R v Williams

Case [2017] SASCFC 65

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v WILLIAMS

[2017] SASCFC 65

Judgment of The Court of Criminal Appeal

(The Honourable Justice Peek, The Honourable Justice Blue and The Honourable Justice Lovell)

9 June 2017

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - FRESH EVIDENCE - GENERAL PRINCIPLES

CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - NOTICES OF APPEAL - TIME FOR APPEAL AND EXTENSION THEREOF

Application for extension of time in which to appeal and appeal against conviction for murder.

The applicant and a co-accused were convicted by jury of murder in December 2000. The deceased was bashed to death with a hammer and a camshaft. Both co-accused gave evidence and relied on self-defence. The jury convicted both of murder.

The evidence of Ms A, the only eyewitness to the incident, was central to the prosecution case. It was largely in opposition to the evidence given by the applicant and his co-accused, and it received support from the evidence of other witnesses to subsequent events.

The applicant seeks to adduce fresh evidence on appeal. It is claimed that ignorance of the subject matter of the fresh evidence deprived the applicant of the opportunity of a fair trial.

Ms A was diagnosed as suffering a Post-Traumatic Stress Disorder (“PTSD”) as a result of witnessing the events. This information was not available at trial. The appellant submits that given this disorder, the witness’s memory of the events was or may have been unreliable, and if cross examined on the disorder the jury may have taken a different approach to her reliability.

Held per Lovell J (Peek and Blue JJ agreeing) (refusing application for extension of time and dismissing the appeal):

1.  The only evidence led from the expert witness regarding the development and effect of the PTSD was general evidence that a witness to a traumatic event may, but not necessarily will, develop a PTSD – and this may, but not necessarily will, affect that person’s memory of certain events (at [95]-[97], [115]-[122]).

2.  The expert witnesses did not express an opinion whether Ms A would have developed a PTSD as a result of events according to the applicant's version of the facts (as opposed to Ms A’s version of events) or the possibility that any such PTSD would have affected her memory of the events in the manner required to be consistent with the applicant's version of the events (at [115]-[130] and [148]-[150]).

3.  The evidence as to suggestibility arising from police questions asked of Ms A is so general as to lack utility on the application (at [163]).

4.  There is no basis to receive Mr Mohi's statement, which was available to the defence at trial, as fresh evidence (at [168]-[169]).

5.  In the context of the evidence at trial as a whole, the applicant has not established that there is a significant possibility that the fresh evidence would or may have led to a reasonable doubt being entertained…

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R v Williams [2017] SASCFC 65
Case
[2017] SASCFC 65
Decision Date

CaseChat Overview and Summary

The applicant, R v Williams, appealed against his conviction. The appeal concerned the admissibility of fresh evidence and the extension of time for lodging an appeal, which was significantly out of time. The case was heard by Peek, Blue and Lovell JJ.

The primary legal issues before the court were whether certain evidence, referred to as the "Mohi evidence," constituted fresh evidence that could warrant a new trial, and whether the applicant should be granted an extension of time to pursue his appeal, given the extraordinary delay. The court was required to assess the significance of this alleged fresh evidence and determine if its introduction would have created a reasonable doubt in the minds of the jury, leading to a different verdict.

The court found that the "Mohi evidence" was not fresh evidence, as it was available to the applicant at the time of the original trial. Consequently, the applicant had not established that there was a significant possibility that the jury would have been left with a doubt and acquitted him had this evidence been presented. Given this finding, the court determined that the grounds of appeal had no prospects of success.

The application for an extension of time was refused and the appeal was dismissed. The court noted that the appeal was approximately 14 and a half years out of time, and the material provided did not satisfactorily explain this extraordinary delay. As the grounds of appeal were found to be without merit, the applicant conceded that there was no utility in granting an extension of time.

