Wilson v the Queen

[1970] HCA 17

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Menzies, Owen and Walsh JJ.

WILSON v. THE QUEEN

(1970) 123 CLR 334

17 June 1970

Criminal Law

Criminal Law—Murder—Evidence—Admissibility—Statements made by deceased wife charging accused with desire to kill her—Possibility of prejudice—Judge's discretion—Cross examination of accused about previous accidental death in family—Whether breach of ruling excluding evidence of death by shooting of accused's first wife.

Decisions

June 17.
The following written judgments were delivered:-
BARWICK C.J. The applicant was convicted before the Supreme Court of Victoria on 24th November 1969 of the murder of his wife on 13th March 1969 and sentenced to death by that Court. He now applies to this Court for special leave to appeal against his conviction on three grounds - (i) that evidence of statements by his wife that she knew he wanted to kill her were inadmissible, (ii) that, if contrary to his submission, that evidence was admissible, it ought none the less to have been rejected by the trial judge in the exercise of his discretion to exclude evidence unduly prejudicial having regard to its evidentiary significance in the trial and (iii) that the jury ought to have been discharged because the Crown Prosecutor had in cross examination either transgressed a ruling of the judge or had asked questions designed or at least calculated to remind the jury of highly prejudicial press publicity current at the date of the applicant's committal for trial. (at p336)

2. The applicant's wife died of gunshot wounds received by her whilst she was driving a tractor drawing a load of hay during the hours of day on a property in Victoria which the applicant was managing. The applicant had borrowed a shotgun from a neighbour, as he claimed in his evidence, for the purpose of shooting rabbits. On the day of his wife's death he had placed the rifle on the top of the load of hay. He claimed that he had set the safety catch on the gun by pushing it forward. In fact this action released the safety catch: but the applicant denied that he knew this. He claimed that he had not discharged the gun but that it had discharged accidentally, perhaps when a dog had jumped upon the load of hay. There were no eye witnesses present. The contest at the trial was as to whether the applicant, admittedly present at the time, had shot his wife in the back of the head or whether the gun placed on the load of hay had accidentally discharged at a time when it was pointing towards the back of her head, the jury having of course to be satisfied beyond reasonable doubt that the applicant had discharged the gun before they could convict. (at p337)

3. The fundamental rule governing the admissibility of evidence is that it be relevant. In every instance the proffered evidence must ultimately be brought to that touchstone. The evidence of which the admissibility was challenged on behalf of the applicant consisted of accounts given by witnesses who had heard the utterances to which they deposed. There were two occasions on which a witness spoke of a then current quarrel between the applicant and his wife. In respect of the earlier of these occasions, said to have taken place in Tasmania in 1967, a witness stated that he heard the quarrelling though the parties were not within his sight and that he specifically heard the deceased arguing and say to the applicant, "I only know you want to kill me for my money". In respect of the later of these occasions, said to have been in the month of March 1968 in Tasmania, a witness said that the applicant in the course of a quarrel with the deceased in the presence of others besides the witness, pushed her to the ground for no other reason than that she had not desisted from rubbing the duco of her motor car when he had told her to stop doing so. Whilst on the ground the deceased according to the witness had said "I know you want to kill me, why don't you get it over with". On the first occasion the witness did not hear any reply by the applicant and on the latter occasion the applicant made no reply. (at p337)

4. It is quite apparent that the nature of the current relationship between the applicant and his wife was relevant to the question to be decided by the jury. Evidence of a close affectionate relationship could properly have been used by the jury to incline against the conclusion, which might otherwise have been drawn from the circumstances, that the applicant killed his wife. Equally, evidence that there had developed mutual enmity could be used to induce the conclusion that he had killed his wife and that his story of an accidental shooting lacked credibility. (at p337)

