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R v Sam

 

[2002] QCA 14

COURT OF APPEAL

DAVIES JA

WILLIAMS JA

DOUGLAS J

CA No 224 of 2001

THE QUEEN

v.

DEREK BELLINGTON SAMAppellant

BRISBANE

DATE 05/02/2002

JUDGMENT

WILLIAMS JA:  The appellant was convicted by a jury of the murder of Jessica Kim Gaudie.  He appeals against conviction.  In the notice of appeal he raised three grounds.  The first, which was concerned with the admissibility of evidence of conversations between the appellant and witnesses Summers and Johnson, was not argued and was struck out at the outset of the appeal.

That left for consideration two grounds of appeal; the first being that the learned trial Judge at pre-trial hearing on 20 November 2000 erred in law or alternatively erred at the trial in the exercise of his discretion in admitting scientific evidence relating to the presumptive tests for the presence of blood in the appellant's motor vehicle.  At the outset of argument, counsel indicated that the presence of blood on the shoes of the appellant would also be incorporated into that ground of appeal. 

The other ground of appeal argued was that the conviction was unreasonable and could not be supported having regard to the evidence.

Jessica Kim Gaudie was born on the 13th of July 1983 and was aged about 16 years at the time of her disappearance.  On Saturday, 28 August 1999, arrangements were made by a Mia Summers for Jessica Gaudie to babysit her three children aged 8, 5 and 3 whilst she attended a birthday party.

The father of those three children was the appellant.  He and Summers had been in a de facto relationship for some time but that had ended approximately three months prior to the date in question. 

The appellant also attended the birthday party of the person Geoffrey Turner.  He took some alcohol with him to the party and it is clear that he had consumed at least some of it during the evening.  In the course of the evening, he became jealous of the attention Mia Summers was receiving from another male at the party.  That resulted in a minor altercation between the appellant and that male person.

According to the appellant's statement to police, he then left the party somewhere between 1 and 2 a.m. on the Sunday morning, 29 August, and went to the residence of Summers where his three children and the babysitter were. 

According to his account which formed the basis of defence at the trial, he persuaded Jessica Gaudie to come with him to the party for the purpose of inducing Mia Summers to leave it.  According to the appellant's story, he drove Jessica Gaudie to the intersection of Bonney and Elizabeth Streets, Nambour which, on the evidence, was a distance of some 263 metres from the house where the party was being held.  According to his statement, he told Jessica that there was a lady there that would drive her home.  He claimed in the statement he then drove away and that was the last he saw of her. 

It should be noted that when the appellant was subsequently interviewed by investigating police officers, he was asked to provide them with the clothing he was wearing on the night in question.  He gave them a pair of grey/black shoes, Lynx brand, which he obtained from his bedroom.  Those shoes became Exhibit 33.

A Police Scientific Officer, the witness Keane, noted a number of shoe sole impressions in mud near the back patio of the residence of Summers at 19 Ridgewood Street.  Keane compared the soles of the shoes to which I have referred with the impression in the mud and she expressed the opinion in evidence that it was those shoes which left that impression.

I mention that evidence because it confirms the accuracy of the appellant's statement to the police that he was at the residence of Summers at 19 Ridgewood Street on the evening in question.

The following morning, that is the Sunday morning, Jessica was reported missing and an extensive police search, apparently involving many thousands of man-hours, failed to find any trace of her. 

At the trial the defence did not seriously contest that Jessica's disappearance was explicable only by her death.  Evidence which excluded the possibility of her running away or staging a disappearance included the following:

(1)she left the house dressed only in boxer shorts and jumper even though it was cold and raining; she was in bare feet; her babysitting payment was still on the kitchen bench; she did not take any other money or any other personal items which would have been relevant to her then condition;

(2)she was happy at home and school and close to her mother and friends;

(3)she was looking forward to a family christening scheduled for that particular Sunday;

(4)she was enjoying the romance of her first boyfriend; and

(5)her bank accounts had not been accessed since her disappearance.

It is also of some significance to note that evidence was led from people leaving the party at about the time that the appellant said he dropped Jessica off at the intersection, and no-one saw Jessica.  She did not arrive at the party.  It was a relatively quiet area and there was, as I have said, evidence from people who were in the vicinity at the time that they did not see her.

In particular, the witness Marshman drove from the residence where the party was being held and back on some two occasions between 2 a.m. and 2.30.  She said in evidence that she was keeping an eye out for the appellant's car because of the circumstances in which he had left the party.  She did not want him returning to the party and causing more scenes.  She expressly denied seeing anything of the appellant.  I mention that the other relevant witnesses in that regard were Warne, Goodwin and Anderson. 

Given the way the defence case was conducted the last person to see Jessica Gaudie was the appellant and the fact that she had been in his car when last seen by him attracted the investigating police's attention to his Landcruiser motor vehicle.

