Whitsed v The Queen
[2005] WASCA 208
•7 NOVEMBER 2005
WHITSED -v- THE QUEEN [2005] WASCA 208
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 208 | |
| Case No: | CCA:132/2003 | 1 SEPTEMBER 2005 | |
| Coram: | ROBERTS-SMITH JA PULLIN JA MILLER AJA | 7/11/05 | |
| 48 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | GARRY DOUGLAS WHITSED THE QUEEN |
Catchwords: | Criminal law and procedure Two counts of wilful murder Prosecution case based on circumstantial evidence Whether verdicts unreasonable and/or unsupportable having regard to the evidence Multiple grounds Appellant in person Attempts to argue matters not based on evidence Directions of trial Judge Whether directions on view appropriate Forensic evidence Whether speculative Whether jurors warned adequately about publicity Turns on own facts |
Legislation: | Criminal Code (WA), s 570D, s 570D(2)(b), s 570D(2)(c) Evidence Act 1906 (WA), s 32 |
Case References: | Edwards v The Queen (1993) 178 CLR 193 Greer v The Queen, unreported; CCA SCt of WA; Library No 960120; 6 March 1996 Liberato v The Queen (1985) 159 CLR 507 M v The Queen (1994) 181 CLR 487 Martin v Osborne (1936) 55 CLR 367 Mason v The Queen (1912) 7 Crim App R 67 Noble v The State of Western Australia [2005] WASCA 333 Parker v The Queen, unreported; CCA SCt of WA; Library No 960740; 20 December 1996 Plomp v The Queen (1963) 110 CLR 234 R v Meko (2004) 146 A Crim R 141 R v Middleton (2000) 114 A Crim R 258 R v Polykarpou (1985) 18 A Crim R 288 Velevski v The Queen (2002) 187 ALR 233 De Gruchy v The Queen (2002) 211 CLR 85 McCarrol v The Queen [2004] WASCA 131 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : WHITSED -v- THE QUEEN [2005] WASCA 208 CORAM : ROBERTS-SMITH JA
- PULLIN JA
MILLER AJA
- Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : PARKER J
File No : INS 214 of 2002
Catchwords:
Criminal law and procedure - Two counts of wilful murder - Prosecution case based on circumstantial evidence - Whether verdicts unreasonable and/or unsupportable having regard to the evidence - Multiple grounds - Appellant in person - Attempts to argue matters not based on evidence - Directions of trial Judge - Whether directions on view appropriate - Forensic evidence - Whether speculative - Whether jurors warned adequately about publicity - Turns on own facts
(Page 2)
Legislation:
Criminal Code (WA), s 570D, s 570D(2)(b), s 570D(2)(c)
Evidence Act 1906 (WA), s 32
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Mr J Mactaggart & Ms A C Longden
Solicitors:
Appellant : In person
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Edwards v The Queen (1993) 178 CLR 193
Greer v The Queen, unreported; CCA SCt of WA; Library No 960120; 6 March 1996
Liberato v The Queen (1985) 159 CLR 507
M v The Queen (1994) 181 CLR 487
Martin v Osborne (1936) 55 CLR 367
Mason v The Queen (1912) 7 Crim App R 67
Noble v The State of Western Australia [2005] WASCA 333
Parker v The Queen, unreported; CCA SCt of WA; Library No 960740; 20 December 1996
Plomp v The Queen (1963) 110 CLR 234
R v Meko (2004) 146 A Crim R 141
R v Middleton (2000) 114 A Crim R 258
R v Polykarpou (1985) 18 A Crim R 288
Velevski v The Queen (2002) 187 ALR 233
(Page 3)
Case(s) also cited:
De Gruchy v The Queen (2002) 211 CLR 85
McCarrol v The Queen [2004] WASCA 131
(Page 4)
1 ROBERTS-SMITH JA: I have read the draft reasons prepared by Miller AJA. I agree with those reasons and have nothing to add.
2 PULLIN JA: I have read the draft reasons for judgment of Miller AJA. I agree his Honour's reasons and have nothing further to add.
3 MILLER AJA: The appellant was convicted on 7 August 2003 of two counts of wilful murder following a trial before Parker J and a jury in the Supreme Court at Perth. He has prosecuted his appeal against conviction in person and, by his notice of appeal, has raised 15 grounds, many of which are subdivided into subgrounds or particularised in great detail.
Grounds of appeal
4 Leaving aside the subgrounds and particulars, the grounds of appeal raised by the appellant are as follows:
1. The verdicts are unreasonable and/or cannot be supported having regard to the evidence:
(a) by reason of shortcomings in relation to the forensic evidence and/or the possible contamination of evidence caused by the sale of the vessel on which the offences allegedly occurred and for other reasons;
(b) the prosecution failed to produce any conclusive or factual evidence to rebut the appellant's version of events that Alahna Croft was shot on board the vessel by accident; and
(c) the prosecution wrongly relied upon alleged lies of the appellant as consciousness of guilt.
2. The learned trial Judge erred in failing to direct the jury by way of a "Liberato" direction.
3. The learned trial Judge erred in directing the jury that the appellant had formally admitted that the two deceased persons had met their deaths as alleged in the indictment.
4. As above.
(Page 5)
- 5. The learned trial Judge failed adequately to direct the jury about contamination of the crime scene.
6. The learned trial Judge failed to direct the jury that a police officer had unlawfully altered a statement made by the appellant to investigating police.
7. The learned trial Judge erred in relation to his direction to the jury on the question of motive.
8. The learned trial Judge erred in his direction to the jury in response to a jury question about "proof".
9. The learned trial Judge erred in directing the jury by making speculative assumptions that the appellant had not used either the radio or beacon aboard the vessel at the time of the alleged offences.
10. The Crown prosecutor adduced prejudicial and unqualified opinion evidence about long-distance sailing before the jury.
11. The prosecution failed to disclose material relevant to its case prior to the trial.
12. The view conducted by the jury was unsatisfactory.
13. The forensic evidence was unreliable and introduced speculative scenarios that should not have been put before the jury.
14. The Crown prosecutor wrongly suggested to the jury that a "help" note may have been written by one of the deceased.
15. The learned trial Judge failed to direct the jury adequately about the need to disregard media coverage of the trial.
5 The appellant argued these grounds before the Court and later sent to the Court a letter dated 14 September 2005 attached to which were various additional written submissions. These submissions were not invited by the Court, but a perusal of them added nothing to what the appellant had already put in argument. It was not necessary to give the respondent the opportunity to respond to them.
Ground 1
6 To understand this ground, it is necessary to summarise the case against the appellant. The indictment presented by the prosecution alleged that on or about 29 July 2001 at Montague Sound in Western Australia, the appellant wilfully murdered Avril Croft and, further, that on or about the same date and at the same place, he wilfully murdered Alahna Jenna Croft.
(Page 6)
7 The events relevant to the trial began in about July 1999. It was then that the appellant met 57-year-old Avril Croft and her 15-year-old daughter Alahna. The appellant was aged 32 and living on a yacht at Mooloolaba in Queensland. He had been sailing around Australia with his parents. Avril Croft was living on a yacht close to the appellant's family yacht at a marina in Mooloolaba. A relationship developed quickly between the appellant and Mrs Croft.
8 In April 2000, the appellant sailed with his parents to Darwin. It was their intention to sail on to Perth. However, at Darwin, the appellant's stepfather and mother separated and the appellant left the yacht with his mother.
9 In November 2000, Mrs Croft bought a yacht named the "Celt" in Darwin and moved to Darwin with her daughter. It was her plan to sail around the Kimberleys for three or four months until August or September 2000 when Mrs Croft had plans for Alahna to join a dance school in Sydney. She was to be joined by the appellant.
10 Mrs Croft was a competent sailor. She and Alahna were very close and dedicated to each other. Mrs Croft was an anxious person and she took antidepressant medication. However, she was, by all accounts, very happy at or about the time she acquired the "Celt" in Darwin.
11 The "Celt" was originally bought in Indonesia by a Stephen Benson. He had sailed it in March 2000 to Darwin and advertised it for sale in October of that year. Mrs Croft bought the vessel in November. After she left a deposit on the vessel, the appellant appeared with a cheque for the balance of the purchase price which was paid to Mr Benson. Importantly, Mr Benson had altered the HF radio connection to battery which had proved very effective. The HF radio worked well and the VHF radio worked perfectly at the time he sold the vessel.
12 After Mrs Croft and Alahna came to Darwin, they were joined by the appellant in preparing the "Celt" for the Kimberley trip. They did much work on it and various repairs were required. Arguments between the appellant and Mrs Croft were witnessed and the appellant told a young man named Swinstead that Alahna was of little help on the boat and was an annoyance to him in various ways.
13 By 23 April 2001, the "Celt" was underway to the Kimberleys. It was photographed by a surveillance aircraft just out of Darwin on 23 April. It was seen in Crocodile Creek in June 2001 and later in the same month, at Silver Gull Creek. At Silver Gull Creek on 19 June,
(Page 7)
- Mrs Croft told Marion Smart and Philip Wray that she was unhappy and was thinking of putting the appellant off the vessel at Cockatoo Island. She asked Wray if he would deliver the "Celt" to Darwin, but he declined to do so.
14 Some time in June 2001, the "Celt" arrived at Cockatoo Island. It was there for some weeks. By 24 July 2001, the "Celt" was at Boomerang Bay on Bigge Island. Both Avril and Alahna Croft were observed by witnesses to be in good spirits. The appellant was described as being reserved. The "Celt" left Boomerang Bay on 25 July and this was the last time Avril and Alahna Croft were seen by anybody other than the appellant.
15 There was a good deal of evidence led at the trial about the relationship between the appellant and Mrs Croft. There was also evidence about the appellant's attitude towards Alahna Croft. The trial Judge later told the jury that the purpose of this evidence was to assist them particularly in relation to the question of whether Mrs Croft and Alahna were killed by the appellant or whether Mrs Croft took her own life and Alahna and was accidentally killed. I shall come later to the details, but it is sufficient to say at this stage that the relationship evidence indicated that Mrs Croft and her daughter were very much devoted to each other. There were, however, reports to others of difficulties between the Crofts and the appellant on board the vessel, particularly because of the fact that the three people were confined in such a small space. Mrs Croft, however, made numerous expressions of her love for the appellant.