5. It was submitted on behalf of the applicant that evidence of the relationship of the parties was only admissible in so far as it furnished evidence of a motive which the applicant might possibly have had to have killed his wife. In support of this limited admissibility of such evidence, reference was made to R. v. Munn (1930) NZLR 1017, at p 1029 ; Reg. v. Tsingopoulos (1964) VR 676 ; R. v. Barbour (1939) 1 DLR 65. (at p337)

6. Before making a brief reference to these cases, I should observe that we are not concerned here with the reception of evidence of prior acts in order to establish systematic conduct or to negative accident, a matter with which the court was dealing in R. v. Bond (1906) 2 KB 389 None the less the sentence in the judgment of Kennedy J. in that case from which I now quote whether or not so intended, is, as a statement of relevance, in my opinion, of universal validity and is not limited to any particular aspect of the relationship of which his Lordship spoke.

"The relations of the murdered or injured man to his assailant, so far as they may reasonably be treated as explanatory of the conduct of the accused as charged in the indictment, are properly admitted to proof as integral parts of the history of the alleged crime for which the accused is on his trial." (1906) 2 KB, at p 401

In this statement " the conduct of the accused" of which the relationship of the parties may be explanatory will not necessarily be limited to the act charged, as in this case, the act of shooting, but will extend, in my opinion, to any act of the accused the proof of which is itself relevant to the question whether the accused in fact did the act charged. Here the question was whether the deceased fired the gun. If he did, no other question remained. The relations of the parties, in my opinion, may be relevant to that fact. In R. v. Barbour (1939) 1 DLR 65, at p 66 evidence of quarrels which were no more than "transient ebullitions of annoyance and anger on the part of the accused which immediately passed away and led to nothing" and which did not proceed from hostility or enmity nor tended to show the existence of or to promote such feelings were ruled inadmissible. Sir Lyman Duff C.J. said:

"If you have acts seriously tending, when reasonably viewed, to establish motive for the commission of a crime, then there can be no doubt that such evidence is admissible, not merely to prove intent, but to prove the fact as well. But I think, with the greatest possible respect, it is rather important that the courts should not slip into a habit of admitting evidence which reasonably viewed cannot tend to prove motive or to explain the acts charged merely because it discloses some incident in the history of the relations of the parties." (1939) 1 DLR, at p67

If the words "or to explain the acts charged", which are to be found in the latter part of this quotation were inserted as they may well have been intended to be, after the word "motive" in the earlier part of the statement, I would respectfully agree with what the learned Chief Justice said: but otherwise I am unable to accept the limitation on the admissibility of the evidence which the learned Chief Justice's words if not so expanded would seem to imply. Here the question is not whether a motive or some particular intent can be found or assigned for or in connexion with a killing but of choosing between the competing views in point of fact of accidental discharge of the gun and its discharge by the act of the accused. (at p339)

7. No doubt in the text books it is the inference of motive which is said to be open on evidence of bad feelings between the parties or of the terms on which they have lived. See Hale, Pleas of the Crown, vol. 1, p. 451, Halsbury's Laws of England, 3rd ed., vol. 14, par. 491, Phipson on Evidence, p. 151. But it is clear that such evidence may also provide material on which the fact of the killing may be inferred. See for example per Lord Atkinson in R. v. Ball (1911) AC 47, at p 68 ; per Sir Lyman Duff (1939) 1 DLR, at p 67 It is not in my opinion only in those cases where the evidence of the relations of the accused with others tends to establish motive that it is admissible though that may be the commonest case of its use and the one with which the reported cases have had mostly to deal. If the evidence does tend to explain the occurrence, or, as in this case, to assist the choice between the two explanations of the occurrence, then in my opinion on general principles, because it is relevant, it is admissible. Of course if it does not have that relevance it is inadmissible. Of that kind was the evidence in R. v. Barbour (1939) 1 DLR 65 It is not that all evidence of the relationship of the parties is admissible, but only that from which a relevant inference may logically and reasonably be drawn. Here, there is no question of the remoteness in point of time of the occasions of which evidence of quarrelling was tendered and the time of the act charged, as was the case in Reg. v. Tsingopoulos (1964) VR 676 Here the evidence was of quarrelling and bad relationship over a considerable period stretching up to the time of the death of the deceased. In my opinion, the evidence of the relations which had developed between the applicant and his wife was admissible. (at p339)

