a lengthy voir dire, at the conclusion of which he excluded the records of the last two of the five interviews in which the appellant had taken part. His Honour did so on the ground that he was not satisfied that they were voluntary. Conversely, however, he admitted the other three because he was satisfied that at that stage the police questioning had been limited to seeking information which the appellant had provided quite voluntarily. He held that there was no discretionary basis for excluding that evidence; and, in fact, when scrutinised, the three records of interview that were admitted in evidence are seen to contain little that was capable of being used to the detriment of the appellant except possibly some evidence of lies on his part. There is no basis for apprehending that the trial judge was wrong in admitting them or that their admission produced a miscarriage of justice at the trial of the appellant. The prosecution case relied for its strength very little, if at all, on admissions to the police as distinct from independent evidence from other sources.

2. The Crown case against the accused was, as has already been noticed, circumstantial but strong. The appellant made extensive criticisms of the entomological method used to arrive at the time of death. In the course of his submissions on appeal he suggested that the rational explanation of the evidence was that the two victims had been killed by an intruder or intruders probably during the afternoon of Thursday 13 February. In practical terms, there are only three possibilities. The first is that they were killed at some time on Wednesday night or early Thursday morning. This hypothesis, which was advanced by the Crown at the trial, would necessarily have involved the appellant in the killings because he was at the unit throughout that night. The second and third possibilities are that the killings took place at the unit during the daylight on the morning, or in the afternoon, of Thursday 13 February. At both times, the appellant had an alibi. In the morning he was engaged in driving round from one branch of the Bank to another making withdrawals from Ajay's account before returning to the city shortly after midday to use Ajay's visa card at the Rainer's camera shop. In the afternoon, he was at QUT. For this purpose the hypothesis is that an unknown and unseen intruder or intruders entered unit 71 and silently killed both victims either in the morning or the afternoon of Thursday 13 February.

3. What makes both of these hypotheses inherently improbable is that the appellant must, before then, have succeeded in stealing the keycard and visa card which were used by him on Thursday morning. It would be an extraordinary coincidence if, having had their cards stolen and used to defraud them on Thursday morning, someone should, quite independently, have chosen to enter their unit and kill both of them on the morning or afternoon of that very day. Moreover, it fails to explain the presence of articles of their property including the Commonwealth Bank keycard and the visa card, some of them stained with their blood and some of which bore the appellant's fingerprints, in the lockers at the Myer Centre to which the appellant had the keys. And it is not at all easy to know why a complete stranger who intruded into the unit would have bothered to try to clean up the blood stains that were left there.

4. It was suggested both at trial and on appeal that anyone could have given him the keys to the lockers. Why then were articles of the appellant's own property, including the hunting arrows in the packet with his fingerprints on it, found in some of those lockers? On this hypothesis, the only rational conclusion is that the appellant was a joint participant with or accomplice of the murderer or murderers. There are, indeed, in some of what was said by or on his behalf, faint suggestions at times that some other person or persons may have been involved with him in some of the acts done; for example, in the business of making withdrawals from the Bank account on the Thursday morning; or perhaps in other, and more dreadful acts, such as moving the bodies to Mt Nebo. If so, the appellant would be criminally responsible for their actions under s.7(1) of the Criminal Code. But, on the evidence at trial, this is nothing more than speculation. What seems completely absurd is to suggest that there was no connection between the murders and the stealing and use of the bank and credit cards on Thursday morning. It defies credence to suggest that the appellant was involved only in one of these activities; but that, as chance would have it, on the very same day some other unknown intruder was independently responsible for the deaths of the victims.

5. It was, in the end, a matter for the jury to determine whether the evidence adduced by the Crown at trial pointed unequivocally to the appellant as the murderer. The evidence was such as to support a conclusion to that effect, and that there was no other hypothesis consistent with innocence on his part. It was the conclusion that the jury arrived at in finding the appellant guilty as charged. The verdicts cannot be considered to be unreasonable or unsafe.

6. The appeal against conviction should be dismissed.

   REASONS FOR JUDGMENT - MUIR J

   Judgment delivered 9 April 1999

7. I agree with McPherson JA that the appeal against conviction should be dismissed for the reasons given by him.