R v Van Wirdum

[1994] QCA 476

IN THE COURT OF APPEAL [1994] QCA 476

SUPREME COURT OF QUEENSLAND

C.A. No. 357 of 1994

Brisbane

[R. v. Van Wirdum]

T H E Q U E E N
v.
CARL ANTHONY VAN WIRDUM

(Appellant)

Davies J.A. Pincus J.A. Derrington J.

Judgment delivered 09/11/94
Joint reasons for judgment of Davies J.A. and Derrington J.;

Pincus J.A. separately, concurring as to the order to be made.

APPEAL AGAINST CONVICTION DISMISSED.

CATCHWORDS:CRIMINAL LAW - CONVICTION - directions to jury - appellant convicted of murder of de facto wife - whether judge correctly directed jury as to use of lies as evidence of guilt - whether jury left with impression that appellant had committed other offences of violence

CRIMINAL LAW - EVIDENCE - identification - whether trial judge adequately warned jury of danger of convicting upon identification evidence which represented a significant part of proof of guilt where its reliability was disputed

CRIMINAL LAW - PRACTICE - whether trial judge was required to direct jury of danger of relying upon an unrecorded and uncorroborated statement against interest made to police on an occasion before the offence was committed

Counsel:	Mr P. Alcorn for the appellant Mr D. Meredith for the respondent
Solicitors:	Legal Aid Office for the appellant Director of Prosecutions for the respondent

Hearing date: 21 October 1994

JOINT REASONS FOR JUDGMENT - DAVIES J.A. AND DERRINGTON J.

Judgment delivered 09/11/94

On 5 August 1994 the appellant was convicted of the murder of his de facto wife at Ayr on or about 3 June 1993. He has appealed against that conviction on eight grounds not all of which were pursued before this Court.

The case against the appellant was a strong circumstantial one.
The deceased died in a flat which she shared with the appellant
at a time when, on the version of events which the appellant
ultimately gave to the police and in evidence, the deceased and
the appellant were its only occupants. He said that they had an
argument during the course of which he pushed her in the stomach
and she fell against a lounge settee where she remained until
removed by him. According to him he was very drunk at the time
which was late afternoon of 3 June. He said that he had very
little recollection after that but admitted to recalling that,
after dark, he wrapped her body in an old curtain and sheet,
placed it in his car, drove it to a remote location and there

buried the body. Before giving that version he had told a

number of people that the deceased had left him.

Notwithstanding the appellant's assertion that he was very drunk at the time he pushed the deceased - so drunk that his recollection of events later that evening was, at best, episodic - he was seen and spoken to at a hotel that evening by two women, both of whom thought him sober enough to converse rationally. And notwithstanding his description of his push and the deceased's fall, there was medical evidence of fracture to her voice box consistent with the application of force to the front of her neck.

The first ground of appeal was that the learned trial judge erred in directing the jury as to the use which could be made of lies told by the appellant as being evidence of guilt of murder when those lies were as equally consistent with guilt of the offence of murder, manslaughter or another offence. The point was that the lies which the appellant told, to the effect that the deceased had left him, were equally consistent with apprehension on his part that he might be convicted of murder, manslaughter or an offence relating to the disposal of her body.

That is true. But it seems to us that the learned trial judge directed the jury to that effect or at least made clear to them that this evidence was not consistent only with his guilt of the offence of murder.

The second ground of appeal was that the learned trial judge erred in failing to discharge the jury after a witness Hodson said that the appellant had told her he had committed the offence of robbery. Before the evidence was given the appellant's counsel had elicited evidence of his previous convictions. They did not include one for robbery. The reason for eliciting this evidence apparently was to show that the appellant had no history of committing violent offences. The point of this ground was that, robbery being an offence involving violence, the jury would be left with the impression that the appellant was a person prone to commit offences of violence when there was no substantial evidence that he had committed such an offence. There are two answers to this. The first is that there is no reason to believe that, unlike lawyers, the members of the jury would have known that robbery was an offence involving violence rather than merely some form of stealing. More importantly it was later clearly proved that this was a reference to an offence of breaking, entering and stealing which was proved to have occurred. The learned trial judge nevertheless gave the jury a warning that they should disregard any mention of a robbery. There is therefore no substance in this ground.

The third ground, which complained about the learned trial judge's direction on the question of intoxication, was not pursued.

Grounds 4 and 5 criticised the learned trial judge's direction to the jury on the question of identification of the appellant at the hotel on the afternoon and night of the offence. Two witnesses identified him there, a Mrs McKeller, one of the owners of the hotel, and a Ms Howie, a bar attendant at the hotel. Both knew the appellant by sight from the fact that he had been at the hotel on a number of occasions before. Each served him on the night in question and had a short conversation with him in which he said that his wife had just left him. Each was able to say that he was sober enough to engage in rational conversation.

Although the appellant's counsel said that he did not complain about the judge's summing-up with respect to identification this ground of appeal plainly does. It is therefore necessary to consider whether the learned trial judge's direction to the jury with respect to the evidence of these two witnesses was adequate.

This is not a case, like many including Domican v. The Queen (1992) 173 C.L.R. 555, in which the question is whether the accused was satisfactorily identified as the offender. There was no real doubt in the present case that, if the offence of murder was committed, the appellant was the offender. The relevance of his identification here was to discredit his evidence that on the afternoon in question he was very drunk; because this evidence places him at the hotel on that evening shortly after the time when the deceased must have been struck (as to which he claimed to have no recollection) and proves him to have been in an articulate state of sobriety. Nevertheless we think that the principle in Dominican applies to this case. In the joint judgment in that case their Honours said at 561:

"Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed."