16 The log book of the "Celt" revealed that on 25 July, the "Celt" moved from Boomerang Bay to Shelter Bay in Prudhoe Island. There was a vessel there named the "Chin Too". It was about one and a half to two kilometres from the position of the "Celt". On 20 August, which was about three weeks after the appellant later said that the Crofts had died, he arrived in a dinghy at the "Chin Too". The appellant told a Mr Munkton and Ms Boswald on board the vessel that his crew was spending a lot of time camping on shore and had been there for about three weeks. The appellant said he was waiting for the right conditions to set sail. When Ms Boswald said that the "Chin Too" would be heading for the King George River, the appellant indicated that he would possibly be heading in the same direction. The following day, the crew of the "Chin Too" met the appellant again. The appellant was asked to come with his crew to the "Chin Too" for dinner that evening. He said he would speak to the crew and get back to them, but he failed to do so and nobody arrived.
(Page 8)
17 On the morning of 22 August, the "Chin Too" sailed for King George River. The following day, Mr Munkton observed the "Celt" sailing behind. The next day when the "Chin Too" turned off to go to King George River, the "Celt" kept heading towards Darwin.
18 On 26 August 2001, the "Celt" was in the Joseph Bonaparte Gulf and getting close to Darwin. The next known thing is that the appellant's stepfather received a message on 28 August 2001 to telephone his wife. Mr Whitsed Snr was in Hillarys in Perth and his wife was in Darwin. He rang the Darwin number and spoke to the appellant. The appellant told him that there had been "a terrible accident" and that Avril had hanged herself and Alahna had been shot. He was asked what he did with them and he said he had thrown them overboard at Bigge Island about a month beforehand. The appellant said he had not been able to use the radio. When asked about any blood, he said "there wasn't much".
19 Mr Whitsed Snr then contacted police who arrived at the appellant's mother's address. A Detective Atkins had a conversation with the appellant in which he said, "I don't know if it was or could be called murder but I reckon it was an accident … I spent a month on a boat. I've done some things wrong", or "I've done some wrong things".
20 The appellant said that he had killed "Avril". He appears to have said "Avril" when he meant "Alahna". He said that Avril had put a rope around her neck through the hatch. He had gone down and found her "blue and pale". He said she had the gun which was on board and he had taken the gun. He said he did not mean to shoot her, but he had killed Avril. (This appears to have been an error in use of name, as it was Alahna who he later said he had shot). He had put Alahna over the side of the vessel in a sleeping bag and he felt responsible for her death. When asked about Mrs Croft, the appellant said that she had taken "a whole heap of tablets" and used a cord around her neck that went through the hatch.
21 There were later more extensive interviews with the appellant. The essence of his account of what had happened on board the "Celt" was that Mrs Croft had endeavoured to hang herself whilst lying on a bunk and when he had seen this, he picked up the gun and for no real reason pulled the trigger. The result was that Alahna, who had been above the hatch where the gun was pointing, was shot. One eye was hanging out of her head and the dog was sniffing around her. As a result, the appellant had bundled her into her sleeping bag and put her over the side of the vessel. He had then cleaned up any blood that remained. Later, when he realised
(Page 9)
- that Mrs Croft was dead, he put her into a 44-gallon drum and threw that overboard.
22 There was forensic evidence led at the trial in relation to the examination of the vessel. The only relevant evidence found was a small blood stain on a bed sheet in Alahna's bedroom.
23 The appellant had marked in the "Celt's" logbook the location where Mrs Croft and her daughter had been thrown overboard. This location was found by police divers who located a drum. There was human hair in the drum but DNA could not produce any identification of whose it was. There were a variety of sharks and crocodiles in the area.
24 Police found the HF and VHF radios to work properly on the vessel. They examined the rifle which was a military weapon of 6.5 mm calibre. Ammunition for the rifle was designed for hunting and had a soft lead tip which mushroomed upon impact. In the event that it hit a human, there would be a great deal of trauma. If the head was hit, it would rupture and much body fluid would escape. Eyes would most certainly not be left in the head if the head was shot at a distance of 15 feet or so. There would be extensive fragmentation of the skull with fluid, brain and other biological material being forced out of it. There was expert opinion that one eye being shot out of the head and a little blood would be inconsistent with a shot to the head at 15 feet or less with that weapon.
25 There was evidence from a medical practitioner that Mrs Croft was given antidepressant medication. Many tablets of the nature that she had could be taken without a patient dying. There was no record of any suicidal tendencies on the part of Mrs Croft.
26 The forensic pathologist, Dr Karen Margolius, gave evidence about the effects of the discharge of a cartridge from the particular weapon at close range. She likened the impact on a human head to an impact on a pumpkin with consequential spattering of blood, brain and other material. She thought the description of an eye hanging out of Alahna's head after being shot was entirely inconsistent with the weapon used. She had problems with the scenarios painted by the appellant. She gave detailed evidence about how people hang themselves and pointed out that with partial hanging, the face becomes very ruddy or red. She thought the description of the way in which Mrs Croft had attempted to kill herself was a very difficult way for a person to hang themselves. She expressed the opinion that "people don't often lie backwards and hang themselves" and, in any event, one would expect a red or ruddy or purply colour to be
(Page 10)
- evident on somebody who had attempted to do so as described by the appellant.
27 Against this background of evidence at trial, it is necessary to look closely at the contention in ground 1 that the verdicts of guilty of wilful murder were unreasonable or could not be supported having regard to the evidence.
28 The prosecution case was wholly based upon circumstantial evidence. It had a number of strands:
1. The two women were very close and both mother and daughter shared strong hopes for Alahna's future in dance studies in Sydney.
2. The appellant and Mrs Croft were in a relationship for over a year. There were, however, tensions between them, primarily brought about by problems between the appellant and Alahna.
3. The two women met their deaths in a remote location on the north-west coast of Western Australia whilst on board the "Celt" with the appellant.
4. The appellant quickly disposed of both their bodies by putting them into the sea. Both bodies were weighted. The waters were strong tidal seas, opaque and infested by saltwater crocodiles and sharks.
5. The appellant made no attempt to notify authorities or obtain assistance in relation to what had happened, notwithstanding that he had high frequency and very high frequency radios and an emergency beacon, all of which were in working order.
6. The appellant cleaned the yacht extensively, washing and scrubbing the deck with an acid cleansing compound.
7. The appellant remained at anchor in the same position for some three weeks after the deaths of the two women and when in contact with another yacht, he lied to the crew of that yacht by saying that his crew were camping ashore. They were in fact dead at that time and yet the appellant sought no assistance.
8. The appellant gave a lengthy account to police about what had happened. He said that Mrs Croft had committed suicide and that he had accidentally shot Alahna.
9. The accounts of the deaths of the two women given by the appellant were false.
(Page 11)
29 There was considerable elaboration of the last point. It was said that it would be improbable that Mrs Croft would commit suicide when she had so much to live for with her plans for her daughter and in any event, the account of her suicide, although possible, was unlikely. Further, the appellant had inexplicably picked up a rifle and fired a shot through the open overhead hatch in circumstances which were unbelievable. Immediately after firing the shot, he had gone to the deck without checking to see whether Mrs Croft, who had attempted to commit suicide, was alive or dead. He then spent time disposing of Alahna's body by putting it into the sea. The explanation for the accidental shooting of Alahna was said to be entirely unbelievable. If he thought Mrs Croft was dead on the bunk, why would he have fired a shot and how could it have been so coincidental that at that very moment Alahna had been on the deck just by the hatch? Further, the ballistic and medical evidence was such as to make the account of how Alahna was killed entirely unbelievable.
30 The prosecution put to the jury that it was fanciful to suggest, as the appellant had done, that the deaths of the two women occurred in the circumstances he explained. It was the prosecution case that whatever might have been the precise circumstances of death, there was clear evidence to satisfy the jury beyond reasonable doubt that the appellant had deliberately killed each of the women intending to cause their deaths.
31 The learned trial Judge gave an impeccable direction to the jury on circumstantial evidence and how it should be treated in the case. No challenge is made to that direction, nor could it be.
32 When considering whether the verdicts of the jury were unreasonable and/or could not be supported having regard to the evidence, it must be accepted that the ordinary rule relating to circumstantial evidence is that a jury cannot be satisfied beyond a reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances: Plomp v The Queen (1963) 110 CLR 234 per Dixon CJ at 243.
33 In Martin v Osborne (1936) 55 CLR 367, Dixon J expanded upon the rule by saying:
"If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference. In the inculpation of an accused person the
(Page 12)
- evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed. The circumstances which may be taken into account in this process of reasoning include all facts and matters which form constituent parts or ingredients of the transaction itself or explain or make intelligible the course of conduct pursued. The moral tendencies of persons, their proneness to acts or omissions of a particular description, their reputations and their associations are in general not matters which it is lawful to take into account, and evidence disclosing them, if not otherwise relevant, is rigidly excluded. But the class of acts and occurrences that may be considered includes circumstances whose relation to the fact in issue consists in the probability or increased probability, judged rationally upon common experience, that they would not be found unless the fact to be proved also existed."
34 In my opinion, it was well open to the jury in the present case to conclude beyond reasonable doubt on the whole of the evidence led at the trial that on or about 29 July 2001 at Montague Sound on the north-west coast of Western Australia, the appellant unlawfully killed Avril and Alahna Jenna Croft, and at the time when he did so, he intended to kill them. To use the words of Dixon CJ in Plomp v The Queen (supra) at 243, "if the jury weighed all the circumstances, they might reasonably conclude that it would put an incredible strain on human experience" to accept that the two women met their deaths in the way in which the appellant had described, or to have been left with any reasonable doubt about the matter.