Orders

Orders of the court

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Background

Background to the litigation

A single Judge refused permission to appeal on all grounds except grounds 1 to 3, granted permission to appeal on those three grounds and referred the question of extension of time within which to appeal to the Full Court. Background As mentioned Mr Hersbach appealed against his conviction. Debelle J (with whom Williams and Bleby JJ agreed) dismissed the appeal.[2] During the course of his judgment Debelle J summarised the evidence in the case. This Court is not bound by any conclusion as to the facts summarised in R v Hersbach and must reach its own view of the facts. However no party took issue with the summary of the evidence and I adopt it as it provides a useful overview. Debelle J stated:[3]…The prosecution case was that McCormack was an aggressive person who had had a fight with [Mr Hersbach] over a debt and had, on the night of 28 January, fired shots at Hersbach’s house. The prosecution also noted that, on 29 January, the house occupied by [the applicant] had been broken into and a tape from a tape recording machine and some Serapax tablets stolen from it. It alleged that [the applicant] believed that McCormack was the person who had broken into the house. On the nights of 29 and 30 January 1999, McCormack was with a woman called [Ms A]. The prosecution case was essentially based on the evidence of [Ms A] which was to the following effect. At about 1.30 on the morning of 30 January 1999 McCormack had consumed about seven tablets of the drug Serapax. As a result of this unusually large dose, McCormack had become comatose. He was placed in [Ms A’s] car. At about 2.30 that morning [Ms A] was driving around the southern suburbs seeking to find a place where she could leave McCormack. She eventually stopped in the driveway of [the applicant’s] house in Morphett Vale. McCormack was in the front seat in a semi‑conscious state. [Ms A] went inside [the applicant’s] house and told him McCormack was in her car, that he had taken a number of Serapax tablets, and that she was looking for somewhere to leave him. According to [Ms A], [the applicant] then told her that his house had been broken into the previous day and that all that had been taken were Serapax tablets and a tape from a tape recording machine. Having heard what [the applicant] had said, [Ms A] decided to take McCormack with her. She told [the applicant] of her intention. [The applicant] then told her to stay. [The applicant] then made a telephone call. Over a period of time [Ms A] constantly repeated that she wanted to leave and to take McCormack with her. [The applicant] refused to allow her to leave. A short time after the telephone call, [Mr Hersbach] arrived. He and [the applicant] then had a conversation. [Ms A] repeated that she wanted to leave and to take McCormack with her. They both refused to allow her to do so. It was [Ms A’s] evidence that, at about this time, she noticed that her car had been moved further up the driveway of [the applicant’s] house. She had the keys of her car in her possession. It was the prosecution case the car had been pushed down the drive by a man named Mohi and [Mr Hersbach] so that it was behind high gates to the driveway. By this time it was daylight. [Ms A] said that she looked outside and saw [the applicant] and [Mr Hersbach] standing by the open front passenger door of the car. One was holding a hammer. The other was holding a metal bar about 60 centimetres long. There was evidence that it was part of a camshaft. I will refer to it as “the camshaft”. [Ms A] saw one of them striking a blow with the hammer aimed at McCormack’s head. She looked away. She heard a splattering sound. She looked back at her car and saw both accused swinging the hammer and the camshaft through the car door aimed at McCormack. She became hysterical, dry retched and moved away from the window. After a short time, she returned to the window and saw McCormack was on the ground between the car and the fence. Her car was between her and McCormack. She could only see McCormack’s legs extending beyond the rear of her car. She saw both [the applicant] and [Mr Hersbach] swing the hammer and the camshaft towards the region of McCormack’s chest and head. She said that these were powerful blows but she could not see whether the blows were striking McCormack. She did, however, see McCormack’s legs twitching and saw a lot of blood by his feet. She also heard sounds like moans. Another person then tried to pull [Ms A] away from the window. However, she was able to return to the window. She saw McCormack at the back of her car. She could not then recognise him. She saw [the applicant] hit a powerful blow to McCormack’s chest but his body did not react. Both [the applicant] and [Mr Hersbach] continued to hit McCormack. She saw that by this time a Ford motor car had reversed up to the boot of her car. She saw [Mr Hersbach] throw something over McCormack’s head and then saw [the applicant] and [Mr Hersbach] lift McCormack’s body into the boot of the Ford. She then moved away from the window. She heard the sound of water being sprayed outside in the driveway for a period of time. Both [the applicant] and [Mr Hersbach] returned inside the house. [The applicant] then threatened her and other persons present saying that he would kill them if they said anything to anyone. A short time after both [the applicant] and [Mr Hersbach] left. [Ms A] said that she then went to her car which had again been shifted. She saw that it had been hosed on the outside and that it was wet inside. The map pocket