8. But it was also objected that, whilst evidence of statements of the applicant indicating his attitude to the deceased and statments of the deceased which could be regarded as likely to create animosity in the appellant towards her would have been admissible, evidence of statements by the deceased as to what she considered the appellant's attitude to her to have been were inadmissible. It may at once be conceded that, if the statement attributed to the deceased had not been part of the evidence of a quarrel of a significant kind, the statement of her opinion of the applicant's attitude or intention towards her would have been inadmissible. cf. Reg. v. Bedingfield (1879) 14 Cox CC 341 But in this case the evidence of the statement was part of the evidence of a quarrel between the parties and, indeed, the words spoken in the course of that quarrel were indicative of the nature of the quarrel and of the levels which the mutual relationship of the parties had reached. It is impossible, in my opinion, to maintain the proposition that though the fact of quarrelling may be admissible, the primary evidence of the quarrelling, namely the words and gestures passing between the parties in the course of the quarrel, may not. Of course, care must be taken by appropriate directions to the jury to properly confine their use of such statements. Here the trial judge took adequate precautions in that behalf. In my opinion, the evidence of what the deceased said in the course of these quarrels between herself and the applicant was admissible. (at p340)

9. Then it is submitted that the evidentiary value of the evidence to which I have referred was relatively small and that the judge ought to have exercised his discretion to exclude the evidence because of the highly prejudicial effect that evidence of such statements by the deceased could have in the minds of the jury. It is quite true that the Crown had upon the other evidence it produced at the trial a strong case. But though there was a strong case, and evidence of other quarrels and indeed of threats to kill, the evidence of the quarrels in which the statements to which objection is taken were part of the evidence of the continuity of the quarrelling and of the depths to which the relationship of the parties, as husband and wife, had sunk. Of course, the deceased's statements were most damaging to the applicant but they were not merely prejudicial. There was no reason, in my opinion, to deny the prosecutor the benefit of the evidence. In my opinion, neither of the statements ought to have been excluded in the exercise of a judicial discretion. (at p340)

10. Lastly, there is an objection to certain cross examination by the prosecutor. It may be assumed for the purpose of argument, though in truth it was not formally evidenced before the courts below, that at the time of the committal proceedings which resulted in the presentment of the applicant there was a great deal of sensational newspaper reporting which was prejudicial to the possibility of a fair trial. This unfortunately is all too frequently the case. But a period of some four to five months elapsed between this unfortunate publicity and the trial of the applicant in the Supreme Court. No suggestion was made at the inception of the trial that the effect of this unwarranted and prejudicial publicity was so likely still to be operative that a postponement was necessary in the interests of a fair trial. (at p341)

11. The prosecutor at the time of the questions to which objection is taken had questioned the applicant about borrowing the shotgun from his neighbour and about the neighbour's evidence that he, the neighbour, had warned the applicant about, and had instructed him in, the use of the safety catch, evidence which the applicant denied. There followed this series of questions:

"Did you regard yourself as a person who should have a special reason for being careful with guns ? ---- Should I have special --- ? Yes ? ---- Yes. Well, if I put a gun on safety, I would say, well, that gun should not fire. Let me put this to you; you have known of other people who have been accidentally shot by guns, haven't you ? ---- I have heard of them, yes. Heard of them ? ---- Yes. That is all, is it ? ---- Yes. Haven't you ever had an accidental death in your own family by a gun discharging ? ---- Well, I don't know whether it was accidental or not. Well, tell us, in any event, you in your own mind have a reason for believing you should take special care with firearms. don't you ? ---- Yes." (at p341)