35 In my opinion, it was open to the jury to reject the explanations the appellant gave to investigating police and to be satisfied beyond reasonable doubt that there was no competing inference in the form of a reasonable hypothesis consistent with the innocence of the appellant. In this respect, I respectfully adopt what was said by Malcolm CJ in Parker v The Queen, unreported; CCA SCt of WA; Library No 960740; 20 December 1996 at 20 to the following effect:
"The meaning of the expression 'reasonable hypothesis' was considered in Bushell v Repatriation Commission (1992) 175 CLR 408 at 413-414 per Mason CJ, Deane and McHugh JJ. To
(Page 13)
- be 'reasonable' an hypothesis must possess some degree of acceptability or credibility. An hypothesis cannot be reasonable if it is contrary to proved facts or if it is obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous: East v Repatriation Commission (1987) 16 FCR 517 at 532; cf Thomas v The Queen (1960) 102 CLR 584. In Repatriation Commission v Webb (1987) 76 ALR 131 at 135 Beaumont J distinguished between an hypothesis which was 'reasonable', on the one hand, and one which was not. The distinction was between a theory rationally based, on the one hand, and an opinion or view that was irrational, absurd or ridiculous on the other. This is probably what was meant when it was said in Plomp and Thomas that the inference of guilt must be the only 'rational inference' open on the evidence. In this context it needs to be borne in mind that a 'reasonable' hypothesis is not only one that is logically possible but also reasonable, not fanciful, whimsical or chimerical."
36 The strands of circumstantial evidence, when woven together, presented an overwhelming case of guilt against the appellant. His explanations were capable of being treated by the jury as lies which were told out of a realisation or consciousness of guilt. The jury was entitled to accept that by telling those lies, the appellant must have known that if he told the truth about what had in fact occurred to the Crofts, he would be implicated in the unlawful and intentional killing of them. It was for the jury to consider whether what the appellant had said constituted lies and, if so, whether the lies went to material issues in the case, and the telling of those lies was explicable only on the basis that the truth would implicate the accused in the events with which he was charged: see Edwards v The Queen (1993) 178 CLR 193 at 209 and R v Meko (2004) 146 A Crim R 141 per E M Heenan J at [44 et seq].
37 In my view, it was well open to the jury to conclude that what the accused had said about the circumstances of the deaths of the two women were in fact lies and lies which went to material issues because the telling of those lies was explicable only on the basis that the truth would implicate the appellant in the wilful murders with which he was charged. I have reached this view because the accounts of the deaths of the two women were entirely inconsistent with the forensic evidence.
38 Dr Margolius made it clear that the versions of the deaths given by the appellant were highly unlikely. Further, evidence from a ballistics expert revealed that the impact of a projectile from the rifle in question
(Page 14)
- would have caused far more damage to the head of Alahna Croft than the appellant claimed. The very acts of throwing the bodies overboard and then making no contact with anybody by radio speak for themselves, as did the acts of the appellant in his discussions with the crew on the neighbouring yacht. To suggest that all was well and that his crew were camping, when in fact they were dead, is explicable only as a lie told with consciousness of guilt. The common course of human affairs could only lead a jury to conclude that, in all the circumstances, the degree of probability that the two women were wilfully murdered as alleged, was so high that the contrary could not reasonably be supposed (Plomp v The Queen per Dixon CJ at 243).
39 It may be that the jury was unable to determine precisely how the two women met their deaths, but there was abundant evidence from which they could conclude beyond reasonable doubt that they were wilfully murdered by the appellant. I am therefore of the opinion that it is an impossible task for the appellant to persuade this Court that the verdicts were unreasonable and/or could not be supported having regard to the evidence. The question whether the verdicts were unreasonable or could not be supported having regard to the evidence, is a question of fact to be decided by this Court. That decision is to be made in accordance with the test set out in M v The Queen (1994) 181 CLR 487 at 482 – 483:
"The question is one of fact which the court must decide by making its own independent assessment of the evidence (Morris v The Queen (1987) 163 CLR 454) and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand' (see Hayes v The Queen (1973) 47 ALJR 603 at p 604). But a verdict may be unsafe or unsatisfactory for reasons which lie outside the formula requiring that it not be 'unreasonable' or incapable of being 'supported having regard to the evidence'. A verdict which is unsafe or unsatisfactory for any other reason must also constitute a miscarriage of justice requiring the verdict to be set aside."
40 At 493 the Court added:
"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that
(Page 15)
- upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (see Whitehorn v The Queen (1983) 152 CLR 686; Chamberlain v The Queen [No 2] (1984) 153 CLR 532; Knight v The Queen (1992) 175 CLR 495 at pp 504-505, 511). But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations (Chamberlain v The Queen [No 2] (1984) 153 CLR 532 at p 621)."
41 The application of these tests lead to only one conclusion. It is that there was an overwhelming circumstantial case against the appellant and the jury was well entitled to be satisfied beyond reasonable doubt of the guilt of the appellant on both counts.
Other Aspects of Ground 1
Grounds 1.1 – 1.6
42 These grounds complain that property and items were removed from the "Celt", leading to a situation in which there was a failure on the part of the authorities to compile a full inventory of the "crime scene" and, further, that there was deliberate tampering with exhibits.
43 There is no evidential foundation to support these grounds. Further, four days after the appellant brought the deaths of the two women to the attention of his stepfather and the police, he was taken by police to the "Celt" and he voluntarily participated in giving a demonstration of what he said had occurred to bring about the deaths of the two women. The demonstration was recorded on video. The jury had the opportunity of seeing the "Celt" at the closest possible time to the date upon which the two women met their deaths. As the respondent submitted at the hearing of the appeal, the only actual evidence of any interference or tampering with the "crime scene" was forensic evidence which suggested that the appellant had scrubbed the deck of the "Celt" with chemicals. There was no evidence that anybody unlawfully removed or tampered with any property or items of equipment on board the "Celt". These grounds therefore have no substance.
(Page 16)
- Grounds 1.7 – 1.12
44 These grounds complain that the "Celt" was sold late in 2001 to a police officer of the Northern Territory Police Department when it should have been impounded and kept as an exhibit. Further, it is contended that at the time the jury conducted a view of the vessel, it was rigged in a way which was not the same as that at the time of the events in question.
45 There was evidence from the purchaser of the yacht that aside from regular repairs and maintenance, there were no substantial alterations to the structure of the yacht. Counsel for the appellant did not suggest at trial that there had been any such changes. Nor did he suggest that there had been any relevant property or any items of equipment on the yacht which had been disposed of. There is therefore no substance in these grounds.
Grounds 1.13 – 1.14
46 These grounds contend that guards at the crime scene failed to ensure that there was no unlawful removal of items from the crime scene and failed to ensure that there was no unlawful boarding of the vessel. For these reasons, it is said that the crime scene was contaminated and blemished in circumstances whereby forensic examination occurred in adverse circumstances. Again, there is no evidence to suggest that any of these things occurred and the grounds cannot be supported.
Ground 1.15
47 This ground contends that the prosecution failed to produce any conclusive or factual evidence that Alahna Croft was shot on board the vessel as described by the prosecution. The ground misconceives what the prosecution case was about. It was directed at demonstrating to the jury that the account given by the appellant of how Alahna met her death was entirely inconsistent with what would have occurred had she been shot in the head with a projectile from the rifle in use on the vessel. The prosecution did not seek to put forward a particular account as to how Alahna met her death, but only that she had been wilfully murdered by the appellant and the account that he gave of her death was inherently implausible.
48 The prosecutor opened the prosecution case at some length. He did say early in the opening that it was the Crown case that the accused had shot Alahna with the rifle on board the "Celt". He said it in the following context:
(Page 17)
- "Given the fact that they would be in waters populated by salt-water crocodiles, this bolt-action repeating rifle had been purchased in Darwin a month before they left. Also on board were two packets of cartridges and that was ammunition that was used for that particular gun, and it's ammunition that's commonly used for hunting and was therefore appropriate should any crocodiles need to be shot. Now, it's the crown's case that the accused shot young Alahna with this rifle."
49 Later, towards the conclusion of a very long opening, the prosecutor put to the jury that it would be the Crown case that the appellant was directly involved in the deaths of both women and that it was his intention to kill them when he was responsible for their death. He put it in the following way:
"In this case the crown will prove the charges of wilful murder against the accused by way of circumstantial evidence, and of course the burden of proving everything against the accused is on the crown. There is no burden on him to disprove anything. It is my submission to you that there are many pieces of circumstantial evidence that once you put together create a compelling case that proves the accused was not only directly involved in both deaths in this case but his involvement was such that he intended to kill this mother and her daughter."
50 The appellant has seized on the prosecutor's statement early in the opening that it was the Crown case that the accused had shot Alahna, but in truth, the Crown case was that the circumstances of the death of both women might never be precisely known. The case was that the appellant was responsible for those deaths and by inference, must have intended the death of both women.
51 The early reference by the prosecutor to the Crown case being that the appellant shot Alahna can only be interpreted to mean that if the jury was satisfied beyond reasonable doubt that the appellant had shot her, he had done so with the intention of causing her death and not in accidental circumstances as he told police.
52 I do not consider there is any substance in ground 1.15.
Grounds 1.16 – 1.17
53 Ground 1.16 complains that a camera and undeveloped rolls of film of the sea journey of critical importance to the appellant, together with the
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- contents of letters from the appellant to Mrs Croft were missing at trial. No application was made by counsel for the appellant for production of any of these items and it is impossible to suggest that the absence of them thereby occasioned a miscarriage of justice.
54 Ground 1.17 relates to the question whether a wind scoop was on the "Celt" at the time of the deaths of the two women. It contends that it was not possible to infer that a wind scoop would have been in location and in use on the hatch at the relevant time. Such a wind scoop would presumably have impeded the bullet fired from the rifle and cast doubt upon the appellant's version. However, nothing turns on this. The learned trial Judge gave a direction to the jury that there was nothing in it. His Honour made two references and they were as follows:
"It was her [Dale Boswald's] evidence that a nun's hat was used when anchored to funnel wind into the boat. It can be turned around to catch wind. It's not really advisable to have it up when sailing because it can be ripped, and it's a matter of personal choice whether to use one or not at any time."
