SUPREME COURT OF QUEENSLAND CITATION: R v Warradoo [2014] QCA 299 PARTIES: R v WARRADOO, Charles Christopher (appellant/applicant) FILE NO/S: CA No 274 of 2013 SC No 31 of 2013 DIVISION: PROCEEDING: ORIGINATING COURT: Court of Appeal Appeal against Conviction & Sentence Supreme Court at Cairns DELIVERED ON: 25 November 2014 DELIVERED AT: Brisbane HEARING DATE: 23 October 2014 JUDGES: ORDERS: Holmes and Fraser JJA and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the orders made 1. Dismiss the appeal against conviction. 2. Refuse the application for leave to appeal against sentence. CATCHWORDS: CRIMINAL LAW APPEAL AND NEW TRIAL OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW MISDIRECTION AND NON-DIRECTION PARTICULAR CASES where the appellant was convicted by a jury of the murder of his de facto partner where the issue at trial was whether an intent to kill or do grievous bodily harm could be inferred from the circumstances surrounding the killing where hearsay evidence of conversations between the deceased and the deceased s mother and niece was admitted under s 93B of the Evidence Act 1977 (Qld) where the appellant contends that the trial judge did not give adequate warnings to the jury concerning the use and reliability of the two witnesses evidence under s 93C of the Evidence Act where the evidence was not admitted as a circumstance relevant to intent but as evidence of the nature of the relationship between the appellant and the deceased whether any miscarriage of justice has resulted from the lack of a direction under s 93C of the Evidence Act CRIMINAL LAW APPEAL AND NEW TRIAL APPEAL AGAINST SENTENCE SENTENCE: WHAT CONSTITUTES where the applicant seeks leave to appeal
2 COUNSEL: SOLICITORS: against his sentence of life imprisonment with parole eligibility after 20 years where the mandatory sentence of life imprisonment took into account the aggravating circumstance of the applicant s previous conviction for murder where, pursuant to s 305(2) of the Criminal Code, the sentencing judge was obliged to order that the applicant serve a minimum of 20 years imprisonment whether the application for leave to appeal against sentence should be refused Evidence Act 1977 (Qld), s 93B, s 93C, s 132B Roach v The Queen (2011) 242 CLR 610; [2011] HCA 12, followed Wilson v The Queen (1970) 123 CLR 334; [1970] HCA 17, followed D R Kent QC for the appellant/applicant (pro bono) D C Boyle for the respondent Fisher Dore Lawyers for the appellant/applicant (pro bono) Director of Public Prosecutions (Queensland) for the respondent [1] HOLMES JA: The appellant was convicted by a jury of the murder of his girlfriend, Angela Dean. He appeals that conviction on the ground that the trial judge did not give adequate warnings to the jury concerning the use and reliability of two witnesses evidence about conversations with Ms Dean, admitted under s 93B of the Evidence Act 1977. He also seeks leave to appeal against his sentence of life imprisonment with parole eligibility after 20 years. Counsel, who appeared pro bono, did not advance, but lacked instructions to abandon, that application. [2] At the commencement of the trial, the appellant pleaded guilty before the jury panel to manslaughter. The Crown did not accept the plea and the trial proceeded on the charge of murder. The only real issue was whether an intent to kill or do grievous bodily harm could be inferred from the circumstances surrounding the killing. The appellant did not give evidence. The Crown case [3] Ms Dean was 37 when she was fatally stabbed by the appellant, either on the night of Thursday, 16 August 2012 or in the early hours of the following morning. She had been living with her mother, Jean Temple, at Lockhart River. For a period of two or three months the appellant also lived in Ms Temple s house as Ms Dean s de facto husband. Acquaintances of the appellant said that in the fortnight or so before Ms Dean s death, the appellant had complained to them of Ms Dean s jealousy as a problem in their relationship. [4] The s 93B evidence which was the subject of this appeal came from Ms Temple and Ms Dean s niece, Cecily Rokeby, who also lived in Ms Temple s house. Ms Rokeby said that on an occasion about a month before her death, her aunt told her that the appellant had grabbed her by the neck during an argument and tried to choke her. Some red marks were visible on her neck. Ms Temple said that about a week before her daughter died, the couple had argued over the fact that the appellant
