Russell v Tasmania
[2016] TASCCA 23
•21 December 2016
[2016] TASCCA 23
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Russell v Tasmania [2016] TASCCA 23
PARTIES: RUSSELL, Stuart Barry
v
STATE OF TASMANIA
FILE NO: 1115/2012
DELIVERED ON: 21 December 2016
DELIVERED AT: Hobart
HEARING DATE: 9 November 2016
JUDGMENT OF: Blow CJ, Wood and Estcourt JJ
CATCHWORDS:
Criminal Law – Appeal and new trial – Verdict unreasonable or unsupportable having regard to the evidence – Appeal dismissed – Evidence not displaying inadequacy or lacking probative force – Murder – Circumstantial evidence – No reasonable hypothesis as to person other than accused inflicting fatal wound.
Smart v Tasmania [2013] TASCCA 15, referred to.
Aust Dig Criminal Law [3476]
REPRESENTATION:
Counsel:
Applicant: T Kovacic
Respondent: D G Coates SC, A Shand
Solicitors:
Respondent: Director of Public Prosecutions
Judgment Number: [2016] TASCCA 23
Number of paragraphs: 45
Serial No 23/2016
File No 1115/2012
STUART BARRY RUSSELL v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW CJ
WOOD J
ESTCOURT J
21 December 2016
Orders of the Court
Leave to appeal granted.
Appeal dismissed.
Serial No 23/2016
File No 1115/2012
STUART BARRY RUSSELL v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BLOW CJ
21 December 2016
This is an application for leave to appeal in respect of a conviction for murder. I have read the judgment of Estcourt J in draft form. I agree with him that leave to appeal should be granted, and that the appeal should be dismissed. I agree with his reasoning. The passages quoted by him from counsels' speeches at the trial, and from the summing-up of the learned trial judge, accurately reflect the evidence that was before the jury.
Only four people were present at Mr Williams' home on the night he was killed – Mr Williams, the applicant, Ms Dallas-Clarke, and Mr Smith. Uncontradicted medical evidence established that Mr Williams suffered four stab wounds, and that the fatal wound was one to the heart. No witness gave evidence of seeing the applicant stab Mr Williams. The Crown case was therefore circumstantial. "Circumstantial evidence can prove a fact beyond reasonable doubt only if all other reasonable hypotheses are excluded": Doney v The Queen (1990) 171 CLR 207 at 211. The hypotheses relied on by the applicant were (i) that Mr Smith might have inflicted the fatal wound; (ii) that, if the applicant inflicted the fatal wound, he might have inflicted it by accident; and (iii) that he might have inflicted the fatal wound in self-defence.
As to self-defence, s 46 of the Criminal Code provides that "A person is justified in using, in the defence of himself …, such force as, in the circumstances as he believes them to be, it is reasonable to use". It is necessary to consider what response on the part of the applicant would have been reasonable if he considered that he was under threat from Mr Williams. As Estcourt J has said, the evidence was that Mr Williams was older, lighter and shorter than the applicant, that he had difficulty seeing in the dark, and that the applicant knew that. The hypothesis that the applicant might have stabbed Mr Williams in the heart in self-defence, using no more force than was reasonable in the circumstances as he believed them to be, is a ludicrous one.
As Estcourt J has said, it was not suggested to the jury that the fatal wound might have been inflicted accidentally. There were a number of pieces of evidence that tended to rule out a hypothesis of accidental stabbing. There was evidence from the State Pathologist, Dr Ritchey, that, although there was only one entry wound in the vicinity of the heart, there was internal damage that tended to indicate that, after the heart had been penetrated, the knife was partly withdrawn and then inserted a second time. There was no evidence of the applicant telling his companions or the police that he had inflicted any wound accidentally. The applicant did not try to get help for Mr Williams. When spoken to by the police, he pretended that he had not been present. There is no reason for this Court to think that the jury ought to have had a reasonable doubt as to the fatal stabbing having been accidental.