In the circumstances, it is clearly understandable that the appellant's Landcruiser was an object of interest in the course of the investigation.  The witness K.J. Neill gave detailed evidence of his washing that Landcruiser with the appellant on the previous Friday.  He gave evidence that the appellant was very particular about the vehicle and that it was kept in a thoroughly clean condition both inside and out.

Neill's evidence detailed the washing that took place on the Friday which included washing down or cleaning down the dashboard and other fixtures inside the motor vehicle.  Neill also saw the vehicle on the Saturday afternoon, at least from the outside, and his evidence was that it was then in the clean condition it had been in after it had been washed.

When Neill next saw the vehicle on the Sunday, there was mud on it.  There was mud on the bull-bar and also mud on the steering wheel.  That was confirmed by the police officers Gibbon and Wort.  They gave evidence also that dirt and leafy material was found on the floor of the interior of the motor vehicle.

The jury clearly could have considered that evidence of some significance when assessing the case against the appellant.  That is particularly so when all accounts he gave as to his movements in the vehicle would not have explained the presence of mud on the vehicle when it was seen on the Sunday morning.

It is also appropriate to note at this stage that police examination of the vehicle revealed no fingerprints. That is a somewhat unusual circumstance seeing that it is clear that the vehicle had been driven shortly before the examination was carried out.  A possible explanation for the absence of fingerprints is that the vehicle had been wiped down or at least those parts where one might ordinarily expect to find some finger marks.

It is against that background that I turn to the evidence to which objection was taken.  The appellant alleges that the learned trial Judge erred in admitting evidence relating to the results of presumptive tests for the presence of blood in the Landcruiser motor vehicle and on the appellant's shoes.

Sergeant Keane of the Scientific Section gave evidence relating to the finding of positive presumptive tests for blood on various parts of the motor vehicle which the appellant had been driving on the night Jessica Gaudie was last seen.  Two tests were involved; that referred to as the TMB method and that using the substance Luminol.

Either or both of those tests indicated the possible presence of blood as follows:

(1)on the front passenger side door exterior handle;

(2)on the female section of the front passenger seat seatbelt;

(3)on the rear driver's side door interior arm-rest;

(4)on the rear driver's side door interior door handle;

(5)on the rear seat there were three areas on the seat base and two areas on the back of the rear passenger seat;

(6)three areas on the rear of the front driver's seat;

(7)two areas in the boot space;

(8)on the front of the front driver's seat head-rest;

(9)two areas on the base of the front passenger seat;

(10)around the ignition barrel, that is, where the key goes into the ignition;

(11)a number of small areas on the roof lining; and

(12)two small areas on the sun visor in front of the driver's seat.

The scientific evidence conceded that a number of substances other than human blood may react positively to either or both of those tests.  Specifically, animal blood would give a positive result. 

The witness K.J. Neill was with the appellant in the vehicle on the Friday, the day before the deceased went missing.  He gave evidence that on that day he accidentally killed a goose.  He put the goose in a feed bag and then put the feed bag in the rear of the Landcruiser.  That would appear to be the same location as the boot referred to by the witness Keane.

Keane did refer to the fact that there were large stains in the boot; something had soaked through the carpet to the underlay.  What Keane so observed and the positive testing for blood in the boot is probably explained by the presence of the goose and blood from it.  That was also confirmed by the scientist, the witness Bentley.  Her evidence tended to confirm that what was noted in the boot area was animal blood.

The appellant's Landcruiser was used by him in the course of his employment with the Paiban Aboriginal Corporation.  That body provided a support program for young Aboriginal youths and encouraged them in the breeding of horses and other rural activities.  The principal of that organisation was the witness M.J. Johnson.

Under cross-examination, Johnson gave evidence that, on occasions, he had seen injured youths, some times bleeding, being conveyed in the appellant's Landcruiser.  He referred to one particular incident where a youth was bumped by a horse and was bleeding from the mouth.  That was advanced by counsel for the appellant in his address to the jury as a possible explanation for the presence of blood inside the motor vehicle.

I mention in passing that Keane also obtained a positive result for the presence of blood on the laces of the left and right shoes of the appellant and also around the rim of the left shoe.  The witness Bentley, the scientist, seemed to indicate that that may not have been a reaction to human blood.

Against that background, the learned trial Judge in the course of his summing-up said:

"Lastly, I think Mr Campbell advances the evidence of blood or presumptive traces of blood in the accused's car.  Now, you have heard the evidence and you have heard Mr Devereaux's submissions this morning.  I do not know that I need say much about it.  You might think that the evidence is too equivocal to allow you to conclude one way or the other whether there was relevant blood in the car when the police examined it.  There were certainly substances that reacted positively with the police reagents.  It may have been blood; it may have been old blood; it may have been something else.  You might think that the evidence neither proves nor disproves the presence of blood in the car."

A little earlier in his summing-up the learned trial Judge referred to the fact that Mr Devereaux, counsel for the appellant at trial, had argued before the jury that, "No trace of blood or indeed even mud had been found on the accused's trousers or shoes or his shirt."  The learned trial Judge did not specifically advert to the evidence as to blood on the shoes and, indeed, it seems to have been conceded that the evidence did not establish that what reacted to the test with the shoes was human blood.  No objection is taken to the summing-up.