12. It is first said that this series of questions but particularly the question "Haven't you ever had an accidental death in your own family by a gun discharging ?" were asked in breach of the trial judge's earlier ruling as to the admissibility of evidence of the circumstances of the death of an earlier wife of the applicant claimed by the Crown to come within the ruling of Makin v. Attorney-General (N.S.W) (1894) AC 57 as evidence of a similar act. That is to say, the Crown had sought to prove that the applicant had killed his former wife in circumstances in which he claimed that her death by rifle shot had been accidental. The judge in a discussion which took place before the evidence was in fact tendered ruled that such evidence was inadmissible. The actual terms of the ruling are not included in the material before us. We are asked to surmise them from the tenor of the discussion between the judge and counsel which is recorded in the transcript which forms part of the book filed in support of the application for special leave. But I am unable from that material to be satisfied of the precise terms of the ruling: and in any case, the transcript shows that the trial judge was watching the proceedings very closely at the relevant time and that he did not regard the above quoted questioning as in breach of any ruling he had given. (at p342)

13. However, it is further submitted that the questioning, even if not initiated for that purpose, was calculated to excite in the minds of such of the jurymen as had read the sensational reporting of the committal proceedings memories of the newspaper headlines published at that time and of the imputation which those headlines had carried. But, in my opinion, the questions, so far from suggesting complicity of the applicant in the death of his former wife, accepted that the discharge of the gun to which the questions referred was accidental and merely afforded a reason for care on the part of the applicant in handling the gun in the present case. Further, it seems to me that it was the applicant's evasive answers that he had "heard" of people being accidentally shot by guns which accounted for the immediately following questions. In my opinion, the objection to this line of questioning should be rejected. It was not, in my opinion, irregular and did not call for the discharge of the jury. (at p342)

14. In my opinion, special leave to appeal should be refused. (at p342)

McTIERNAN J. I agree substantially with the reasons of Menzies J. (at p342)

MENZIES J. The applicant for special leave to appeal, from an order of the Victorian Court of Criminal Appeal dismissing an appeal, had been tried and convicted upon a presentment that he had murdered his wife, who was killed by gunshot when the applicant was the only other person present. The deceased was driving a tractor pulling a trailer loaded with hay which the applicant was feeding out to stock. The wife was in front; the applicant was behind her, and in his possession on the trailer there was a loaded gun. The gun had been lying on the hay bales. The applicant said he had done what he thought was necessary to put on the safety catch but had made a mistake and the gun was ready for firing. He denied the evidence of the owner of the gun that, upon lending it to the applicant, he had shown him how to put on the safety catch. What is certain is that the gun went off and the deceased was shot in the back of the head and killed. (at p342)

2. The evidence against the applicant, although circumstantial, was strong. It included evidence of threats by him to kill his wife and evidence by the girl with whom the applicant had maintained an adulterous relationship that he had told her that his wife would not divorce him and that he could never get rid of her "unless I made it look like an accident". She replied "I would never marry you then", and he said "Why not ?" She said "Because you are not God". There was also evidence that if the gun had been accidentally discharged while just lying on the hay, either by some jolting or by reason of the dog which was on the trailer treading upon it, that by reason of its recoil it could not have been where it was found after its discharge. In addition there was evidence of a very unhappy relationship between the applicant and his wife. The admissibility of part of this evidence was the first question debated before us. The evidence in question consisted of two utterances made by the deceased to the applicant in the course of quarrels between them. The first was overheard by a witness outside the house, who said that he had heard the deceased crying and saying to her husband, "I only know you want to kill me for my money". The second, made by the deceased in the presence of a witness after the applicant had knocked her to the ground because she continued to rub the duco of her motor car after he had told her to stop doing so was as follows : "I know you want to kill me, why don't you get it over with." (at p343)