The applicant's principal contention before this Court concerned the hypothesis that the fatal wound had been inflicted by somebody else. Mr Smith was the only suggested candidate. It was put to him at the trial that he had stabbed Mr Williams in the chest. He denied that. There was no evidence of Mr Smith ever being seen with a knife in his hand. A knife was found by the police. It had blood on the blade. That blood matched the DNA profile of Mr Williams. Other DNA profiles were detected on the knife. Mr Smith and Ms Dallas-Clarke were excluded as being contributors to those DNA profiles, but the applicant was not. There was no evidence of anyone other than the applicant holding a knife. There was no evidence that Mr Smith had ever been alone with Mr Williams or his body. There was no evidence that Mr Williams physically fought with anyone other than the applicant.
I do not think I need to catalogue all of the evidence that tended to incriminate the applicant, much of which is referred to in the reasons of Estcourt J. Having regard to the totality of the evidence, particularly that of Ms Dallas-Clarke and Mr Smith, it was open to the jury to be satisfied beyond reasonable doubt that only the applicant could have killed Mr Williams, and that he must have done so in circumstances that made him guilty of the crime of murder. If the applicant killed Mr Williams by stabbing him to the heart, that would constitute the crime of murder if he intended to cause death, or if he intended to cause bodily harm which he knew to be likely to cause death in the circumstances: the Criminal Code, s 157(1)(a), (b).
The ultimate question for this Court is whether the jury, acting reasonably, should have entertained a reasonable doubt: Chidiac v The Queen (1991) 171 CLR 432 at 443. The jury had the advantage of seeing and hearing the witnesses give evidence. In my view the Crown case was a very strong circumstantial case. In the circumstances, it cannot be said that the jury should on any basis have had a reasonable doubt as to the guilt of the applicant.
File No 1115/2012
STUART BARRY RUSSELL v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
WOOD J
21 December 2016
I have read the reasons for judgment of the Chief Justice and Estcourt J and I agree with their Honours' reasons. A conclusion that the applicant delivered the fatal stab wound suffered by Mr Williams was clearly and overwhelmingly supported by the evidence.
The Crown case was that Mr Williams was fatally wounded by the applicant during a physical altercation which occurred in the presence of Ms Dallas-Clarke. While she observed the altercation between the applicant and Mr Williams, she did not see any of the stab wounds inflicted or even a knife in the applicant's hand until it had come to an end. Mr Smith was not present for the altercation, but walked into the house immediately afterwards and made some observations of the scene, saw Mr Williams on the floor and a knife in the applicant's hand, and gave evidence of the applicant's subsequent conduct.
There was a very strong case against the applicant that he delivered the fatal wound during the altercation and was responsible for Mr Williams' death. I consider it worthwhile briefly mentioning the evidence that was unchallenged by the defence as it illustrates the strength of the case against the applicant in this regard: there had been a disagreement between the applicant and Mr Williams earlier in the day; the applicant had been drinking alcohol during the afternoon; the confrontation between the applicant and Mr Williams commenced as soon as the applicant entered the house; there was yelling and screaming; the fight that ensued was seen to involve pushing, shoving and wrestling, and in consequence Mr Williams ended up on the floor, seemingly unconscious; he was making sounds like he was snoring or struggling to breathe, consistent with the sound a person dying from a punctured heart would make; and the applicant had a knife in his hand. Further, a bloodied knife was located by police outside; the blood on the knife matched the DNA profile of Mr Williams; Mr Smith was excluded as a contributor to the DNA profile, whilst the applicant was not excluded. The knife was the same in appearance as other knives (black-handled, serrated steak knives) that were in a knife block outside in a wheelie bin and which the applicant would have passed before entering the house. The uncontradicted evidence of the State Pathologist, Dr Ritchey, was that the applicant sustained four stab wounds with a fatal wound to his heart. Dr Ritchey's evidence was that the fatal wound would have led to pericardial tamponade, a type of internal bleeding. He would expect death to occur within minutes of such an injury.
