The State of Western Australia v Christie
[2005] WASC 262
THE STATE OF WESTERN AUSTRALIA -v- CHRISTIE [2005] WASC 262
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASC 262 | |
| Case No: | INS:229/2002 | 1 - 30 NOVEMBER 2005 | |
| Coram: | MCKECHNIE J | 30/11/05 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | No case to answer Judgment of acquittal | ||
| B | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA RORY KIRK CHRISTIE |
Catchwords: | Criminal law and procedure Submission of no case to answer Circumstantial evidence Principles to be applied turns on own facts |
Legislation: | Nil |
Case References: | Christie v The Queen [2005] WASCA 55 Doney v The Queen (1990) 171 CLR 207 Edwards v The Queen (1993) 178 CLR 193 G v H (1994) 181 CLR 387 Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482 Peacock v The King (1911) 13 CLR 619 R v Bilick & Starke (1984) 36 SASR 321 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Prosecutor
AND
RORY KIRK CHRISTIE
Accused
Catchwords:
Criminal law and procedure - Submission of no case to answer - Circumstantial evidence - Principles to be applied - turns on own facts
Legislation:
Nil
Result:
No case to answer
Judgment of acquittal
(Page 2)
Category: B
Representation:
Counsel:
Prosecutor : Ms T D Sweeney & Ms J Martin
Accused : Mr T F Percy QC & Ms B J Lonsdale
Solicitors:
Prosecutor : State Director of Public Prosecutions
Accused : Ian R Farquhar & Co
Case(s) referred to in judgment(s):
Christie v The Queen [2005] WASCA 55
Doney v The Queen (1990) 171 CLR 207
Edwards v The Queen (1993) 178 CLR 193
G v H (1994) 181 CLR 387
Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482
Peacock v The King (1911) 13 CLR 619
R v Bilick & Starke (1984) 36 SASR 321
Case(s) also cited:
Nil
(Page 3)
- MCKECHNIE J:
Introduction
1 The accused is on trial for the murder of Susan Christie, his former wife. The accused was originally tried on an indictment for wilful murder and on 16 October 2003 was convicted by a unanimous verdict of a jury of murder. During the course of that trial a no case submission was made and overruled by the trial Judge.
2 The accused appealed against that verdict and on 24 March 2005 the appeal was allowed: Christie v The Queen [2005] WASCA 55. Although the appeal was allowed, the Court of Criminal Appeal rejected grounds which asserted that the verdict was unsafe and unsatisfactory. On 1 November 2005 the accused was arraigned on a count of murder, pleaded not guilty, and the present trial commenced. On 29 November 2005, following the close of the prosecution case, the accused submitted that there is no case for him to answer and that as a consequence he is entitled to be acquitted by verdict of the Judge.
3 The evidence in this trial is similar in many respects to the evidence in the first trial but there are significant differences in some evidence.
4 The decision that I make is, by reason of the difference of evidence, not constrained by earlier decisions of the trial Judge or of the Court of Criminal Appeal. Those decisions were made upon the evidence in those cases. I am not bound by earlier rulings because the submission of no case is based on the evidence as it presently stands.
5 Nothing was argued to the contrary by either the prosecution or the defence but I set out these matters because of the potential for misunderstanding and misinterpretation by others.
6 In opening the case for the defence, Ms Lonsdale submitted to the jury that there were a number of people with both the opportunity and the motive to kill Mrs Christie and: "There is every chance that you will see the real murderer give evidence as part of the prosecution case."
7 The no case submission is advanced on narrow and precise grounds and is not advanced on the basis that any particular person was responsible for the death of Mrs Christie. The essence of the submission is that it cannot be established that the accused was responsible for her death.
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8 I leave entirely out of account therefore the possible involvement of any other person in the death of Mrs Christie in ruling upon the no case submission. There is in fact no evidence capable of satisfying a jury beyond reasonable doubt that any other person was involved in the death of Mrs Christie. Propositions have been put to a number of witnesses that they may have been involved in Mrs Christie's death. The witnesses to whom the proposition was put have denied their involvement and there is no evidence before this jury upon which any conclusion can be drawn adverse to any witness.