55 The second reference was as follows:
"With respect to the nun's hat, it is submitted that there is no evidence that it was fitted at that time."
56 The last reference was made during the course of summing up the defence submissions to the jury. The prosecution had apparently made nothing of the issue. In all the circumstances, it seems that what was said about it was effectively an acceptance by the learned trial Judge of the defence submission.
57 I can see no substance in either of these two grounds.
Ground 1.18
58 This ground challenges evidence in relation to forensic examination of the chemical Alibrite. It relates to evidence given by the forensic scientist, Ms Carmen Eckhoff, who examined the "Celt" on 29 August 2001. She searched for blood stains and biological matter and used Otol and, later, Luminol. There was a problem with the Luminol because a false luminescence occurred from a reaction with metal and, in addition, there was bright moonlight when she conducted the examination. She said that no blood or biological material was found on the forward deck or in any of the crevices of the deck either on visual examination on Otol or on Luminol examination. She thought that if the deck had been washed
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- with saltwater and scrubbed down, blood traces would be found using Luminol, but if an acid substance like Alibrite had been used, this would affect the component of blood on which Otol and Luminol work. The result would be that if Alibrite or a similar acid had been used, Ms Eckhoff would not have expected to have found anything from her testing.
59 It is not to the point that Alibrite was not analysed. There was simply an expression of opinion from the forensic scientist that if an acidic substance such as Alibrite had been used, it may well have been responsible for the fact that she could obtain no reactions for blood on the deck of the vessel. It led nowhere and, in my view, the ground has no substance.
Ground 1.19
60 This ground challenges the prosecution contention at trial that the appellant had gone to the "Chin Too" "to conceal and prevent discovery of the alleged offences".
61 It is difficult to understand the ground, but the appellant's conduct in relation to the "Chin Too" and its crew was the subject of clear direction by the learned trial Judge. His Honour told the jury that the evidence was about the appellant going to the vessel and telling those on board that the crew members on the "Celt" were keeping ashore because they did not like the movement of the boat. As the learned trial Judge pointed out, this was three weeks after the accused said he had disposed of the two bodies into the sea. The learned trial Judge pointed out that the prosecution case was that what the accused told the crew members of the "Chin Too" constituted lies and revealed that he was trying to hide the fact that the two women who had been on board the "Celt" were dead. He was trying to prevent discovery of his guilt in respect of their deaths. Thus, the prosecution was relying on the lies as evidence demonstrative of his guilt.
62 The trial Judge did, however, tell the jury that they had to consider that submission very carefully before they accepted it. He gave the classic direction in relation to lies and the use to which they can be put by a jury. He pointed out that the jury had first to be satisfied that the accused had lied in the sense that he knew what he said was false. He then pointed out that the lie must be connected with the killing of the two women. His Honour directed the jury that they had to be satisfied that by telling lies, the appellant was revealing that he had some knowledge of each unlawful killing, or at least one of them, and knew that if he told the truth, it would implicate him in the killing. That is, the jury had to be satisfied
(Page 20)
- beyond reasonable doubt that the accused lied because of a realisation of guilt. This direction was in accordance with what was said in R v Meko (supra)by E M Heenan J at [47]. His Honour indicated clearly that people may lie for reasons other than a realisation of guilt and gave the usual direction in this respect. I am unable to find any substance in this ground of appeal.
Ground 2
64 At the conclusion of his directions to the jury, the learned trial Judge did spell out clearly the jury's task in relation to evidence of what the accused had told investigating police officers. He said:
"At some stage or other in your deliberations, Mr Foreman and ladies and gentlemen, it is clear that you must come to consider the matters that I have just mentioned a moment ago: whether or not you can be satisfied beyond reasonable doubt that the accused's explanation of how Avril Croft died is false.
If you can't, if you are left with a reasonable doubt, then as I have indicated each of your verdicts must be not guilty, and that
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- you would separately have to consider whether you are able to be satisfied beyond reasonable doubt whether his explanation for the death of Alahna is false and if you were not able to do that, if you were left with a reasonable doubt or accepted it, then you could not convict the accused of wilful murder or murder in respect of the death of Alahna. So they become very significant issues in your deliberations."
65 In my opinion, the learned trial Judge properly directed the jury in relation to where the onus of proof lay in this trial and what standard of proof had to be satisfied before the appellant could be convicted of either offence. There is absolutely no substance in ground 2.
Grounds 3 and 4
66 These grounds are more or less the same. They contend that in his opening comments to the jury, the learned trial Judge wrongly informed the jury that the appellant had formally admitted that the two deceased persons had met their deaths as alleged in the indictments. Further, in his summing up to the jury, the same error was made.
67 What the learned trial Judge told the jury related to admissions which had been made by counsel for the appellant. There were two references to the subject. One was immediately after the admissions had been made, and was to the following effect:
"MAZZA, MR: … the accused man admits, pursuant to section 32 of the Evidence Act, that Avril Croft and Alahna Croft met their deaths in Montague Sound on or about 29 July 2001.
PARKER J: Thank you. Ladies and gentlemen, you have heard that formal admission. That is that the two women, the mother and the young daughter, met their deaths as alleged in the indictment, that is at the place Montague Sound, and at about the date, 29 July, as alleged in the indictment."
68 The second reference was in the course of the summing up, and was as follows:
"I could go through and remind you of all the evidence that might well persuade you that you could accept that they were dead, but I'm happy to tell you there is in this case a short-cut. You will recall that at the outset the fact that each of these two women are dead was formally admitted by the accused. It's
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- formally admitted that both Avril Croft, the mother, and Alahna Croft, the daughter, met their death as alleged in the indictment; that is, at Montague Sound and that this happened on or about 29 July 2001.
In effect through his counsel the accused is saying, "I was there. I know they both died. I formally admit the two deaths." It's open to you to act on that formal admission and to accept it as establishing beyond reasonable doubt that each of the two women are dead and that they died at Montague Sound on or about 29 July 2001. On that basis I won't spend more time on the first element; death."
69 The appellant contends in his grounds of appeal that he did not formally admit to the offences forming the subject of the indictment "as wrongfully stated by the learned trial Judge". This is not what the learned trial Judge said. His Honour did not suggest that the appellant had admitted to anything more than the fact that the two deceased had met their deaths on or about 29 July 2001 at Montague Sound. That was the admission made by the appellant's counsel pursuant to s 32 of the Evidence Act. There is no substance in either ground.
Ground 5
70 This ground contends that the learned trial Judge failed to direct the jury in relation to contamination of the crime scene. It has a degree of overlap with some of the particulars to ground 1.
71 There was no evidence at the trial that there was any contamination of the crime scene or that any forensic material had been flawed. There was no request of the learned trial Judge to exclude any of this evidence in the exercise of his discretion. The learned trial Judge told the jury what the forensic evidence was and the extent to which any of it was the subject of cross-examination.
72 In dealing with the defence case, his Honour explained to the jury what challenge there was in relation to forensic evidence. He said:
"The defence submits you should not accept from the evidence of Ms Eckhoff, the scientist at Darwin, that there was never any blood or body matter on the deck of The Celt after the death of Alahna Croft. The accused had cleaned the yacht, scrubbing the deck and using Alibrite, the boat had been in the weather for a month since the deaths. All of these things combined to lessen
(Page 23)
- the chances of blood or matter remaining and of being discovered, the chemical testing could be ineffective because of the Alibrite, and the luminol test was conducted under adverse conditions which could have allowed a positive reaction to be unnoticed. Further, until it is known where Alahna was on the deck, it is not possible, it is submitted, to form any view about the possible trajectory of a bullet fired as the accused has indicated, and his demonstrations were never precise, so that it can't be concluded that a bullet would have missed Alahna's head fired as he indicated.
Those matters and others Mr Mazza put to you are sufficient, it is submitted, at least to raise a reasonable doubt that the accused's account of the deaths to the police may be true. They may well satisfy you that they are the truth but, if not, it is put to you that they at least raise a reasonable doubt."
73 I can see no substance in this ground.
Ground 6
74 This ground contends that the learned trial Judge failed in his directions to the jury to point out that there had been unlawful tampering with the initial statement provided by the appellant to investigating police.
75 The evidence in question was evidence of Detective Sergeant Atkins relating to a conversation that he had with the appellant on the afternoon of 28 August 2001. The witness testified that he had made notes of a telephone call between the appellant and himself beginning at 1542 hours. Some excerpts from the evidence are as follows:
"Mr Whitsed said, 'I don't understand what is going on or the legal side. I don't know if it was or could be called murder but I reckon it was an accident.' I asked him where he was. Mr Whitsed said, 'I'm on land. I just got some food for the dog. He's the only thing left now. Then I'm going to the station to hand myself in.' I then arranged for him to call back, as I said before. Approximately 2 minutes later Mr Whitsed called back and I answered the phone. Mr Whitsed said, 'I spent a month on a boat. I've done some things wrong. I lost it. She asked me to go back' - sorry, I'll start again, 'She asked me to get the boat back and her and the dog safe. I've already,' then there was a delay when he was speaking at that stage and what he said
(Page 24)
- further after that was, 'I stayed there for a week with a gun to my head.'
…
I then asked him what had happened. Mr Whitsed replied, 'We'd go a week and everything would be fine.'
I then said, 'What happened to the girl?' Mr Whitsed replied, 'I honestly believe the girl was an accident, but I've killed Avril.'
…
'She took all the tablets and codeine. She had a rope around her neck through the hatch. I went up the deck, up forward. I climbed down the steps. She was blue and pale. She had the gun. I was frightened with what she was doing.'
I then said, 'Are you saying you shot her?' and when I asked that question it was in reference to Avril. Mr Whitsed replied, 'All I saw was her eye hanging out and the dog sniffing her eye.' At this point in time I cautioned Mr Whitsed.