The obvious inference from the unchallenged evidence was that the applicant fatally wounded Mr Williams during that altercation. There was other contentious evidence of the applicant's guilt in the evidence given by Ms Dallas-Clarke and prior inconsistent statements she had made, and evidence such as that of Mr Smith that he saw the applicant kicking Mr Williams when he was on the floor, and that after the altercation he saw the applicant deposit a black-handled serrated knife on the ground outside in the location where the bloodied knife was found by police, and the applicant's lies told to the police. At the trial the hypothesis was advanced by the defence that after the altercation and after the applicant had left the house, leaving Mr Williams unconscious on the floor, Mr Smith, having left the house also, returned and inflicted the fatal wound. That was put to Mr Smith during cross-examination and refuted by him. The evidence was that he was uninvolved in the applicant's disagreement with Mr Williams earlier in the day and also the applicant's physical conflict with Mr Williams. The jury was entitled to accept Mr Smith's denial and to view the hypothesis as speculative, noting it was unsupported by any evidence.
Ultimately, the jury was presented with a speculative scenario that it was entitled to reject and, moreover, was presented with compelling evidence implicating the applicant, both unchallenged evidence and other contentious evidence of his guilt, that the jury could, acting reasonably, have accepted. The jury was directed by the learned trial judge that to find the applicant guilty "you must be satisfied beyond reasonable doubt that he inflicted the heart wound". Upon the whole of the evidence, it was entirely open to the jury to conclude that it was so satisfied beyond reasonable doubt. I agree with the Chief Justice and Estcourt J that it is not the case that the jury ought to have had a reasonable doubt as to the guilt of the applicant.
I agree also that leave to appeal should be granted, but the appeal should be dismissed.
File No 1115/2012
STUART BARRY RUSSELL v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
ESTCOURT J
21 December 2016
The appeal
On 6 December 2012 the applicant, Stuart Barry Russell, was found guilty by a jury of one count of murder and one count of attempted arson.
On 7 December the applicant was sentenced by the learned trial judge, Evans J, on the basis of the following facts that his Honour found as consistent with the verdict of the jury:
"On 16 December 2011, the defendant, then aged 40, and his female partner aged 18, having been evicted from their accommodation at Eggs and Bacon Bay, moved to a caravan on the nearby property of Brett Williams. Mr Williams also offered accommodation to a young male friend of the defendant who helped with the move.
That night there was a confrontation between the defendant and Mr Williams. The evidence on the trial does not establish the reason for the confrontation, and no light was thrown on its cause during the sentencing hearing as the defendant instructed his counsel not to put any matters in mitigation because he did not want to prolong the matter any further.
The confrontation occurred immediately upon the defendant entering Mr Williams' home. Both men were intoxicated. In the course of a brief physical exchange accompanied by considerable shouting, the defendant stabbed Mr Williams four times. The fatal blow was to his heart which was wounded twice. This demonstrates that this blow involved two thrusts. Mr Williams' blood alcohol reading was .173.
When Mr Williams was on the floor dying from his wounds, neither the defendant nor his companions did anything to obtain medical assistance. Later that night, these three having discussed the merits of setting fire to the home in order to destroy evidence, the defendant's companions left. Thereupon the defendant obtained petrol, poured it over and in the vicinity of the body and ignited it. The fire damaged the body and other items in the vicinity but did not take hold."
The applicant originally sought to appeal, in effect, upon a single ground that the verdict of the jury on the charge of murder was unsafe and unsatisfactory. The ground of appeal ultimately pursued upon this hearing was an amended ground which contended that the jury should have had a reasonable doubt as to the applicant's guilt because:
"a No evidence of the cause of all wounds to Brett Williams;
b Evidence of the fight between Brett Williams and the Appellant is inconsistent with the fatal injuries suffered;
c Evidence of the possession of weapons not consistent with all injuries suffered or evidence of altercation."
To this there was added in the applicant's written outline of submissions the contention that "Another person could reasonably have committed the crime". By further amendment to the notice of appeal this contention became a discrete particular (d) of the amended notice.
The law as to the appeal
As I have observed recently in other appeals against conviction, the principles as to an appeal such as the present were restated in a joint judgment of this Court in Smart v Tasmania [2013] TASCCA 15 at [49]-[50] in the following terms:
"49 With that in mind, the question for this Court is whether the verdict of the jury was 'unsafe and unsatisfactory'. In M v R (1994) 181 CLR 487 at 494 – 495, Mason CJ, Deane, Dawson and Toohey JJ said the following as to the role of an appellate court in relation to an appeal on the basis that a jury's verdict was unsafe and unsatisfactory:
'In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence (Chamberlain v The Queen (No 2) (1984) 153 CLR at 618 – 619; Chidiac v The Queen (1991) 171 CLR 432 at 443 – 444). In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (Chidiac v The Queen (supra) at 443, 451, 458, 461 – 462).'