in the front passenger door was full of water. The passenger seat and floor were wet. A woollen seat cover on the front passenger seat had a brown stain on it. She left the house. Later on 30 January 1999 she received a telephone call from [the applicant] who told her a story to tell others who might ask about the whereabouts of McCormack. Another prosecution witness was Mr S J Gillen. At about 7.30 on the morning of 30 January 1999 he received a telephone call from [the applicant] asking him to go to Myponga to help him start [Mr Hersbach’s] car. Gillen agreed to do so. He ultimately found [the applicant] and [Mr Hersbach] somewhere between Myponga and Sellicks Beach. [The applicant] told him that the car had a flat battery. Gillen’s evidence was that [the applicant] had told him he had struck McCormack with a camshaft saying McCormack had broken into his house. Gillen said that he was too scared to ask where McCormack was. He helped them start the car and [the applicant] and [Mr Hersbach] drove away saying that they were going to [Mr Hersbach’s] house. As the car drove away, Gillen saw something dripping from the car. He put his finger to it and smelt it and thought it was blood. Gillen then went to [Mr Hersbach’s] house arriving before [the applicant] and [Mr Hersbach]. He spoke to people there and decided to leave. However, his car would not start. [The applicant] and [Mr Hersbach] then arrived and [Mr Hersbach] agreed to drive Gillen to Gillen’s house. While being drive there Gillen asked [Mr Hersbach] what he was going to do with McCormack. [The applicant] said that they had McCormack in the boot. Gillen asked what had happened. Gillen’s evidence was that [the applicant] said that a fight had broken out and that he had broken a camshaft on McCormack. Gillen asked if there were witnesses. [The applicant] replied “That’s all right, they’re cool”. By this time the car had passed the turn to Gillen’s house. They drove north ultimately reaching Balaklava. They drove around the area and finally turned up a side track into some scrub. [The applicant] and [Mr Hersbach] buried McCormack. They then returned to Adelaide. On 20 May Gillen approached the police. McCormack’s body was ultimately found on 27 June 1999. By the time the body was found little more than a skeleton remained. The post-mortem examination was conducted by Dr Byard. It disclosed that there were multiple fractures on the mid-facial skeleton involving the upper part of jaw bone, the palate, the cheekbone, and the nasal bones. There was extensive damage across the middle of the skull and the mid-facial skeleton was completely separated from the rest of the skull. In addition, there were fractures of the anterior cranial bones and multiple fractures on the back of the skull. According to Dr Byard the cause of death was haemorrhage from the facial injuries or brain trauma or a combination of both. Another possible cause was inhalation of blood while McCormack was unconscious. His evidence was that considerable force would have been required to inflict the facial injuries. It was not possible to say how many blows had caused the injuries. The injuries to both the face and skull were consistent with blows from a hammer or metal bar. The case for the two accused was essentially the same. They both knew McCormack. [Mr Hersbach] had had an argument with him about a week before the events of 30 January over money due by McCormack to [Mr Hersbach]. The argument had ended in a fight. [Mr Hersbach] believed that McCormack had later fired shots at his house. [The applicant] said that his house had been broken into on 29 January. Although others had suggested McCormack was the culprit, he did not accept that. He also denied evidence given by others that tablets of Serapax had been taken from his house on that occasion. [Mr Hersbach] said that he had arrived at [the applicant’s] house at about 5.30 on the morning of 30 January. He said he was visiting [the applicant] because it was [the applicant’s] birthday. Both [Mr Hersbach] and [the applicant] denied that [the applicant] had telephoned [Mr Hersbach]. According to both accused, it was decided to remove McCormack from the car and to leave him on the porch of [the applicant’s] house. Their evidence was that the man called Mohi was also present. The evidence of both accused was to the effect that Mohi had woken McCormack who was still sleeping in the car. On being awoken, McCormack had threatened to kill the accused and then got out of the car. McCormack then produced a semi-automatic pistol. [Mr Hersbach] picked up a hammer. McCormack rushed at him. McCormack and [Mr Hersbach] struggled and wrestled with one another. [Mr Hersbach] hit McCormack “a couple of times” on the side of the head to defend himself. [The applicant] grabbed a wheel brace and struck McCormack across the shoulder. According to both accused, Mohi then hit McCormack in about the middle of the front of the skull with a metal bar knocking him to the ground. Mohi then struck McCormack a second time across the bridge of his nose. [The applicant] said that the weapon used was a camshaft. Mohi looked at McCormack and informed the others that he was dead. [The applicant] and [Mr Hersbach] then disposed of the body. According to [Mr Hersbach], Mohi hosed down the area. There are obvious discrepancies between this evidence and the evidence of [Ms A]. [2] R v Hersbach [2001] SASC 192. [3] R v Hersbach [2001] SASC 192 [3]-[10]. The respondent agrees with summary of the issues in the trial, the significance of the evidence of Ms A and the approach the jury must have taken to that evidence. Grounds of Appeal