The legal principles
9 The test for a submission of no case to answer was settled in Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482. The principle is to be extracted from the judgment at 489 - 490:
"…where a no case to answer submission is made by an accused in reply to a prosecution case, the trial judge is required to ask whether the evidence of the Crown taken at its highest is capable of establishing beyond a reasonable doubt the guilt of the accused."
10 Morrison v Kiwi Electrix adopted, with approval, the test stated by King CJ in R v Bilick & Starke (1984) 36 SASR 321 at 337:
"The same test is to be applied to deciding a submission of no case to answer in a case depending upon circumstantial evidence as in a case depending upon direct evidence, although the manner of its application will be different. The question to be answered by the trial judge is whether there is evidence with respect to every element of the offence charged which, if accepted, could prove that element beyond reasonable doubt ... Where the case is a circumstantial or partly circumstantial case and therefore depends on inferences, the question may be expanded so that it becomes: On the assumption that all the evidence of primary fact considered at its strongest from the point of view of the case for the prosecution, is accurate, and on the further assumption that all inferences most favourable to the prosecution which are reasonably open, are drawn, is the evidence capable of producing in the mind of a reasonable person satisfaction beyond reasonable doubt, of the guilt of the accused?"
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11 The focus of enquiry is the capability of the evidence producing satisfaction beyond reasonable doubt. It is important to recognise the role of the jury as fact-finders in criminal trials. A Judge is not a finder of fact on a no case submission. A Judge assumes that all the evidence of primary facts is accurate. A Judge does not assess the quality of evidence: Doney v The Queen (1990) 171 CLR 207 where the High Court said at 214:
"…if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty."
12 The Court further noted that a Judge "had no power to direct the jury to enter a verdict of not guilty on the ground that, in his view, a verdict of guilty would be unsafe or unsatisfactory".
13 Again these principles are not in contention but they provide the framework by which the submission of no case to answer must be assessed.
The drawing of inferences
14 This is a case where the prosecution relies on proving circumstances so that the jury will draw inferences and ultimately draw, as the only available inference, an inference of the accused's guilt.
15 An inference is a tentative or final assent to the existence of a fact which the drawer of the inference bases on the existence of some other fact or facts. The drawing of an inference is an exercise of the ordinary powers of human reason in the light of human experience; it is not affected directly by any rule of law. Legal principle may confine the basic facts in order to exclude irrelevancies and, where proof beyond reasonable doubt is required, the legal standard of proof precludes the drawing of an inference for the purpose of determining an issue in litigation when the basic facts are consistent with an innocent inference. But the drawing of an inference is part of the process of fact finding: it has to do with the minor premiss in the syllogism of judgment, not with the major premiss of legal principle: G v H (1994) 181 CLR 387 per Brennan and McHugh JJ at 390.
(Page 6)
16 The drawing of an inference is the application of deductive reasoning from proved facts leading to a conclusion. Juries are entitled to draw inferences.
17 "Speculation" is relevantly defined by the Macquarie Dictionary as "4. conjectural consideration of a matter; conjecture or surmise". "Conjecture" is "3. the formation or expression of an opinion without sufficient evidence for proof to conclude or suppose from grounds or evidence insufficient to ensure reliability."
18 Juries cannot speculate because a jury is confined to matters of evidence and rational conclusions from the evidence.
19 In Peacock v The King (1911) 13 CLR 619 Barton J said at 651:
"Whether the fact, or that body of facts which is called the 'case' is capable of bearing a particular inference, is for the Court, and unless it is so capable, the Court's duty is to withhold it from the jury, as a single fact or as a case. But when the case is undoubtedly capable of the inference of guilt, albeit some other inference or theory be possible, it is for the jury, properly directed, and for them alone, to say not merely whether it carries a strong probability of guilt, but whether the inference exists actually and clearly, and so completely overcomes all other inferences or hypotheses, as to leave no reasonable doubt of guilt in their minds."