50 A verdict may be set aside as unsafe or unsatisfactory even if, as a matter of law, there was evidence upon which the accused could have been convicted: Whitehorn v R (1983) 152 CLR 657 at 660, 686; Chamberlain (No 2) (above) at 532, 601, 604, 618 – 619; Morris v R (1987) 163 CLR 454 at 461, 473; Chidiac v R (above) at 442 – 443."
As will be seen, there was in the present case ample evidence upon which the applicant could have been found guilty. The question for this Court is whether it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty. Mr Kovacic, counsel for the applicant on the appeal to this Court, contends that the jury should have had a reasonable doubt.
The evidence
Both the State and the applicant relied heavily on the evidence of the applicant's young female partner, Bronte Dallas-Clarke. Her account, to the extent it remained consistent from the time she spoke to police the day following Mr Williams' death until the time she gave evidence at the trial, was that the applicant, who had come from a caravan on Mr Williams' property, where he had been drinking with his young male friend, Christopher Smith, entered Mr Williams' house where he and Ms Dallas-Clarke had been preparing dinner in the kitchen. She gave evidence that the applicant entered with a cigarette in one hand and a glass in the other, and that as soon as he entered the house Mr Williams "started" on the applicant. She said she did not see a knife until after the physical altercation that ensued. She told the jury she believed the knife that she then saw the applicant holding was the knife she had been using in the kitchen to cut up garlic. She also said that Mr Williams had come from the kitchen. There had been no evidence that the applicant ever went into the kitchen. The State's case was that the applicant had picked up the knife, on his way into the house, from a wheelie bin that contained items that he and Ms Dallas-Clarke had brought with them in order to move into the caravan. The evidence was that the knife that was found by police and said to be the murder weapon was visually identical to two of the other knives in the knife block in the wheelie bin.
The applicant's counsel at trial, Ms Baumeler, submitted in her closing address that it was a reasonable inference for the jury to draw that Mr Williams had picked up the knife and had it on him when he went to confront the applicant, and that during the incident the applicant took the knife from Mr Williams. Ms Baumeler went on:
"You heard evidence that there was a struggle, that Mr Williams is pushing Mr Russell, Mr Russell is pushing Mr Williams back, you heard evidence that Mr Williams was punching and there was yelling and screaming from all three of them. You heard evidence that Mr Williams was going for it and that he wasn't holding back and that it ends with Mr Williams and Mr Russell both going into the table and Mr Williams on the floor and if you accept Ms Dallas-Clarke's evidence this is where Mr Williams then commences to snore."
The reference to snoring was to the noise that Mr Williams made as he lay on the floor not moving after he had been stabbed by the applicant.
Ms Baumeler did not focus to any great degree on the proposition that the applicant stabbed Mr Williams in self-defence. She did allude to the concept when she said:
"And there wasn't any suggestion by the Crown that the coming at Mr Russell by Mr Williams was a recent invention, that is something that Ms Dallas-Clarke has always said in terms of how the argument actually started. And in those circumstances a person is entitled to defend themselves."
Ms Baumeler nonetheless asked the learned trial judge to include a direction as to self-defence in his memorandum to the jury. His Honour did so, saying it was out of an abundance of caution.
Counsel for the State, the then Director of Public Prosecutions, Mr Ellis SC, had submitted to the jury in his closing address:
"… never mind who started the argument that led to it, never mind who pushed who. The evidence is that the man who was older, lighter, shorter was stabbed with five stabbings by the man who was younger, heavier and unlike the man who was stabbed and is dead didn't suffer from significant eye defects. So you know, if it's got anything to do who said what first, of course Mr Russell he's at the door of the house, if he's in the slightest danger from Mr Williams, real danger, he only has to walk back out the door again. Mr Williams can't see him because it's dark. As he commented to Mr Inglis, that night-blindness will slow him down a bit."