3. It was contended by counsel for the applicant that the evidence of what the wife said on these two occasions was not admissible because her words could not be regarded as providing a basis for a homicidal response by the applicant or as giving the applicant some motive for killing his wife. The contention that the evidence was admissible only if the words could reasonably be regarded as casually related to the wife's death in one or other of the ways stated was based upon a passage in the judgement of Kennedy J. in R. v. Bond (1906) 2 KB, at pp 400-401 , which followed a statement relating to the admissibility of evidence of prior criminal acts to prove the crime charged, and was as follows:

"Such prior acts formed, in point of historical and circumstantial connexion, inseparable parts of the transaction which the jury had to investigate. Within this same limitation, I think, come the cases of trials for murder and wounding with felonious intent, in which evidence is admissible to shew prior assaults by the prisoner upon the murdered or injured person or menaces uttered to him by the prisoner, or to shew conversely irritating behaviour by the deceased to the prisoner, as in Reg. v. Hagan (1873) 12 Cox CC 357 The relations of the murdered or injured man to his assailant, so far as they may reasonably be treated as explanatory of the conduct of the accused as charged in the indictment, are properly admitted to proof as integral parts of the history of the alleged crime for which the accused is on his trial."

In my opinion this statement affords no jurisdiction for the limitation for which counsel for the applicant has contended. The essential part of hi s Lordship's statement is to be found in the words:

"The relations of the murdered or injured man to his assailant, so far as they may reasonably be treated as explanatory of the conduct of the accused as charged in the indictment, are properly admitted to proof as integral parts of the history of the alleged crime for which the accused is on his trial." (1906) 2 KB, at p 401

These words are fatal to the contention of counsel for the applicant and are not to be read down by the words which precede them. (at p344)

4. It seems to me that here, as so often happens, an attempt has been made to reduce the law of evidence - which rests fundamentally upon the requirement of relevancy, i.e. having a bearing upon the matter in issue - to a set of artificial rules remote from reality and unsupported by reason. Any jury called upon to decide whether they were convinced beyond reasonable doubt that the applicant killed his wife would require to know what was the relationship between the deceased and the accused. Were they an ordinary married couple with a good relationship despite differences and disagreements, or was their relationship one of enmity and distrust ? It seems to me that nothing spoke more eloquently of the bitter relationship between them than that the wife, in the course of a quarrel, should charge her husband with the desire to kill her. The evidence is admissible not because the wife's statements were casually connected with her death but to assist the jury in deciding whether the wife was murdered in cold blood or was the victim of mischance. To shut the jury off from any event throwing light upon the relationship between this husband and wife would be to require them to decide the issue as if it happened in a vacuum rather than in the setting of a tense and bitter relationship between a man and a woman who were husband and wife. Accordingly, in my opinion the evidence in question was properly admitted because it was pertinent to the issues which the jury had to decide. (at p344)

5. The next submission that there had been a mistrial rests upon what was put as a wrong exercise by the learned presiding judge in failing to exclude the foregoing statements of the wife on the grounds that their prejudicial effect was out of all proportion to their probative value. In the light of the other evidence I have found no reason to think his Honour was in error in admitting what, for the purpose of this argument, is conceded to be admissible evidence. His Honour carefully directed the jury upon the use that they could make of the evidence and warned them against treating the statements as evidence of the actual state of mind of the applicant. (at p345)

6. Finally the learned trial judge, in the exercise of his discretion, refused an application to discharge the jury because the applicant had in cross examination been asked whether he was not acutely aware of the danger of firearms because there had previously been an accidental death in his family by a gun discharging. On the face of it, this question was unexceptional. It appears, however, that the applicant's first wife had been killed by a bullet from a rifle and that the learned judge had ruled that any evidence that the applicant was involved in this event should be excluded. Counsel for the applicant contended that this ruling had been infringed by the cross examination and that the mere reference to a previous death from shooting in the family might work to the prejudice of the applicant because, after the arrest of the applicant, wide publicity had been given to the fact of the death of his former wife with the suggestion that he had been responsible for that death. This material was not before us. (at p345)