20 Distilling the principles derived from the cases I have cited, a Judge's role on a no case submission is to assume the existence of all facts upon which there is evidence. The Judge then draws all reasonable inferences from those facts adverse to the accused and in favour of the prosecution. If, having undertaken the exercise, the inference of guilt is reasonably capable of being drawn to a standard beyond reasonable doubt, it is the duty of the Judge to overrule the submission.
21 If a reasonable inference of guilt cannot be drawn because there is a defect in the evidence preventing the drawing of a reasonable inference of guilt to the criminal standard of proof, it is the duty of the Judge to uphold the submission.
22 In the drawing of inference, only reasoned and logical deductions are permissible; speculation and conjecture are not.
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The fact of death and of intent to cause grievous bodily harm
23 For the purpose of the no case submission, the defence concedes there is sufficient evidence for the jury to infer the fact of Susan Christie's death and that the killer intended to cause her grievous bodily harm. This concession is appropriate as there are facts established from which such a conclusion is capable of being drawn beyond reasonable doubt.
Motive and opportunity
24 For the purposes of the no case submission, the defence concedes there is some prima facie evidence of motive and opportunity, although it is submitted that ultimately there are significant difficulties with proof of these two issues. There are facts from which the jury would be capable of drawing an inference that the accused had a clear motive to compass the death of Susan Christie. I do not comment on facts which may diminish or deny the presence of a motive because it is necessary to take the prosecution case at its most favourable.
25 As the submissions developed, I took the concession that there was prima facie evidence of opportunity to be limited to evidence of opportunity to commit the killing. The evidence of opportunity of disposal of the body is contentious. I will deal with that in due course.
Consciousness of guilt - evidence
26 As part of its response to the no case submission the prosecution points to a body of evidence which it submits is capable of establishing a consciousness of guilt in the accused.
27 The prosecution is entitled to take the evidence as a whole in asking the jury to draw an inference of consciousness of guilt.
28 That evidence, in summary, consists of various lies told by the accused concerning relevant matters at different times, together with evidence of flight. There are facts which can establish that the accused told lies to the police about the circumstances of a supposed amicable meeting with the deceased on Thursday morning, 15 November 2001. The meeting was said by the accused to have lasted for about an hour and was about Fraser. However, the telephone records tendered by the prosecution cast doubt on the veracity of this account.
29 The accused initially lied to the police about his whereabouts on Friday morning, 16 November 2001, seeking to bolster the account that he was at work by reliance upon entries in his palm pilot which, the evidence
(Page 8)
- is capable of establishing, had disappeared months earlier. It may be that not too much can be drawn from this particular lie because in a real sense the accused was living a lie at the time. He pretended to Ms Terdich that he was gainfully employed in an occupation which took him off to work every day when in fact the evidence discloses that he had no job, spent the days chiefly in the library, and was being supported by his parents from Canada. However, an adverse inference against the accused is capable of being drawn from this evidence.
30 Very important to the prosecution case are lies which it is submitted were told on the Monday, 19 November 2001, to Ian Ure. These were repeated to Michelle Terdich and later to police and were to the effect that he had seen Susan Christie in Leederville that morning, Monday, 16 November 2001. The timing is significant because Ure was telephoned by the accused with this information shortly after Ure had told the accused he was going to go to the police and report Mrs Christie as missing. On the present state of the evidence it is open to regard the statements by the accused as to the apparent sighting of Mrs Christie as lies and an inference capable of being drawn is that they were lies told out of a consciousness of guilt.
31 In a similar, but not perhaps as striking form, are lies said to have been told by the accused as to when and, more particularly, who cleaned Ms Terdich's Ford Festiva. He told the police that she had cleaned the vehicle whereas her evidence was that the accused cleaned the vehicle. The cleaning is said to have taken place on 4 December 2001 immediately following a visit by Major Crime Squad officers to the accused.
32 Evidence analogous to a lie is evidence regarding a possible bare boat charter of an ocean going yacht by the accused, a man whom the evidence suggests had limited experience as a sailor and no experience as an open water sailor. The evidence of Mr Jeffrey and Ms Punch, together with Exhibits 29 and 58, are all capable of establishing attempted flight. The reason for attempted flight may be more contentious. However, the inference capable of being drawn is that the accused was acting out of a consciousness of guilt.