As to the number of stab wounds, I pause to interpolate that the learned trial judge told the jury that Mr Williams suffered four exterior stab wounds, but the wound to the heart involved two thrusts which could permit one to speak of five "stabbings", as Mr Ellis put it.
The applicant's defence was more focussed on the failure of the State to have proved the applicant's guilt beyond reasonable doubt. The learned trial judge said in his charge to the jury:
"Now, this is – I don't want to be over confident in putting this to you, but my impression is that the Defence case is really run at three levels. The Defence is firstly, 'You can't be satisfied beyond reasonable doubt that I stabbed at all.' That's one line. The second line is, 'Well, if you are satisfied that I did some stabbing, you can't be satisfied beyond reasonable doubt that I inflicted the heart wound.' And thirdly, 'Well, if you are satisfied beyond reasonable doubt that I inflicted the heart wound, then I was acting in self defence,' so they're what I understand to be the three layers of the Defence."
Chief among those three lines of defence was the suggestion by Ms Baumeler that Mr Smith inflicted the fatal heart wounds. She said to the jury:
"Now if you accept what you've heard it's literally a matter that would have been over in moments and I'd ask you to consider whether there really is room in that time frame for the five wounds to have been inflicted or is it more likely that it's only the wounds to the abdomen that are inflicted at that stage and that the one to the chest is inflicted later or the two to the chest? And you heard from Doctor Ritchey yesterday and today that he really can't say in terms of the scenario how it could have happened or what came first and he can't exclude that order of events and he also can't exclude that there might have been a gap between some of the injuries being inflicted and the others.
Now it's not an accused person's role to provide a motive in a trial for why they might do something. And in terms of Mr Smith I certainly agree with my friend, there is no motive that has been suggested as to why he might stab Mr Williams. It certainly was put to him that he did stab Mr Williams and as I said you certainly have some evidence that Mr Smith does act impulsively. And as I also said you have the evidence of Ms Dillon if you accept her evidence as happening at about that time there is room for Mr Russell and Ms Dallas-Clarke to be back at Flakemore Road at a time when Mr Smith isn't there."
Ms Baumeler then went on to suggest to the jury that some of Mr Smith's evidence was unbelievable. In particular, she referred to Mr Smith's evidence that when he entered the house the applicant was holding a hammer and a knife.
Generally as to Mr Smith, who apparently had an odd way of processing questions and expressing himself, and in particular as to his evidence about the hammer and the knife, the learned trial judge said in summing-up to the jury:
"Now, Mr Smith is still there. He has seen a knife which he described, I would have said is a good – to the extent that one could, in the exactly term, black handle, serrated blade kitchen knife (sic). When he was interviewed by the police he told them that that knife and that hammer were put near the campervan, on the ground by the accused. Now, there is absolutely no reason why Miss Dallas-Clarke should have been there when that occurred, on her evidence and on his evidence. I want to – this is quite an interesting aspect of the evidence in the terms of a case like this. If you focus on the way he described how that knife got there, he described it as being thrown, placed, that he knelt, that he did, he laid it fault (sic) on the ground. He said so many things in terms of that, that if you focused on that you'd think this guy hasn't got a clue. He didn't see it, he's making it up, but as Mr Ellis makes the point to you, he made that statement the following day and that's where they were found. So it's interesting.
Sure, he can be a very imprecise, unsatisfactory witness about some things, but Mr – it's a matter for you, but it seems that his evidence about that is right because the knife that was found fits the description and well, you've seen the photos, you've got everything else, but on top of it that is the knife on which the DNA of Mr Williams is found on the blade, so a lot of things you might think, tend to suggest that that was the weapon. Matter for you, but other things that are simply consistent with it, we know since it's proved that it's so, the evidence of Sergeant Dutton, that the dimensions and width of that particular knife could have caused the wound, and his evidence which is perhaps a little peripheral to this aspect, but part of the Prosecution's case, that the knife found is visually identical to two of those in the knife block in the wheelie bin, and that's of relevance to the prosecution's case because they put, 'Well, that's where it came from. He picked it up on the way up.'"