LONGDEN, MS: What did you say?---I told him that he wasn't obliged to say anything unless he wished to do so, but whatever he did say would be taken down in writing and could be used in evidence in court. I asked him if he understood that. His reply was, 'Yeah. I didn't mean to shoot her but it just happened. I didn't mean to kill Avril.'
...
I then said, 'What happened to Alahna?' Mr Whitsed said, 'I put both over the side at anchor. I cleaned them up, put them in a sleeping bag, then over the side.' "
76 It should be said that the evidence of Detective Sergeant Atkins was admitted in evidence pursuant to s 570D of Criminal Code (WA). It was accepted that it was evidence other than a videotape recording of the conversation and the learned trial Judge found there to be a reasonable excuse for there not being a videotape recording within the meaning of s 570D(2)(b) of the Criminal Code (WA). He further found that there were exceptional circumstances which, in the interests of justice, justified the admission of the evidence pursuant to s 570D(2)(c). The reason was that the conversation had been initiated by the appellant in circumstances
(Page 25)
- where the police went to the home of his mother on the understanding that there had been an accident on board the "Celt" in relation to which two people were missing. The learned trial Judge considered that it was not to be reasonably expected by the police officers that in the conversation by telephone that followed, the appellant would make admissions within the meaning of the section.
77 Prior to this ruling, counsel for the appellant stated that he had no objection to the evidence. He said:
"MAZZA, MR: The situation is that having taken instructions from my client, having considered the contents of Mr Atkins' deposition, having perused the notes and, in particular, because the contents of the notes were actually put to Mr Whitsed during the course of his interview on 31 August verbatim, I don't wish to make any submissions with respect to the application."
78 There was no challenge to the accuracy of the version of the conversation given by Detective Sergeant Atkins and, in particular, there was no suggestion that there had been any alteration of the Detective Sergeant's notes of the conversation. The highest it could be said that any challenge was made in relation to the notes of Detective Sergeant Atkins was cross-examination about whether or not the notes from which he read were a verbatim record of what the appellant had said in the conversation. The officer agreed that they were not verbatim but said that they were very accurate. He conceded that there may have been some slight errors in the process of taking notes when compared to what the appellant was saying. He said that having taken written notes, he went back to the police station and typed them so that they would be more legible. Some minor discrepancies between the handwritten and the typed notes were explored but nothing more. Extracts from the cross-examination of Detective Sergeant Atkins shows this:
"Just looking at the second point, the way that it was read to the members of the jury was, 'I've done something wrong.' Do you remember that's something in your typewritten notes? Just check that. The way in which it's actually written in the handwritten notes, is, 'I've done some wrong things.' Do you agree?---Yes, that's correct.
…
Would you then look at the third page of your notes, the handwritten notes?---Yes.
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- The way in which you read part of that page to the members of the jury concerning tablets and codeine was, 'She took all the tablets and codeine.' Do you remember that's what you read to the members of the jury?---Yes.
Do your handwritten notes read, 'She took all the tablets and codeine I kept'?---Yes.
So the words 'I kept' are not in the typewritten notes but they are there in the handwritten notes?---Yes.
…
In the typewritten version which you read to the members of the jury you said that he said the word 'yeah' in response to you administering the caution?---Yes.
In the handwritten version there is no word 'yeah'?---That's correct.
…
Can I now take you to the next page of the handwritten notes which is page 4?---Yes.
At the point where - I think what you read to the jury was, 'I wrapped her in the sleeping bag. The dog sniffed them - was sniffing them'?---Yes.
I think that's what you said, wasn't it? In your handwritten notes the word 'them' does not appear so it reads, 'I wrapped them in the sleeping bag. The dog was sniffing.' Is that how it reads in the notes?---Yes.
The word 'them' does not appear?---That's correct.
Just looking at that note, this is the handwritten note, as I said, I don't - your handwriting I think is difficult to read?---Yes.
The way - I can clearly see 'I wrapped.' The third word in that line looks like 'her' rather than them?---Yes, it does.
So in fact what you have said there is, 'I wrapped her in the sleeping bag. The dog was sniffing'?---Yes.
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79 In these circumstances, there was no question of the learned trial Judge exercising any discretion to exclude evidence. The issue never arose.
Ground 7
80 This ground contends that the learned trial Judge erred in law by directing the jury that "they may think of another motive".
81 The learned trial Judge's directions on motive were the standard directions given on this issue. His Honour pointed out that whilst the prosecution might prove a motive, there was no obligation upon it to do so. His Honour contrasted motive with intent and pointed out that it was very different. His Honour stressed that people can form an intention to do something without any particular motive. He said that it was possible for a person to determine to kill somebody without having a real motive and, further, that people can be killed without it being possible to know what the true motive was, even if there was one. His Honour then said:
"History abounds with violent crime which appears to be without motive. Nevertheless, if there is a motive or if there is no proved motive, they are circumstances that you can take into account in deciding whether guilt has been established. If there's a motive, that might help you toward a finding that guilt was established. If there's no motive, you would no doubt look more closely.
As you know, in this case the prosecution contends there were motives for each death. They needn't establish those. You may not be satisfied by them, you may think of another motive, or you may be satisfied of the elements that have to be proved even though you are not able to see there was a motive."
82 In this direction, the learned trial Judge was not telling the jury that they were at liberty to think of some motive other than that which had been contended for by the prosecution. His Honour simply pointed out that the jury might not be satisfied that the prosecution's contentions as to motive were correct. They might even consider that there was a different motive, or alternatively, they might be satisfied that the elements of the offences charged had been proven without there being evidence of any motive. All of this was unexceptional. His Honour was not inviting the jury to speculate or theorise as the appellant contends in the particulars to ground 7. I am therefore of the view that this ground has no substance.
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- Ground 8
83 This ground contends that the learned trial Judge failed to direct the jury properly in response to a question raised by the jury. The question was in the following terms:
"If we are having difficulty due to the lack of 'proof' of making a decision, as we find we are making a decision on what we think happened, is this flawed or is it correct."
84 The learned trial Judge responded by saying:
"You may only reach a decision on what you find to be actually established by the evidence. What you find to be actually established includes both the facts which are directly proved by the evidence and any inferences that you are able to draw from those established facts.
It is the combined effect of the facts directly established by the evidence and the inferences you can draw from those facts which together make the body of facts upon which you base your decision and your decision should only be based on that. You should not base your decision on conjecture or speculation or theories as to what might have happened or must have happened."
85 His Honour then turned to the possibility that the jury might be satisfied beyond reasonable doubt that the elements of the offences charged had been established even though the jury could not be satisfied precisely how one woman or the other died. His Honour said:
"You may not know precisely by what means the woman was killed but if you were satisfied that no matter how that woman was killed, she was killed by the deliberate act of the accused and that he intended to kill her at the time he did that act, then you could be satisfied of wilful murder even though you may not know precisely what that act was.
I have illustrated there wilful murder. The same would apply to murder or to manslaughter according to the elements of each of those offences. Keep in mind that it is those elements which must be established beyond reasonable doubt. There may be circumstances where you can't be precisely sure exactly what happened, but it may be that you could be sure that those elements were established.
(Page 29)
- If you were sure those elements were established, sure of that beyond reasonable doubt, then it would be proper for you to return a verdict of guilty in respect of whichever offence you were looking at even though you might not know precisely how the death occurred, but it would not be proper for you to return a verdict of guilty of an offence if you were not satisfied beyond reasonable doubt about those elements."
86 I am unable to find any fault in this direction. The learned trial Judge said all that could be said in response to the question which was asked of him. Insofar as his Honour said that the jury might be satisfied beyond reasonable doubt that either wilful murder, murder or manslaughter had been proven and yet it was not known precisely how one or the other woman died, his Honour was undoubtedly correct: see Greer v The Queen, unreported; CCA SCt of WA; Library No 960120; 6 March 1996 per Pidgeon J at p 49 where his Honour said:
"As I see the law, it is open to conclude that if it were proved that a person did the act to cause the death followed by disposing of the body so it is not recovered and with nothing else being known, he can be convicted of murder."
87 After referring to various cases, his Honour added at p 53:
"The approach in these cases indicate that if there is no trace of a body then it is open on circumstantial evidence, subject to the direction to which I have referred, to conclude that there has been death. The next factor that appeared, from these cases, not in doubt was that if an accused person was proved to have killed the deceased and destroyed the body, the verdict of murder is open. The crime of murder, at common law, is committed where a person kills with intent to kill or cause grievous bodily harm (Archbold 1994 ed 19-2)."
88 I can see no substance in ground 8.
Ground 9
89 This ground contends that the learned trial Judge erred in his directions to the jury by "presenting speculative assumptions that the accused made no attempt to use either the radio or beacon aboard the vessel the 'Celt' at the time of the alleged offences".
90 The learned trial Judge did make mention of the failure of the appellant to notify anybody of what had happened to the two women
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- immediately after their deaths. His Honour was then summing up the prosecution case. He said:
"The two women died. The accused very quickly disposed of both bodies by putting them into the sea. He first weighted both bodies. The waters were strongly tidal, substantially opaque and infested by saltwater crocodiles and sharks.
The accused made no attempt to notify the authorities or to obtain assistance. He had both high frequency and very high frequency radios and an emergency beacon. The radios were in working order. He made no attempt to use either radio or the beacon."
92 In any event, the appellant had admitted in an interview with Detective Sergeant Jenal on 21 September 2001 that he had made no attempt to use the radio on the "Celt" to contact anybody after the deaths. He admitted that the VHF radio was working. The relevant questions and answers in the interview are as follows:
"Q. Do you agree though that your HF radio when you're travelling to remote areas such as the Kimberleys is a fairly vital piece of equipment for you, safety equipment?
A. Yes, I do.
Q. And you also --
A. I have VHF which --
Q. It's only a short range
A. It would be a short range but it has -- it is commonly used in the area.
Q. Was there any reason why you didn't utilise your VHF to contact anyone?
A. As to - ?
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- Q. An attempt to get help as a result of the deaths of the two women?