33 The prosecution accepts that consciousness of guilt alone cannot sustain the prosecution case. Ms Sweeney said:
"I think as a matter of law I can't base the case solely on an Edwards lie. It's obviously very significant and compelling evidence ...
(Page 9)
- But as a matter of law I think I can't base it solely on an Edwards lie. It's there to prove consciousness of guilt but, no, I'm not pushing that the lie by itself constitutes the case."
34 In my opinion this concession is properly made. In Edwards v The Queen (1993) 178 CLR 193, the majority (Deane, Dawson, Gaudron JJ) said at 208 - 209:
"… When the telling of a lie by an accused amounts to an implied admission, the prosecution may rely upon it as independent evidence to 'convert what would otherwise have been insufficient into sufficient evidence of guilt' or as corroborative evidence."
The blood on the Zegna tie – Exhibit 28
35 The following facts are conceded and are established. The accused owned Exhibit 28 (Zegna tie). It was found in his possession following the killing of Susan Christie. The bloodstains as described particularly by Mr Webb and the DNA on the tie were a match to Mrs Christie.
36 The Christies lived together for some years but separated in 1999. In a Family Court affidavit sworn on 14 June 2001 the accused deposed:
"… I was never violent to Susan. I did try to restrain her a couple of times and once this led to Susan getting a bloody nose."
37 The evidence of Mrs Stuart in the trial does not enable any conclusion to be drawn that the incident she described could possibly have led to Mrs Christie's blood getting on a tie belonging to the accused.
38 So the blood on the tie is clearly a circumstance of relevance from which inferences can be drawn. It is necessary to examine the whole of the evidence however. There is evidence that on the afternoon of Friday, 16 November 2001, the accused put in a floral tie for drycleaning at Herdsman Drycleaners. The evidence is equivocal as to whether it was a silk tie. There is no evidence that it was the Zegna tie. In order to conclude that it was the Zegna tie submitted for drycleaning and therefore an act evidencing guilt, the jury would have to be satisfied that the Zegna tie was associated in some way with the killing. I have described this in an earlier ruling as an argument of circularity.
39 The fact that the tie is described as "FLR" (floral) on the drycleaning receipt is not determinative in view of Mr Fowler's evidence that there
(Page 10)
- were three types of tie classification – plain, check and floral – and that anything floral, Paisley or featuring a flower might be regarded as floral. The evidence does not unequivocally establish indeed that the tie submitted for drycleaning on 16 November at 3.09 pm was ever collected. The prosecution submits that an available inference is that the tie was collected and that inference is clearly open. However, there is no evidence of payment for that tie.
40 Mr Fowler has not ever identified the Zegna tie as the floral tie submitted for drycleaning. This is unsurprising but the fact remains that there is no positive identification.
41 Nor does Ms Terdich identify the Zegna tie as the one being worn by the accused on 16 November 2001. Her evidence was that he wore the tie regularly but he wore other ties at least as often. This evidence is different from the evidence in the first trial.
42 The Zegna tie was visibly stained. When Mr Webb examined the stains he used the aid of a bright light to examine them closely and the stains were only evident after looking closely and using the light. The stains appeared to him to be quite diffuse. Even though they may have been hard to see, the stains were nevertheless visible to the naked eye. If the accused submitted the tie for drycleaning to disguise any involvement in Mrs Christie's death, it is unusual that he would continue to have the tie some 7 months later and after he and Michelle Terdich had parted company.
43 In 2005 tests were performed on other ties. They were stained with blood and subjected to various drycleaning processes. When a remover fluid was applied to a stain and the tie then drycleaned the bloodstains were removed. Blood was applied on the test ties when they were in a horizontal position. Blood soaked through to the tie's inner liner. Blood has not soaked through the Zegna tie to the liner. Despite the submission of the prosecution I regard it as merely speculative to reach a conclusion that the Zegna tie was in a vertical position, ie being worn at the time blood came into contact with it. All that the evidence discloses is that the blood did not seep into the liner and that the stains are very diffuse.