The evidence of Mr Smith and Ms Dallas-Clarke as to events subsequent to the physical altercation was consistent as to three things. The first is that they and the applicant lit incense and sang in a form of service over Mr Williams' body. The second is that the three of them all went back to the house at Flakemore Road, which was the house that the applicant and Ms Dallas-Clarke were in the process of vacating to move in with Mr Williams. The third is that Mr Williams' body was set on fire. There was however no consistency as to the sequence of those events, or the number of trips made between the two properties, or who was present at each of them at relevant times, and there was a direct conflict as to who ultimately lit the fire.
In her closing address Ms Baumeler said to the jury:
"And really from here on Mr Smith's sequence of events seems to be inconsistent and all over the place and changes, and I'd suggest he can't be relied upon. And I'd suggest that the reason for it being so changing is that it is difficult to maintain a lie. He can't give you a consistent account because he's not telling you about what happened. He's making it up and therefore it keeps changing.
I'd suggest to you that as Bronte Dallas-Clarke tells you they do go back to Flakemore Road, that Mr Smith does arrive later, and that they probably are there for a couple of hours before they go back and check on Mr Williams. And when they go back you've heard the evidence about what happens at that point in time, about the incense and such being lit, and I'd suggest to you it is Mr Smith's idea to burn the house down and burn the body. And again, that his account of what Mr Russell's supposed to have said is implausible when he says that the intention was to burn the evidence after he's told you that the hammer and the knife have been placed outside.
After the group has gone back to Marsden Road they all return to Flakemore Road and Mr Russell is the last to arrive, and I'd ask that you accept the evidence of Ms Dallas-Clarke that he tells her that he couldn't do it in terms of lighting the fire and I'd suggest to you that Mr Smith does hear that and that he goes back and tries to light the fire and as I said to him that the reason that he's able to give details about what was used and how it was done was because he's telling you what he in fact did. That it's a five litre tin of petrol that's to be used and that the petrol was going to be poured over the body and over the house and it's interesting to note that he doesn't struggle to recount those portions of his evidence and again I'd suggest it's because he is again telling you something that has actually happened as opposed to where he's trying to recreate something."
As to the suggestions by Ms Baumeler to the jury that Mr Smith inflicted the fatal wounds, the learned trial judge charged the jury as follows:
"Now, at this point there is a matter of speculation. Ms Baumeler has put to you that Mr Smith stayed back after Miss Dallas-Clarke and the accused had left and, in fact, he then stabbed the deceased and that he caused the deceased's death. Well, that's a submission you've had and that's something that you've got to consider, and as to it, you've just got to sift through the evidence to see whether there is any evidence at all that supports that proposition."
As to who lit the fire, his Honour said:
"So you have evidence in terms of Mr Smith and Miss Dallas-Clarke that having stayed back to light the fire the accused came back and said that he'd done so but it didn't take, but as I say, you've got the other evidence about this from Miss Dallas-Clarke. Then you have a matter of speculation and it's been put to you by Ms Baumeler that Mr Smith went back – or subsequent to this, the fire not having been lit, and it was he who lit it, and as to that it's a matter for you. It's for you to consider what evidence there is to support that."
Finally, as to all of this, his Honour said:
"There is no question that as to this Miss Dallas-Clarke says, and said on the 17th of December, that lighting the fire was Mr Smith's idea. He suggested it. He denies that that's so. He says it was the accused's idea. How important is that? I'm not sure whether it's very important at all. It may be because, of course, if Mr Smith had snuck back and killed the deceased, he'd want the fire, but would it have startled you if the – if, in fact, Miss Dallas-Clarke had said, 'Why don't we burn the house, get rid of the evidence?' They're in it together. It's bizarre and appalling but they're in it together, all sitting round. No one's gone for help, no one's called the doctor, and sitting around talking, someone says, 'Why don't we burn it?'"