A. No. There's -- it's no -- no logical reason. As I said. I sat there and I have the mike in my hand and I just was freaked out."
93 The learned trial Judge did tell the jury that the appellant had said in his interview that his HF radio had been giving him trouble but added "I do not understand from what he told the police that he said he ever tried to use either radio". His Honour added:
"If you accept that the accused disposed of the bodies and/or delayed notifying the authorities for some reason other than a realisation of guilt, then you should not use that conduct as evidence of the guilt of the accused."
94 In particulars annexed to ground 9, the appellant refers to evidence at trial that the emergency position beacon unit on the "Celt" had indicated a failure when tested by a radio surveyor in Darwin.
95 Robert Joseph Stroud was called by the prosecution at the trial of the appellant. He was the proprietor of Navcom Electronics in Darwin and was trained in the maintenance of marine electronics in marine communications equipment. He was a qualified radio surveyor who had worked in the area for some 28 years.
96 On 4 September 2001, Mr Stroud was requested by a Detective Sergeant to go to the Cullen Bay Marina in Darwin and carry out a radio survey on the "Celt". He first examined the HF radio which he described as a radio for long-range communications. He was asked to check whether the radio was operational. He switched on the unit and tuned to the appropriate frequency and put a call through to Perth radio. They answered immediately. The transmission was clear and of good commercial quality. The radio operator in Perth told him that his signal was 100 per cent readable and of good commercial quality. He examined the radio and was unable to detect any problems with its installation. Further examination revealed a synthethiser unlock condition which Mr Stroud described as a fault condition reflected as a fault indication on the display to say that there is a problem. It was apparently a common fault with the particular equipment, which could be rectified by simply unplugging the board and plugging it back in or, alternatively, identifying by pressure on the board in some areas to find the problem and then reinserting the board two or three times to correct it. According to
(Page 32)
- Mr Stroud, after doing this, the radio would be quite good and operational for many months or years without it occurring again. It was said to be common knowledge amongst marine people that this was all that was required.
97 Mr Stroud then checked the VHF radio which was used for short-range transmission and receiving. Given the height of the antenna installation on the "Celt", Mr Stroud expected that the VHF radio would have had a range of 35 to 70 kilometres. The radio was tested by contact with the coast station in Darwin. It was found to give a 100 per cent clear and full commercial quality signal at each end. The radio was checked in detail to see if there was any problem or abnormality and there was none.
98 Mr Stroud also examined the EPIRB unit on the "Celt". This was the emergency position indicating radio beacon. The unit indicated a failure. The indications were that the battery had failed, but the unit was in reasonable condition. The purpose of the EPIRB was an indicator of distress on a yacht. Mr Stroud described its primary purpose "to be activated if there's a vessel in an emergency".
99 When the learned trial Judge told the jury that the appellant had made no attempt to notify the authorities or to obtain assistance after the deaths of the two women, he was correct. The appellant had admitted to Detective Sergeant Jenal on 21 September 2001 that he had made no attempt to contact anybody on the "Celt's" radio and that it was in working order. The learned trial Judge told the jury that the "Celt" had both high frequency and very high frequency radios and an emergency beacon. He stressed that the radios were in working order, but no attempt was made to use either radio or the beacon. The directions were correct. It was, in my view, unnecessary to deal with Mr Stroud's evidence. The evidence had indicated that both radios were in good working, although there was a latent fault in one. The battery which supplied the beacon was faulty, but the beacon was to be used when a yacht was in distress. This was not a situation where the yacht was in distress, but rather one where radio contact might have been expected. I can see no substance in ground 9 either as the ground is formulated or as particularised.
Ground 10
100 This ground contends that the prosecutor "adduced into trial before the jury prejudicial, unqualified opinion evidence in relation to long distance sailing – coastal cruising and ocean sailing that should not have been before the jury". Seven particulars are given in support of this ground suggesting that the prosecutor made various observations about
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- the "Celt" which were expressions of opinion and prejudicial to the appellant. It is complained that no qualified expert witness with ocean sailing experience was called by the prosecution and "therefore the unqualified opinion evidence of the Crown prosecutor had blemished the trial and misled the jury to what the true evidence is in relation to ocean sailing and navigation".
101 In oral submissions at the hearing of the appeal, the appellant relied primarily upon particular 10.5 which contends that the prosecutor adduced evidence before the jury that Avril Croft was in control of the "Celt"at the time the coast watch took a photograph which revealed Mrs Croft on the vessel with a hand on the helm. The appellant contended that this was inconsistent with other evidence.
102 What the appellant was saying was that the prosecutor put to the jury that Mrs Croft was in control of the vessel when it was photographed by a coast watch aircraft shortly after it had left Darwin. This photograph appears to be Exhibit 3. It shows two women at the stern of the "Celt" and there is no sign of a third person. Of the two women, one (who appears young and is presumably Alahna) is in a bikini and standing away from the helm. It must, therefore, have been Avril Croft who was standing at the helm.
103 The appellant's point was that the prosecutor's reference to Avril Croft being in control of the vessel may have led the jury to believe that she was an experienced navigator, whereas he had told investigating police that he navigated the vessel at all relevant times. This was said to reflect on the appellant's credibility, because the jury may have doubted his credibility on this issue.
104 The appellant contended that there was no evidence that Avril Croft was an experienced navigator. However, John Leslie Simpson gave evidence that Avril Croft was an extremely competent sailor. He said:
"She was an extremely competent sailer. We went out on The Moonsun with her and her and Alahna sailed the yacht. We knew - although we did not know Avril previous to 93, we knew that she had been involved in many sailing expeditions, cape to cape, and an extensive sailing around New Guinea, Fiji and the Pacific Islands."
105 In cross-examination, his evidence was elaborated as follows:
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- "You gave evidence that Avril Croft was, to use your words, an extremely competent sailer. You said that you had been out on The Moonsun with her?---Yes.
Was that on day trips or was that on cruising trips more than a day?---It was - no, no, just a few hours.
The opportunity that you had to observe her competence as a sailer was during those trips for a few hours from day to day?---That is correct.
When you said that she had sailed cape to cape and other places such as New Guinea, the basis of your knowledge of those trips was what Avril had told you?---Yes, and also newspaper clippings.
She showed you clippings of where she had been, for instance?---Yes, and we have those clippings.
As to who else was on the boat on those various voyages, what she did on those various voyages, do you have any personal knowledge of those things?---Just from reading through from her belongings when they came down to us, reading through - scanning through logbooks and things like that.
I see?---I remember once she wrote that she fell off a yacht in high seas and was lucky to be roped to the yacht.
By somebody else, presumably?---Yes.
You said that she was a competent skindiver. Do you have any personal knowledge of that as opposed to what Ms Avril Croft told you?---No, I don't have any personal knowledge."
106 Much of Mr Simpson's opinion about Mrs Croft's experience was based upon what he had read and heard, but there seems to be no dispute that Mrs Croft had been involved in many sailing expeditions including sailing around New Guinea, Fiji and the Pacific Islands.
107 In these circumstances, it was open to the jury to conclude that Mrs Croft was well experienced in the sailing of a yacht which would have included the navigation of it. Although the appellant told investigating police that he was the navigator of the "Celt", I am at a loss to see how the prosecutor's reliance on anything that Mr Simpson said could have thrown into doubt the credibility of what the appellant had told
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- investigating police on this issue. There was no reason for the jury to conclude that the appellant was untruthful in what he said about his role as navigator on the "Celt". It was quite consistent that he took the responsibility for navigation of the vessel but Mrs Croft was a very experienced sailer, presumably experienced also in the art of navigation.
108 No specific complaint was made by the appellant about anything the prosecutor had said about ocean sailing. The Court was not referred to any particular passages in the evidence about which complaint was made other than the reference to the photograph which revealed Mrs Croft at the helm of the "Celt" shortly after it left Darwin. In my view, that photograph said nothing about the question of who was responsible for the navigation of the vessel. I have checked the prosecutor's final address to the jury, and the only reference I could find to "ocean sailing" was a reference to Mrs Croft's skill as a yachtswoman. As to this, the prosecutor said:
"The accused man had told Detective Atkins that Mrs Croft had locked herself in the room and said, 'I'm going tomorrow for good. I've had enough of the arguing.' He slipped up there because that's exactly what the crown says happened. This lady was telling Garry Whitsed that she had had enough of his arguing with her and her daughter. Truscott air base was a day or so's sail away and implicit in what she said there was that the accused would be getting off at Truscott and she was going with Alahna for good back to Darwin.
So all of a sudden the man who told Mr Swinstead that he was going to be in charge of the boat on this trip had now been made redundant. Avril Croft did not need the accused to complete the final part of this journey from Truscott. Indeed, if necessary, she could have sailed this yacht back from there to Darwin. She had apparently sailed in many expeditions and, as Mrs Fewins described it, her friend of over 30 years, page 156 of the transcript:
She was an extremely capable yachtswoman; very capable in all ways, but she was a very good yachts person. She could handle a yacht fairly well on her own, a small yacht.
But in this case Mrs Croft would have had all the charts that the accused had marked on the trip down the coast. All she had to do was follow the course in order to return back to Darwin
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- safely. She did not have to navigate, therefore, and indeed she did not even have to use the sails. She could have motored the entire way back to Darwin just like the accused had done.
The accused sought to play down Avril Croft's yachting ability for obvious reasons. He couldn't very well say that she was quite capable of sailing the yacht back to Darwin because to do so would cast considerable doubt on his version that she was so distraught about him leaving the yacht that she committed suicide. There's another problem for the accused. What he didn't know when he spun the story to police was the existence of these two photographs taken in open waters on 23 April of 2001. It's exhibit 3. What these photographs show, the crown says to you, is that it's not the accused at the helm.
Those two people there at the helm, the crown says, are two females; not a male and a female. It's Avril and Alahna, both in control of the yacht whilst it's out on open waters. As you can see, there are no sails. It's motoring."