3 had the SIM card of another woman. In the week leading up to the death, there was an instance when the couple were arguing in her daughter s room; she could hear what she described as thumping on the wall. Ms Dean emerged angry and upset and said that the appellant had threatened to choke her and break her neck. [5] After that incident, Ms Temple told the appellant to leave; he collected his belongings and did so. The next day, however, he returned, and Ms Dean and he left the house together, intending to travel together to a family ceremony at Bamaga. The couple stopped at Archer River for the night, camping by the riverside. They spent an hour or so drinking at the Archer River Roadhouse, each consuming three or four beers. Two men who had also been drinking there that evening said that they saw the couple arguing; one heard Ms Dean call the appellant a mongrel. The appellant made a passing remark to the other drinkers to the effect that women were frustrating or difficult to understand. [6] The following morning, the appellant arrived at the roadhouse at about 8.15 am, saying that he was unable to wake Ms Dean. The roadhouse owners, Mr and Mrs Allen, went to the camping site where they found her lying on her back, fully clothed and covered, except for her head, with a sheet. She was dead; Mrs Allen said that there was an injury to her lip, which had not been evident the previous evening. A small knife was later found in her right hand; the inference was that the appellant had placed it there. Witnesses who spoke to him later that morning said that he was upset and crying, repeating, Please Ange, wake up. I m sorry, Ange. He maintained that he could not understand what had happened and said that Ms Dean was very jealous and suffered from depression. They had been drinking and using marijuana. [7] Ms Dean s body was the subject of a post-mortem examination. The pathologist who conducted it identified six wounds which he described as stab wounds and another seven minor lacerations which were shallow cuts, scratches or puncture points. All of the injuries were to Ms Dean s neck, other than an incision on her cheek, and all had been inflicted with a sharp object. The most serious of the injuries, and the one which had caused death, was a wound which had cut both the carotid artery and jugular vein; it was about eight centimetres deep. In addition to the wounds caused by a sharp object, there were some injuries caused by blunt force contact, consisting of two tears to the upper and lower lips respectively, some bruising over her forehead and a scratch on her left shoulder. The appellant s argument on the appeal [8] The appellant accepted that the evidence of Ms Temple and Ms Rokeby was properly admitted under s 93B of the Evidence Act. That provision renders the hearsay rule inapplicable to evidence of a representation of fact made by a person who is dead, if the representation was made shortly after the asserted fact happened and in circumstances making it unlikely to be a fabrication, or was made in circumstances making it highly probable it was reliable. [9] The appellant s complaint was, rather, that no warning under s 93C was given. That provision is as follows: 93C Warning and information for jury about hearsay evidence (1) This section applies if evidence is admitted under section 93B (hearsay evidence) and there is a jury.
4 (2) On request by a party, the court must, unless there are good reasons for not doing so (a) (b) (c) warn the jury the hearsay evidence may be unreliable; and inform the jury of matters that may cause the hearsay evidence to be unreliable; and warn the jury of the need for caution in deciding whether to accept the hearsay evidence and the weight to be given to it. (3) It is not necessary for a particular form of words to be used in giving the warning or information. (4) This section does not affect another power of the court to give a warning to, or to inform, the jury. [10] No such warning was sought at trial. By agreement, a letter from defence counsel was tendered in this court; he said that not asking the judge to give a warning under s 93C was an oversight and not a tactical decision. The appellant argued that it was important that a warning be given, because evidence of previous infliction of injury was relevant in establishing the appellant s intent to cause Ms Dean s death. The only other evidence of intent was the circumstance of the wounds to Ms Dean s neck. Section 93C was designed to moderate the erosion of the hearsay rule by s 93B. The warning referred to in s 93C, it was said, was explicit as to the unreliability of hearsay evidence. Discussion [11] The evidence admitted under s 93B was not in fact treated as a circumstance relevant to intent. The trial judge did not refer specifically to the evidence of Ms Temple or Ms Rokeby, but he said, more generally on the subject of the relationship between the appellant and Ms Dean, There was evidence of friction between the accused and the deceased stemming from her jealousy of him and the things he did. You would not, of course, infer from that that the accused intended to kill her or do her grievous bodily harm. That evidence went simply to the nature of the relationship between accused and the deceased, which was not plain sailing. It had limited relevance and, as I ve said, you could not rationally conclude from that that he had any reasonable motivation to kill her. It simply puts the killing into a context, and Mr Boyle addressed something from this. He talked about friction escalating that night to a crescendo which involved the stabbing death. So it establishes a context but it doesn t, of itself, obviously this is a matter of common sense doesn t, of itself, prove that this man must have murdered his de facto partner. [12] Although there was no reference at the trial to the purpose for which the s 93B evidence was admitted, that passage from the summing up makes it clear that the Crown relied on the two women s statements, not as any form of propensity evidence, but as illuminating the nature of the relationship between the appellant and Ms Dean. It was admissible as evidence of the history of the domestic relationship between the two under s 132B of the Evidence Act. It could properly be