Discussion
I have sifted through the evidence, as the learned trial judge suggested the jury did, in order to see if there was any evidence that Mr Smith stayed back after Ms Dallas-Clarke and the applicant had left and then stabbed Mr Williams, thus causing his death. There is none. That Ms Baumeler put to Mr Smith that he stabbed Mr Williams does not make it so, even if Mr Smith's reaction in denying that suggestion was not, as Ms Baumeler put to the jury, what would have been "the normal reaction", namely one of outrage. And I note that the learned trial judge told the jury that it must ignore Ms Baumeler's invitation to accept her word for it that Mr Smith smirked before denying that he had stabbed Mr Williams. And the suggestion made on the hearing of this appeal that another person could reasonably have committed the crime, that is some person other that Mr Smith or the applicant, is wholly unsustainable. No jury could have entertained a reasonable doubt as to the applicant's guilt on the basis of such a fanciful possibility.
Of course it is true that Mr Williams did not die immediately after the physical altercation with the applicant. He lay on the floor making a snoring sound. Now no one suggests of course that he had just dozed off. The State Pathologist, Dr Ritchey, gave evidence that death would have followed fairly soon after Mr Williams received the wounds that he did, within a matter of minutes he said. He said that between the time of the receipt of those wounds and the time of death, it was possible that there would have been laboured breathing that could have sounded like a snore and, he said, "for all intents and purposes could have been a snore".
However, that Mr Williams did not die instantly does not in any conceivable way provide evidence that Mr Smith later inflicted the fatal heart wounds. Nor does the mere theoretical possibility that the fatal wounds could have been inflicted at a time after the three non-fatal stab wounds tend to prove that Mr Smith inflicted them. Ms Baumeler's submission to the jury that it might infer that the fight between the applicant and Mr Williams was too quick to allow for five stabs is, in my view, quite specious in view of Ms Dallas-Clarke's description of the physical altercation, and it was open to the jury to treat it as such.
The speculation that Mr Smith had an opportunity to inflict the further and fatal wounds to Mr Williams is entirely unpersuasive in the absence of any possible motive for him doing so. And if there was any lie on his part as to who lit the fire, it is entirely neutral, in my view, given the bizarre behaviour of all three of them in conducting a mock service over Mr Williams' body.
The suggestion that the State failed to prove beyond reasonable doubt that the applicant inflicted any of the stab wounds is totally unsustainable. Ms Dallas-Clarke saw the two men fighting, she saw Mr Williams fall to the ground, and she saw the applicant with a knife in his hand. That evidence permits of no reasonable doubt. And that is without even considering that Ms Dallas-Clarke told the jury that after Mr Williams fell unconscious the applicant said, "What have I done?" Moreover, it was open to the jury to find that the fact of the matter was, that which Ms Dallas-Clarke originally told police, namely that the applicant had said, "Oh my God, I've just stabbed him." And all of this can be said without even considering Mr Smith's evidence that when he asked the applicant what happened the applicant said, "I've stabbed him", and the fact that the applicant lied to police when interviewed on 17 December 2011 in claiming that he had not even been at Mr Williams' house the previous evening.
It was open to the jury to be satisfied that the State had established beyond reasonable doubt that the applicant was not acting in self-defence when he stabbed Mr Williams. As Mr Ellis submitted, the evidence was that Mr Williams was older, lighter, and shorter than the applicant, and suffered from significant eye defects. If the applicant subjectively believed that he was in danger he had only walk back out the door he had just entered. He knew that Mr Williams had difficulty seeing in the dark.
Finally, there is no room for any argument that it was not open to the jury to find that the applicant intended an act that he knew, or ought to have known, was likely to cause death in the circumstances, even if he did not wish to bring about that result. The suggestion of accident was not raised at trial.
Disposition
In reaching the view that I have I am not, as was pointed out in Chidiac v The Queen (above), substituting trial by a court of appeal for trial by jury.
The ultimate question is whether this Court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty. I am firmly of the view that it was.
The jury was entitled to be satisfied beyond reasonable doubt that the applicant inflicted all of the "five" stab wounds, that when he inflicted the wounds to Mr Williams' chest and abdomen he intended acts that he knew, or ought to have known, were likely to cause death, and that he was not acting in self-defence either because he did not believe that he was in any danger from Mr Williams, or that alternatively his response was not objectively reasonable.
There is no possibility that an innocent person has been convicted and the verdict of the jury was not unsafe or unsatisfactory. I would grant leave to appeal but I would dismiss the appeal.
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