44 The evidence does not allow an inference to be drawn beyond reasonable doubt that the accused was wearing the Zegna tie at the time of the killing simply from the presence of blood upon the tie and the fact that a tie was drycleaned on the same day. There is a superficial attraction to linking the two events but in my opinion, on a careful analysis of the
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- evidence, such a conclusion cannot be sustained. The inference could only be drawn if there were other facts which tied the accused with the killing.
45 The presence of the deceased's blood on an article of clothing of a suspected killer is always a relevant circumstance.
46 The consciousness of guilt evidence can be taken into account in considering whether an inference of guilt to the criminal standard can be drawn.
47 In my judgment, the combination of these matters, together with motive, cannot sustain proof beyond reasonable doubt unless an inference can also be drawn from the evidence that the accused had the opportunity both to kill Mrs Christie and also to dispose of her body. The killing and disposal are inextricable.
Opportunity to do the killing
48 The prosecution has conducted its case on the basis that the accused killed Susan Christie on Friday morning, 16 November 2001. This is the case which the accused has come to meet and the prosecution should be held to its particularisation. In fairness, the prosecution has never tried to resile from the proposition that the killing was carried out by the accused on Friday morning.
49 It is, as I have said, conceded by the defence that there is prima facie evidence that the accused had the opportunity to commit the killing on Friday morning sometime after 9 am. It is approximately 1110 metres from the accused's then place of residence to Mrs Christie's unit and Michelle Terdich saw the accused shortly prior to 9 am as she was driving away to work and just as the babysitter was arriving. There is no evidence as to the accused's whereabouts on Friday morning. No witness has been called to say that the accused was seen then.
50 There is evidence that the killing may have taken place on the Thursday evening, 15 November 2001. Evidence was led that three persons upstairs (Henley, Fisher and Baird) all heard a specific noise emanating from Mrs Christie's unit although they differed as to the time this occurred. I regard evidence as to Mrs Christie's drinking habits - be it wine, tea or coffee - as equivocal. Contrary to a submission on behalf of the accused about Mrs Christie's practice of making phone calls, I do not think the phone records evidence establish a sufficient pattern of behaviour to draw any reasonable inference.
(Page 12)
51 Mrs Christie's habit of going to the Shell Service Station is not strong enough to draw any particular inference as to whether she was alive or dead on Friday morning. However, these are all matters for the jury not me. There is a body of evidence that the killing occurred on Thursday evening but for present purposes there are facts from which an inference can be drawn that the accused had the opportunity of killing Mrs Christie on Friday morning.
Opportunity to dispose of the body
52 In the circumstances of this case, it is necessary for the prosecution to prove not only an opportunity to do the acts which caused death but also an opportunity to dispose of the body thereafter. The killer disposed of the body. Whether that was risky or brazen, done in the dead of night or in broad daylight, the fact remains that the body was removed from the unit. The bloodstains and markings in the unit are subject to a number of interpretations but on a view most favourable to the prosecution, one inference to be drawn is that the killing occurred in one room and at some stage the body was removed to another, most probably to the bedroom. The valance on the bed is missing.
53 As I have indicated, the defence concedes that the accused had an opportunity to do the killing. In order to dispose of the body the killer must have had some form of transport available. There are two windows of opportunity if the accused was the killer. They are Friday morning until about 3 pm and Friday evening. The prosecution advanced this aspect of the case at TS 2485:
"We allege that he walked to the unit Friday morning and killed her then returning to the unit perhaps later when he had access to a car and removing her body from the unit. The logical time for him to do that was at night under cover of darkness."
54 As I think Mr Percy properly accepted, the prosecution cannot be held to a particularisation that the body was removed on the Friday night. It would be open for the prosecution to establish some other time for disposal. However, in the particular circumstances of this case, it is essential that the prosecution establish that the accused had both the opportunity to kill and the opportunity to dispose of the body. It would not be permissible reasoning to conclude that the accused killed Mrs Christie and therefore must have disposed of her body sometime thereafter because it has never been found. Such a line of reasoning might apply in many cases but in this case the two acts, killing and disposal, are so intertwined that a jury could not draw an inference of guilt of killing
(Page 13)
- unless it was satisfied beyond reasonable doubt that the accused also had an opportunity to dispose of the body.