109 There is nothing objectionable in this observation, and I am therefore unable to find any substance in ground 10.
Ground 11
110 This ground contends that the prosecution failed to disclose material relevant to its case against the accused. The material consists of a photograph taken by a coast watch aircraft which showed a drum on the rear of the "Celt". This photograph was adduced at trial and it is contended that it had not been filed and served on the appellant pursuant to what was then s 611B(1)(d) of the Criminal Code. That section, which was in operation at the time of the appellant's trial, required the prosecution to file and serve on the appellant a copy of every document or exhibit that it proposed to adduce at trial, or if it was not practicable to copy the document or exhibit, a description of it and notice of where and when it could be inspected.
111 This ground is unsupported by any particularisation of the exhibit in question. However, exhibit 10 was a photograph of the "Celt" which clearly showed a drum at the rear of the vessel
112 No complaint was made at trial by counsel for the appellant that there had been any failure to disclose the existence of any exhibit. Typically, counsel for an accused person would be at liberty to make an
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- appointment with the case officer at the Office of Director of Public Prosecutions to inspect all photographs held by the Director in relation to a particular trial. Counsel for the respondent was able to inform the Court that he personally saw the appellant's counsel inspecting exhibits at the office of the prosecution prior to the time. This evidence was received from the Bar table. There is no affidavit evidence to suggest that exhibit 19 was not sighted by counsel for the appellant.
113 Evidence at trial revealed that two drums of fuel had been acquired at Cockatoo Island. A deposition of Robert Leslie Strange made the 14 June 2002 was, by consent, read into evidence. He recounted how he had been working on Cockatoo Island in July/August 2001 when a yacht by the name of the "Celt" arrived at the island and he met the crew. The yacht stayed at Cockatoo Island for about a week before leaving for Silver Gull Creek which was about 8 miles from Cockatoo. It came back from time to time for the day. Towards the end of the vessel's stay at the island, the appellant obtained diesel fuel. He took about 340 litres of diesel in two 44-gallon drums. The drums were said to be Shell drums and grey in colour. They were put on to the vessel and shortly afterwards, it left Cockatoo.
114 Although the appellant, in the course of his oral submissions to the Court, contended that there was only one 44 gallon drum of fuel on board the vessel, it appears that there must have been two. In any event, the photograph exhibit 19 which shows a drum at the rear of the vessel was consistent with the evidence of Mr Strange.
115 There is therefore nothing in ground 11.
Ground 12
116 This ground contends that the view of the "Celt" ordered by the learned trial Judge was unsatisfactory or incorrectly conducted. There are six particulars of the alleged shortcomings in the viewing of the "Celt". Summarised, they are as follows:
1. There was not an identical replication of the vessel as it was at the time the alleged offences occurred.
2. There had been various alterations and changes to the vessel and "unlawful removal of numerous items" which "tainted" the crime scene.
3. The forward main cabin hatch surround wood had been refastened and recoated; there had been changes to the rigging; removal of a
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- stereo/CD stacker; removal of the auto pilot from its original location; removal of some 12-volt fans; removal of a 240-volt airconditioner; removal of navigation equipment and replacement of mattresses and bedding.
- 4. A camera and film from the "crime scene" were missing; a TV/video combination and fishing equipment had been removed and carpet taken from beneath the dining table.
5. Regular repairs and maintenance had been done on the "Celt" from early 2002 which was 18-20 months before trial.
6. The new owner of the "Celt" had not specified precisely what alterations or repairs had been done to the vessel.
117 It will be seen that many of these particulars overlap, or are repetitive of each other. Further, many of the particulars appear to be new contentions on the part of the appellant. There was no evidential basis for many of the assertions made in the particulars about the removal of some items of equipment from the vessel. No application was made to adduce fresh evidence, nor on the face of it could any such application have succeeded, as it must have been known at the time of the view of the vessel what condition it was in.
118 The appellant participated in the view. He was represented by experienced counsel. If there was a problem with the state of the vessel, it was for counsel to raise it with the trial Judge. No issue appears to have been taken about it. In any event, even if some items had been removed from the vessel, the list of those referred to in the particulars to ground 12 does not suggest that any item of equipment relevant to the issues at trial was no longer on the vessel. The particulars do not indicate how or why any items said to have been removed from the vessel affected the outcome of the trial process.
119 The proper function of a view during a trial was discussed in R v Polykarpou (1985) 18 A Crim R 288 by Street CJ at 290. His Honour pointed out that a view during the course of a criminal trial is not part of the evidence at trial:
"I have mentioned what I regard as a misapprehension of the function of a view. The court has been referred to some English decisions in which comments are to be found that the view forms part of the evidence. In this country, however, the law is laid down in clear and unequivocal terms by the High Court in Scott v The President, Councillors and Ratepayers of the Shire
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- of Numurkah (1954) 91 CLR 300. In the joint judgment of the Chief Justice and three other justices a statement of the law by Davidson J in Unsted v Unsted (1947) 47 SR (NSW) 495 was quoted with approval. In his separate judgment Fullagar J likewise affirmed the validity of the statement by Davidson J. It is not necessary to quote in full the extract set out in the High Court judgment on 313, one sentence will be sufficient:
'In a general form the rule is that a view is for the purpose of enabling the tribunal to understand the questions that are being raised, to follow the evidence and to apply it, but not to put the result of the view in place of evidence'."
"Mr Foreman and ladies and gentlemen, we are, as you know, heading off this morning to look at The Celt. There are a few things I would like to say to you about that. The purpose of viewing the yacht is to enable you to better follow the evidence. Seeing something in three dimensions is often much clearer than looking at plans and photographs. With that assistance it's hoped that it will generally enable you to better understand the evidence and better understand the issues in this case.
You shouldn't put the result of the view in place of the evidence. The evidence is the primary thing. What you may see is just no substitute for that. This viewing is to help you understand the evidence, not to replace the evidence. Because of that, there are limitations on what you should do. There's often a tendency to become your own Sherlock Holmes. It's not a time for you to conduct experiments as to how things might possibly have happened and so on. Rather, it's a time for you to look at what you have been hearing about and see whether that helps you understand what you have heard better."
121 His Honour went on to explain that certain things would not be on the vessel, including the rifle. It would, however, be possible to see the "help, help" sign on the vessel. This appears to have been a note left on the vessel by the appellant.
122 The "Celt" was moored at the water police facility in North Fremantle and the jury were taken there under the care of sheriff's officers. His Honour indicated that the jury should view, firstly, the
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- foredeck of the yacht including the mast and rigging, the main sleeping cabin, the second sleeping cabin and the rear saloon or lounge. His Honour pointed out that a boarding ladder that was originally housed in the rear saloon and went up through the rear hatch onto the deck was no longer in that position. His Honour said:
"Please bear in mind that it's now over 2 years since the relevant events. The condition of the yacht and of its contents have naturally changed in that time and you've heard some evidence from the present owner about that, so things aren't exactly as they were when these events happened."
"PARKER J: Be seated please. We have a problem temporarily, I hope; no recorder. I think it might be best if I adjourn while we - coming. I would record for the transcript that the members of the jury viewed The Celt this morning. Counsel and the accused were present. Because of the physical limitations of the vessel, the members of the jury were divided into three groups. I escorted each group.
The members of the jury were invited to view the matters identified by me for the transcript immediately before the adjournment this morning. In addition to those matters, the jurors were also invited to view the gun safe in the forward storage locker, this being a matter raised by the first group to view. For the same reason the jurors were also invited to view in the wheelhouse the chart table, the two radios and the global positioning system.
In the main sleeping cabin, bed 1, I confirmed that it was the hatch in the roof of that cabin which the accused identified to the police as the hatch through which he had lifted the body of Avril Croft on to the deck. That was in response to a question. I did not need to repeat that for the second and third groups as each made their own correct identification of that hatch. A few other questions were asked raising evidentiary matters, but these remained unanswered."
124 The learned trial Judge's directions in relation to the view of the "Celt" were entirely in accordance with authority and there can be no suggestion that the view was not satisfactorily or correctly conducted.
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125 The evidence of Robert William Rennie, who purchased the "Celt" was that since he had owned the vessel, he had carried out regular repairs and maintenance, but had made no substantial alterations to it. The examination-in-chief of Rennie on the subject was as follows:
"Mr Rennie, I would like to ask you a few questions about the yacht The Celt. In the time that you've owned the vessel, have you simply carried out regular repairs and maintenance to it?---I have.
Have you made any substantial alterations to the structure of it?---No."
126 Mr Rennie was asked what changes he had actually made and he indicated that he removed the stove without replacing it. He replaced cushions and mattresses in the saloon area, galley, cabins and wheelhouse, replaced the two mattresses on the bunks, removed stickers that were on the walls and ceiling, and removed a door to the bathroom which was on the yacht, but not refitted. Apart from these changes, he had not otherwise made any substantial alterations to the "Celt".
127 Mr Rennie was only briefly cross-examined by counsel for the appellant. He was asked about the nun's hat which he had earlier described as a piece of equipment used to put over an open hatch to direct fresh air into the boat. Nothing really turned on the cross-examination. Certainly no questions were put to suggest that there had been any fundamental alterations to the vessel which would in any way have affected the issues at trial.
128 There is therefore absolutely no substance in ground 12.
Ground 13
129 This ground contends that the evidence of the forensic pathologist, Dr Margolius, was "unreliable and introduced speculative scenarios that should not have been presented to the jury". Four particulars are given:
1. Dr Margolius's opinions were flawed because she viewed an "altered tainted, unreliable crime scene".
2. Dr Margolius gave evidence based partly on unreliable reports.
3. There was a degree of bias on the part of Dr Margolius.
4. The prosecutor "engaged in improper conduct with the accused's defence counsel prior to trial" by presenting some evidence which
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- was contrary to that of Dr Margolius in relation to the colour of the deceased, Avril Croft.