5 relied on to show the kind of relationship they had and to assist in the evaluation of the other evidence in the case. 1 As can be seen, the trial judge directed the jury on that basis; he expressly limited the use to which the evidence could be put to establishing the nature of the relationship, rather than being able to be used as proof of intent. [13] As a matter of construction, I do not think that s 93C(2) is directed generally to the unreliability of hearsay evidence. Firstly, the giving of a warning is not automatic; it is required only where a party requests it. Secondly, the use of the definite article is significant: the warning is to be given in relation to the hearsay evidence ; that is to say, the hearsay evidence given in the particular case, not hearsay evidence of the kind generally. [14] In the present case, it is not evident what particular features of Ms Temple s and Ms Rokeby s evidence the trial judge could have identified as grounding a warning that it might be unreliable. The defence had not raised any issues in that regard. Neither woman was challenged about her evidence, although it might be expected the appellant would at least have been in a position to give instructions as to whether the noisy argument, which Ms Temple referred to had occurred; whether he had indeed been asked to leave her home in the circumstances she described; or whether Ms Dean s neck bore the marks which Ms Rokeby described. There was no suggestion that either witness bore any animosity to the appellant or had any reason to misrepresent what occurred, and it was not suggested that their recollection of the events might, for any reason, be inaccurate. [15] Nor was it was suggested that the source of the information, Ms Dean herself, was given to exaggeration or untruth. The complaint in each case was made immediately after the relevant incident and was supported, in the instance of which Ms Rokeby gave evidence, by the marks apparent on Ms Dean s neck, and, in respect of Ms Temple s evidence, by the noises she heard consistent with an altercation immediately before Ms Dean s disclosure. [16] Notwithstanding trial counsel's admission of oversight, the question is whether any miscarriage of justice has resulted from the absence of a warning. Apart from a bland statement that hearsay evidence could be unreliable, it is difficult to see what the trial judge could have said; and it seems unlikely that a warning in such general terms would have been helpful. And a warning would have drawn the jury s attention back to the evidence of Ms Rokeby and Ms Temple, which was unlikely to be to the appellant s advantage, while suggestions of unreliability which could not be attributed to any particular feature of the evidence were liable to underline its actual reliability. Indeed, s 93C(4) would have permitted the court to inform the jury of those matters which might be regarded as reinforcing the worth of the evidence. [17] Not only were there good reasons to think that a warning may not have benefited the appellant, but, given the absence of bases for suggesting that the hearsay evidence was or might be unreliable, and the features pointing to the contrary, it seems to me quite possible that had the trial judge been asked to give a warning, he would have concluded that there were good reasons for not doing so. [18] I do not consider that the lack of the direction under s 93C caused any miscarriage of justice. I would dismiss the appeal against conviction. 1 Roach v The Queen (2011) 242 CLR 610, 621; Wilson v The Queen (1970) 123 CLR 334, 344.
6 The application for leave to appeal against sentence [19] The appellant s application for leave to appeal against sentence remained on foot, although counsel did not, for obvious reasons, seek to argue it. The sentence of life imprisonment was mandatory for murder 2 and because an aggravating circumstance - the appellant s previous conviction of murder - had been alleged and proved against him, in accordance with the procedure prescribed in s 630 of the Criminal Code, the sentencing judge was obliged to order that he not be released before serving a minimum of 20 years imprisonment. 3 Any appeal against sentence being clearly doomed to failure, the application for leave to appeal must be dismissed. Orders [20] The appeal against conviction should be dismissed and the application for leave to appeal against sentence refused. [21] FRASER JA: I agree with the reasons for judgment of Holmes JA and the orders proposed by her Honour. [22] PHILIPPIDES J: I agree that the appeal against conviction should be dismissed and the application for leave to appeal against sentence should be refused for the reasons given by Holmes JA. 2 3 Criminal Code, s 305(1). Section 305 (2).