Evidence

Evidence Before The Court

During the course of the police investigation into the events surrounding the incident, Ms A was interviewed on five occasions; twice on 5 February 1999 and again on 9, 13 and 17 February 1999. The first three of these interviews were recorded on video. Between the first and second recorded interviews, the police officers met with Ms A in a park and spoke to her. No notes were made of that conversation. During the first three interviews Ms A denied any knowledge of the death of the deceased. The last two police interviews were lengthy and neither was recorded. Ms A admitted knowledge of the death of the deceased and during the course of these two interviews implicated the applicant and Mr Hersbach. The last two interviews led to her signed declaration of 17 February 1999. On that date Ms A was given an immunity from prosecution by the Director of Public Prosecutions.Ms A’s Evidence It is important to the resolution of this appeal that I set out, in some detail, Ms A’s evidence. At the time of trial Ms A was aged 20 years and worked as a hairdresser. Prior to the murder she had known the applicant for approximately one to two years. On 29 January 1999 a friend named Watts requested that she do him a favour and “pick up” Phil McCormack. Ms A picked Mr McCormack up from Morphett Vale. Ms A gave extensive evidence of her movements after she picked up Mr McCormack. This included seeing Mr McCormack with a gun and him firing this weapon in the direction of another man. It is also likely that Mr McCormack was organising drug related activities. Ms A said that she occasionally took “speed” and she took some on this day. Other than keeping her awake she did not think it had much effect on her this day. Ms A said she did not think it affected her memory. She did not have any amphetamine at the applicant’s house. At some stage Ms A and Mr McCormack went to “Gavin’s place”. Mr McCormack was in Gavin’s house for approximately 20 minutes and Ms A remained in the car. After about 20 minutes they both came towards her car and they were having an argument. Gavin was saying that he would not let Mr McCormack drive a car. It was at that stage that Gavin told Ms A that Mr McCormack had been taking Serepax and was in “no condition to drive”. Mr McCormack looked “drunk” and was “sort of swaying, blurting his words out”. Over the course of the evening his condition became worse. While a passenger in Ms A’s car he slumped forward and over the gearstick while Ms A was driving. She was worried about him and contacted friends seeking help but received little assistance other than from a friend called Amy. Eventually Ms A, and Amy, drove to the applicant’s house and parked her car in the driveway behind another vehicle. The applicant and Amy went inside the house and left Mr McCormack in Ms A’s car. There were a number of other visitors to the house including Mr Gillen. Ms A told the applicant that Mr McCormack was in her car and that he had taken Serepax. The applicant responded by telling her that his Serepax had been stolen when someone had broken into his house. A tape from his tape recorder had also been stolen.

Decision

Reasons for decision

PEEK J
In any event the Mohi evidence is not “fresh” evidence. It was available to be called by the applicant at trial.Conclusion For the reasons discussed above the applicant has not established that there is a significant possibility that had the jury received the fresh evidence, they would have been left with a doubt and acquitted the applicant. The applicant does not have any prospects of success in establishing any of the grounds of appeal.Extension of time An appeal is some 14 and a half years out of time. The applicant relies upon the following evidence for an extension of time:1Affidavit of Brett Stuart Williams, applicant, sworn, 9 December 2014;2Affidavit of Brett Stuart Williams, applicant, sworn, 9 December 2014; and3Evidence of Brett Stuart Williams, applicant, given in court before Vanstone J on 29 April 2016. There are serious problems for the applicant in establishing the basis for an extension of time. Even allowing for the difficulties faced by the applicant in collating material while in prison, the material produced arguably does not satisfactorily explain the extraordinary delay in bringing this particular application. However it is not necessary to make a final determination based on the material produced. I have already found that the grounds of appeal have no prospects of success. The applicant conceded that there is no utility in granting an extension of time in respect of a meritless appeal. In those circumstances the application for an extension of time in which to appeal should be refused and the appeal dismissed.

Ratio Decidendi

Legal Principle Established

Established by: PEEK J

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