55 The evidence about Friday, especially Friday night, comes from Ms Terdich. No person can vouch for the whereabouts of the accused on Friday morning so in that sense he had an opportunity to do the killing. However, if it is accepted that he required transport to remove the body, the only evidence of available transport is Ms Terdich's Ford Festiva. Ms Terdich left home on Friday 16 November 2001 at about 8.55 am. On her evidence the accused would have been wearing a tie. She went to work, parking her car at her usual place at the parking bay of Accent Gallery next door to the hairdressing salon. She could not see her car from the salon. The accused had keys to the car.
56 Ms Terdich normally parked in one habitual spot. If anyone from the salon, including Ms Terdich, went to the toilet they would have to walk passed the car. At TS 3530:
"I would say that if the car was gone – you know if I went to the toilet I would definitely notice it wasn't there."
57 There were about 10 people working at the salon and someone would be going to the toilet from time to time and to smoke as well. There were days when the accused would pick the car up and not come into the salon and on those days Ms Terdich did not remember any of the girls coming in and saying that her car had been stolen. The accused had a different seat setting from Ms Terdich. Nothing had been altered when she got into the car on Friday. She did not feel anything was odd: (TS 3546)
"But there was nothing that indicated to you when you got back in your car that day – this was the Friday - that it had been used by anyone else? - - No."
58 She went to her car which was parked in its habitual spot at 3 pm and drove home.
Friday evening, 16 November 2001
59 The evidence of Ms Terdich about Friday evening is substantially different from the evidence she gave at the first trial. At the first trial when giving evidence, Ms Terdich said that on the Friday night she was not sure what exactly happened but they were at home. When asked about a withdrawal from a bank account at an ATM in Leederville on
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- 16 November 2001 she disclaimed knowledge of it saying at TS 1258: "Well we didn't go out that night, – so".
60 In the present trial she gave evidence that on Friday night she, the accused and his son, went to Hans Café in Oxford Street in Leederville. It was the first time they had visited that establishment. They stayed quite late then went to Café 130 for a coffee and on the way back to the car the accused used the ATM.
61 She gave evidence as to whether the accused went out later on that evening.
62 Ms Terdich described the layout of the house - the fact that there was a creaky front door and that a person leaving the house would make other noises. The car was parked outside and it was put to her at TS 3553:
"… You can be certain he didn't leave the house that night? - - Yeah, I'm certain. I don't recall any of those things happening."
63 There is no contrary evidence. On these facts it is not open for the jury to draw an inference that the accused had an opportunity on the Friday evening, 16 November 2001, to dispose of the body.
64 It is possible that the accused had the opportunity to dispose of the body on Friday morning. However, on the whole of the evidence I do not consider this is a reasonable inference capable of being drawn. There would have been some time taken by the act of killing and the preparation of the body for removal, together with cleaning of the unit to remove traces of the crime. Thereafter the accused would have to have made his way to where Ms Terdich's car was parked, driven it back to the unit, parked it, and where unobserved, removed the body – all in plain daylight. He would then have driven the car to an unknown location and disposed of the body in some way before returning the car to Ms Terdich's habitual parking spot, leaving it in a condition where she was unaware that it had been driven by him. He would then have made his way back home, taken his bike and presented himself at Herdsman's Drycleaners by 3.09 pm. The prosecution accepts that the logical time for disposal of the body was at night under cover of darkness.
Conclusion
65 The evidence in this trial is in material respects different from the evidence of the first trial. Two major differences concern the Zegna tie
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- and the accused's movements on the evening of Friday 16 November 2001.
66 I conclude that there is a defect in the evidence about the accused's opportunity to dispose of the body. Taken at its highest the evidence cannot sustain a verdict of guilty.
67 I therefore direct that a verdict of not guilty be recorded and a judgment of acquittal be entered.
68 The accused is discharged from further proceedings on this indictment.
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