130 The evidence of Dr Margolius at trial was expert evidence. She expressed opinions which were clearly admissible. As early as 1911 in Mason v The Queen (1912) 7 Crim App R 67, Lord Alverstone CJ said that evidence of an expert is admissible in a criminal trial notwithstanding that the expert may not have seen the body, but had only heard evidence of those who had seen it. That was the situation in the present case, where the appellant in his statement to investigating police had given descriptions of the appearance of the deceased, Avril and Alahna Croft, after, or in the case of Mrs Croft immediately before, their deaths. In R v Middleton (2000) 114 A Crim R 258, Anderson J (with whom Kennedy and Wheeler JJ agreed) said of expert evidence given by Dr Margolius in another trial, at [19] and [21]:
"I would have thought that a forensic pathologist who is allowed to give and gives uncontested evidence that she is skilled in examining and interpreting wounds has qualified herself - prima facie, at any rate - to express an opinion as to how the wounds came to be made by reference to the nature of the wounds, their severity, their juxtaposition, their location on the body of the victim and their pattern. The reception of this type of opinion evidence is not without precedent. In Mason (1911) 7 Cr App R [sic] 67 a surgeon was allowed to give evidence that a fatal stab wound was not self-inflicted.
…
On the face of it, therefore, Dr Margolius was an expert called to give evidence on a matter calling for her expertise and within the field of her expertise. The qualification and competency of witnesses to give opinion evidence as an expert is primarily for the court of trial as a question of fact. A court of appeal will be slow to reverse the decision to admit the evidence: Bratt v Western Airlines 166 ALR 1061 (1946) [sic] at 1067; Clark v Ryan (1960) 103 CLR 486 at 503 [sic] per Menzies J."
131 In Velevski v The Queen (2002) 187 ALR 233, Gummow and Callinan JJ at [153] – [160] held that expert medical witnesses are able to give evidence in relation to the question whether wounds were self-inflicted. At [160] their Honours said:
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- "Medical doctors, and pathologists in particular, are well capable therefore of processing specialised knowledge enabling them to offer informed opinions as to the infliction, self or otherwise, of injuries. Their experiential knowledge of the pathology of blood, tissue, bone, and additionally, of the way in which vulnerable parts of the body may be reached with weapons would, on that basis as well, qualify them to express an opinion on this matter."
132 All of the above passages are relevant to the present case. The evidence of Dr Margolius was clearly admissible as expert evidence. Her opinions in relation to the possibility that Avril and Alahna Croft died, respectively, in the way described by the appellant in interviews with the investigating officers was admissible. There is nothing to suggest that the "crime scene" inspected by Dr Margolius was tainted, nor is there anything to suggest that she gave evidence based on unreliable reports or was biased.
133 Particular 13.4 was expanded by the appellant at the hearing to really be an assertion that the prosecutor and defence counsel had conspired together to ignore what was said to be an inconsistency in relation to Dr Margolius' evidence. This contention was based upon a facsimile which the appellant sought to put in evidence at the hearing of the appeal but which was not accepted. It was a note from the prosecutor to defence counsel enclosing a further report from Dr Margolius. The note was dated 4 July 2003 and the prosecutor concluded the note by saying:
"I have picked up 1 error re: the accused's description of Avril Croft. The report says 'I would have expected him to report …. blue - purple change.' He actually did describe her appearance as 'blue' (see p4 of 1.9.01 VROI)."
134 I referred earlier in these reasons to the evidence of Dr Margolius that when people partially hang themselves, the face becomes very ruddy or red. She would have expected in the present case for Mrs Croft to have revealed a "red or ruddy or purply colour". The appellant had said to police that he found Mrs Croft on the bed "blue and pale".
135 The examination of Dr Margolius on the subject was as follows:
"Doctor, in the case where someone has hung him or herself, can you indicate, please, from your reading of the material as to what normally takes place if that person is found by someone who knows him or her?---Well, what most frequently happens if
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- a person is incompletely suspended, they usually will be in an area where the noose or the ligature around their neck is hanging up. If it's at the back of the neck, they are hanging when their face is forward and they're hanging forward so their neck is taking the pressure of the ligature and they're usually lolling forward, their head's coming forward and they are dead, and what we will see are certain features. We will see, because it's an incomplete suspension, the face will be very ruddy, very reddy appearance. You will see what we call petechial haemorrhages which are little pinpoint haemorrhages which are present from the level of the noose around their neck upwards. That's what we will see if they are incompletely suspended.
You've give a description of what their facial features would look like?---If it's incompletely suspended; as I say, very ruddy, congested as we call it, reddy, and you've got these little pinpoint haemorrhages. If they are completely suspended, that is, their feet are off the ground, the appearance is slightly different. They are pale and their tongues are usually protruding out.
A description then of a partial suspension of the face being drained, pale and blue, is that consistent or inconsistent with the type of facial features you would expect from a partial suspension?---No, that's more the complete suspension where the feet, buttock, entire body is not resting on something to take some of the weight."
136 In cross-examination, Dr Margolius was pressed about her description of the colour of the face to the following effect:
"All right. I was going to ask you about the colour purple. Certainly, a person who has hanged themselves in an incomplete suspension will often have a purply appearance?---Yes.
It can be a sort of purply splotchy appearance sometimes?---Yes, it can.
Purply pale appearance?---Not really. You're talking about - it's the opposite of pale, in fact. It's the complete opposite of pale.
Of course, it depends on what 'pale' means. It also depends on what 'purple means and maybe what 'blue' means, don't you
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- agree?---Yes. What we're talking about here is not going on to the lighter side of the face. In other words, if a person's complexion is light, it's going to be lighter than that. You're talking about a nice -- it's starting to become red and ruddy. It's the opposite, yes.
That's how you would describe it?---Yes.
Of course, other people may have different descriptions of colours?---Right.
You would have to concede that, wouldn't you?---Yes, I would have to."
137 It seems from the exchange in cross-examination that counsel for the appellant put to Dr Magolius and accepted by her that whatever her opinion on the colour of the face of a partially hanged person, there were gradations of "pale" and "blue" which meant different things to different people.
138 It does not appear that Dr Magolius was pursued in cross-examination about anything she may have said in the further report to which the prosecutor made reference when communicating with counsel for the appellant on 4 July 2003. Whatever the reason for this, it cannot be said that there is any evidence whatever of a "conspiracy" between the prosecutor and defence counsel. An assertion of conspiracy between counsel is a very serious allegation to make. Counsel for the appellant was very experienced in criminal law and any suggestion that he and the prosecutor may have conspired in some way to the detriment of the appellant must be rejected. I am unable to see any substance in ground 13.
Ground 14
139 This ground contends that the prosecutor adduced at trial an exhibit (exhibit 19 which was a "help" note) and suggested to the jury that one of the deceased was responsible for writing it when there was no evidence to that effect. The particulars of the ground say that there was no independent analysis of the note conducted by any handwriting expert.
140 Exhibit 19 was one of a number of exhibits collected by Constable Evans upon his search of the "Celt" on 29 August 2001. The only reference of the learned trial Judge's summing up to the topic appears to be in his summary of the defence case where reference was made to the submission of counsel for the appellant that in the circumstances of the
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- deaths of the two women (as explained by the appellant in his interviews with police), it was not surprising that he had been unable to bring himself to try to contact the authorities or seek help from another boat. His Honour added:
"Is it so surprising, it is submitted, that he should think of taking his own life in that emotional turmoil, hence, as he explains, the, 'Help, help,' sign and the instructions he left about sailing The 'Celt' and the letter to his mother, each of which you have."
There does not appear to be any other reliance upon the so-called "help note".
141 The evidence of Constable Evans in relation to the note was that he inspected the contents of a cupboard on board the vessel and found a note on which were written the words "help, help". The relevant extract from his evidence is as follows:
"Then you've opened the cupboard, have you?---That's correct.
On opening it, take us through what you saw then?---Upon opening it I saw that there was a packet of Bi-Lo crispbread. On top of the crispbread was a - I could see some sticky tape and a note. Having taken the note out and placing it down, the next photograph shows what is on it, 'Help, help.' On the underside of this tape is blue, which can be just seen on the top of the Bi-Lo crispbread.
On what side was the adhesive to that tape?---The adhesive is on this grey side that we can see.
The same side as the writing, 'Help, help'?---The same side as the writing.
After photographing that in situ and then taking it down and photographing it, was that subsequently seized?---That's correct."
142 Reference to exhibit 19 reveals that the "help note" was approximately 16 centimetres by 10 centimetres in dimension. It had the words "help" in block letters above each other, with the "help" at the foot of the note, larger than that above it. The words appear to have been written in black marker pen.
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143 The prosecutor in his opening, made these observations about the note:
"What's of interest is what was found in that cupboard. That note there was on top of a packet of biscuits. Now, the adhesive tape affixed to this paper was such that the sticky side was on the same side as the writing. This means that it could be affixed to the inside of a window, so someone on the outside would be able to read what the note said. That's the actual note.
When the police [sic] was asked about this note a couple of days after it was found he told the police that he wrote that note after the deaths of Avril and Alahna. He described that he was planning to stick it on one of the yachts portholes before he was going to kill himself. That was so that anybody who happened to be passing by in a yacht after he killed himself would see it and then hear the dog barking and stop and investigate, thereby being able to rescue the dog.
That was the accused's explanation for that note. It's a matter for you to decide ultimately what weight you attach to that explanation, but if that note was actually written for the purpose of having the dog rescued after the accused had killed himself the crown would say it would have been far easier for him to have made a radio call and given the yacht's position to someone before he killed himself."
- It does not seem to have been suggested by the prosecutor that one of the deceased was responsible for writing the note. I am therefore, unable to see any substance in ground 14.
Ground 15
145 This ground has no substance because the learned trial Judge told the jury early in his summing up that the verdict of the jury was to be reached on the evidence and not on anything they heard outside the Court. The direction was in standard form and to the following effect:
"It is your responsibility to decide what are the facts and then to reach your verdicts on the evidence that has been given in this court as well as the view you have had, and not on anything
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- else. You should put out of your minds altogether anything that you may have heard or read about this case at any time either during the trial or before. Your minds should consider only the evidence that you have had in the course of this trial."
146 In my view, there is no substance in any of the grounds of appeal relied upon by the appellant and I would dismiss this appeal.
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