7. In my opinion his Honour, who was clearly enough sensitively aware of the possibility of prejudice, was right in his conclusion that the questioning did not contravene his ruling, and that the cross examination did not afford any ground for the discharge of the jury. The cross examination, which referred to an accidental shooting, seems to have been so remote from the earlier publicity that I do not regard this as an appropriate case to examine the discretionary powers of a court in relation to the asking of relevant questions which are likely to bring to the mind of a jury material prejudicial to the accused which had been published at some earlier time. (at p345)

8. The applicant's appeal against his conviction to the Court of Criminal Appeal was dismissed for reasons which are essentially the same as those which I have already expressed. Accordingly, I agree that the application for special leave to appeal from the judgment of the Court of Criminal Appeal should be refused on the ground that an appeal could not succeed. (at p346)

OWEN J. In the course of the trial of the applicant upon a charge of murdering his wife by shooting her in the back of the head with a shot gun which he had earlier borrowed for the purpose, he said, of shooting rabbits, evidence was given that the relationship between the applicant and his wife was an unhappy one and that bitter quarrels had taken place between them. In the course of that evidence one witness deposed that during one such quarrel he had heard the wife, who was crying, say to the applicant that she knew he wanted to kill her for her money and evidence was also given that on another occasion, after the applicant had knocked her down, the wife had said "I know you want to kill me, why don't you get it over with". The learned trial judge was at pains to direct the jury that these statements were not to be treated as any evidence of the fact that the applicant did wish or intend to kill his wife but could be used only to show that the relationship between them was one of enmity. Notwithstanding the submissions of counsel for the applicant that such evidence was inadmissible, I have no doubt that evidence of the relationship between the wife and the applicant was relevant in considering whether the former's death was due, as the applicant claimed, to an accidental discharge of the gun or whether, as the Crown alleged, it was due to his deliberate act. (at p346)

2. It was further submitted that, assuming the evidence to be admissible, the prejudicial effect of these statements by the wife so far outweighed any relevant probative value that they might have that his Honour should, in the exercise of his discretion, have excluded them. I can, however see no good reason for thinking that his Honour wrongly exercised his discretion in admitting the evidence and, as I have said, he gave a careful direction to the jury as to the use they might make of it. (at p346)

3. Finally it was contended that his Honour should have acceded to a request that the jury be discharged after questions had been asked in cross examination of the applicant whether he was not well aware of the danger of the accidental discharge of a loaded firearm because there had earlier been an accidental death from such an event in his own family. In the circumstances of the case the questions were relevant to the issue which the jury was called upon to decide. It appears, however, that at the beginning of the trial and in the absence of the jury, the Crown Prosecutor had sought a ruling from the learned trial judge whether evidence should be admitted that a former wife of the applicant had been killed by a shot through the head in circumstances from which it might be inferred that the applicant had fired the shot. His Honour ruled that the evidence should not be admitted. We were told that some months before the trial evidence of this earlier happening had been given at the inquest following the death of the applicant's second wife and that this had been given much publicity in newspapers. In these circumstances it was submitted to his Honour that the jury should be discharged on the ground that the reference in cross examination of the applicant to an earlier accidental death occurring in his family as the result of the discharge of a loaded firearm infringed his Honour's ruling and might have recalled to the minds of the jury the newspapers reports of the evidence which had earlier been given before the Coroner. His Honour refused the application. Here again I can see no good reason for thinking that his Honour fell into error in the exercise of his discretion. It is apparent that he was alert to ensure that his earlier ruling should be obeyed and, in my opinion, he was fully entitled to take the view that it had not been contravened and that there was no good reason why the jury should be discharged. (at p347)

4. On the application for special leave to appeal the case for the applicant was argued as on an appeal and since I am of opinion that, if leave to appeal was granted, the appeal would fail I would refuse special leave. (at p347)

WALSH J. I agree with the judgment of my brother Menzies and have nothing to add. (at p347)

Orders

Application for special leave refused.