We think that here the identification evidence represented a significant part of the proof of guilt and its reliability was disputed.

Their Honours then went on to state what the warning should include in terms which are now familiar. In particular they said that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence.

Here, as we have said, both witnesses knew the appellant by sight although not by name. It was therefore necessary, in order for them to identify for the police the appellant as the person who was present at the hotel that afternoon and night, to do so by means of photographs shown to them. Each was shown a board with 12 photographs on and each identified the appellant as the person they had served that afternoon and night.

There was some evidence that each had previously seen a single photograph of the appellant and had been unable to recognise the person in the photograph as the person they had served that night. However his Honour took the jury through this evidence in some detail and invited them to consider whether the failure to recognise the accused from that photograph affected the reliability of their identification evidence. He also pointed to minor discrepancies between the evidence of each and told the jury that they should bear those matters in mind when they came to evaluate the evidence of each. By these means his Honour, in our view, complied with the requirement to warn the jury of inadequacies in the identification evidence.

Grounds 6 and 7 were not pursued. The only other ground pursued was ground 8 which contended that the learned trial judge erred in failing to redirect the jury of the dangers in relying upon an unrecorded uncorroborated statement against interest said to have been made by the appellant to police officers on 8 April 1993 which was challenged in cross-examination and denied in evidence by the appellant.

On that date police were called to intervene in a domestic dispute between the appellant and the deceased. During the course of a conversation with the police, it was said by a police officer, the appellant said that he was afraid one day he might go too far and kill. Predating as it did the alleged offence this was not in any sense a confession.

The rule of practice stated in McKinney (1991) 171 C.L.R. 468 was said to be one applicable whenever police evidence of a confessional statement allegedly made by an accused while in police custody is disputed and its making is not reliably corroborated: at 475; Black v. The Queen (1994) 68 A.L.J.R. 91 at 96. The rationale for this rule is the special position of vulnerability of an accused to fabrication of evidence when involuntarily held in police custody. Of course that is not this case. The statement here was not confessional and it was not made by the appellant whilst in police custody.

It is highly desirable that police officers generally record conversations which they have with persons who may have been involved in the commission of an offence. But whether the failure to reliably corroborate evidence of a conversation with a person later accused requires a warning in circumstances other than those envisaged by the High Court in McKinney will depend on a number of factors including the reasonableness of a requirement, in the circumstances of the case, that the police both record and retain the recording of the conversation; and the opportunity which, in the circumstances in which the conversation took place, the accused had to corroborate his denial.

In the present case it appears that the police were called to the appellant's flat to investigate the domestic incident on that day but in the end no charge was preferred against the appellant. Even if, as we think it generally should, a recording had been made of this conversation, it is likely that, no charge having been preferred, it would have been erased. In these circumstances, and bearing in mind that the statement, if made, was not consistent only with a conclusion that the appellant was guilty of murder, we do not think that the learned trial judge was obliged to give a warning of the kind envisaged by the High Court in McKinney. The appeal must therefore be dismissed.

REASONS FOR JUDGMENT - PINCUS J.A.
Judgment delivered 09/11/1994
I have read the joint reasons for judgment of Davies J.A.
and Derrington J. and agree that the appeal should be dismissed.
I am content to express my agreement with their Honours'
reasons as to all aspects of the case other than the complaint
that the judge should have given the jury a direction concerning

an unrecorded statement made to the police; that is ground 8.

On that point I prefer briefly to express my own reasons.

McKinney (1991) 171 C.L.R. 468 is authority that whenever police evidence of a confessional statement allegedly made by an accused while in police custody is disputed and its making is not reliably corroborated, the judge should, as a rule of practice, warn the jury of the danger of convicting on the basis of that evidence alone: Black (1993) 68 A.L.J.R. 91 at 96. Here the appellant was not in custody at the time the relevant statement was made, nor was the case one in which the Crown sought a conviction only (or substantially) on the basis of the statement allegedly made to the police. If a warning was necessary, that was so because of the broader principle that requires a warning to be given whenever it is necessary to do so in order to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case: Longman (1989) 168 C.L.R. 79 and see Faure (1993) 2 V.R. 497. The broader principle is one which has a degree of uncertainty in its application. What the judge was asked to do by counsel below was to warn the jury of the danger of acting upon the alleged statement to McDonald, "One day I might go too far and kill her", for the reason that it was not put to the appellant in an electronically recorded interview, conducted in the course of the investigation of the offence the subject of this appeal. It is desirable, particularly since McKinney, that the police electronically record conversations they have with suspects, whether interviewed at the police station or not. The relevant statement here was alleged to have been made in a private residence, during the course of the police investigation of a domestic dispute said to have resulted in an assault committed by the appellant. The victim of the assault, Ms Gow, said she did not want action taken under the Domestic Violence Act; whether or not it might have been prudent for the police to record their subsequent conversation with the appellant, the alleged perpetrator of the assault, it is hardly surprising that that was not done. Nor, in the circumstances, was it improper of the police not to have mentioned the statement as having been made, in the course of their recorded interview with the appellant after the death of Ms Gow which has led to the conviction presently in question. In my opinion the judge acted properly in declining to give such a direction as was sought by counsel; nor, on the whole, was it necessary to give a direction on the basis of the more general principle mentioned above.