The case against the appellant was a circumstantial one.  There appears to be no doubt that on the evening in question, the appellant went to the residence where the missing girl was babysitting and drove her from there in his Landcruiser motor vehicle.  Where he took her is, of course, in dispute.

In those circumstances, the results of a scientific examination of the motor vehicle was relevant to the case against the appellant.  The fact that scientific testing showed presumptive positive tests for blood was probative with respect to the prosecution case that the appellant had killed the girl on that night.

Given the other possible explanations for such positive test results being obtained in areas of the appellant's car, it was for the jury to determine the weight, if any, and the relevance which should be given to that evidence.  The summing-up was, if anything, favourable to the appellant in that regard.

The challenge is to the admissibility of the evidence referred to.  It is sufficient for present purposes to say that the evidence objected to was relevant and probative.  Counsel ultimately submitted that it ought to have been rejected in the exercise of discretion because its probative value was very slight and that it was potentially highly prejudicial.

In the circumstances, particularly given the summing-up to which I have referred, I am not persuaded that the learned trial Judge erred in the exercise of his discretion in admitting the evidence.  Given that this was a circumstantial case, the evidence objected to was relevant and admissible and it was for the jury to determine its significance and the weight which should be attached to it.  That ground of appeal fails.

All that I have said to date is relevant also to the other ground of appeal, namely, that the verdict is unsafe and unsatisfactory.  In considering that ground, it is also of great significance to refer to the evidence of a number of different and inconsistent versions given by the appellant as to what occurred on the night in question.

The appellant was living with a man named Henry Neill at the time.  On the Sunday, Neill had a conversation with the appellant after he, Neill, had received a telephone call from police indicating that the police wanted to speak to the appellant about Jessica Gaudie's whereabouts.  On that occasion, the appellant told Neill that, "I dropped her off at her boyfriend's place at Bonney Street at 3 o'clock this morning."  That was the first version given by the appellant. 

Subsequently, he was spoken to by Constable McNamara and it is on that occasion that he gave the version of having dropped Jessica Gaudie off at the intersection near the house where the party was being held.  That statement was made later on the Sunday and, even later that same day, he supplied the police with a written statement; that was given to Sergeant Farlow and it contained a similar account, namely, that he had dropped the girl off at the intersection.  That statement could be regarded as the second version.

I have already mentioned that the witness Johnson was, in effect, the appellant's superior at his place of employment.  A short time after the events in question, following a number of discussions between the appellant and Johnson about the relevant events, the appellant asked Johnson to drive him to various places so that he might refresh his memory as to what might have happened on the night in question. 

It is true to say that Johnson conceded, in the course of his evidence, that much of what the appellant said on this occasion was disjointed; but, nevertheless, it seems to me to be evidence to which the jury could reasonably have regard in considering the circumstantial case against the appellant.

In the course of that drive, they went to the carpark of a child-care centre in Nambour.  The appellant there left the vehicle and walked around and made a number of statements which included that he might have taken her there but he couldn't remember.  He also said words to the effect that he might have had sex with her; he might have hurt her; but again, he couldn't remember.

Those statements were material to the case against the appellant and they could be regarded as another version, albeit in a somewhat disjointed fashion, given by the appellant as to what happened on the night in question.  I do not consider it necessary for present purposes to detail all of Johnson's evidence as to what occurred on the occasion in question; the jury could well have regarded other parts of Johnson's evidence material to their deliberations.

Of lesser significance, but nevertheless it was evidence before the jury, was evidence of a statement allegedly made to a fellow employee, Lacey.  There the conversation was to the effect that the appellant's wife wanted to see the babysitter; he'd gone and got her and dropped her off.  It has to be said that under cross-examination it became somewhat doubtful as to whether or not that conversation was accurately recalled by the witness Lacey.

There were also statements made to the witness K.J. Neill that he couldn't remember what happened on the night in question. 

Finally, I refer to a telephone conversation between the appellant and his former de facto, Mia Summers, which was recorded.  I have listened to the disc on which that conversation is recorded and counsel has provided the Court with a transcript which, in my view, reasonably accurately records what was said in the course of that conversation.

It seems that the witness Summers was querying, in effect, the appellant as to what she was supposed to tell the children.  Was she supposed to tell them that, "Dad killed Jessie."  To that the appellant replied, "Don't say the word."  Summers then said, "Well, they've been watching it," to which the appellant replied, "It never happened like that you know."

Then Summers questioned, "Well, how did it happen," to which she received the response, "How do I know?"  Summers then said, "Well, I just can't understand how you can't remember."  And the appellant replied, "You know I didn't do it deliberately or I didn't - well, I don't know.  Please just get it out of my brain for once."  Later on, Summers asked, "Did you rape her?"  And the appellant replied, "I don't know, Mia, I don't know."

The jury was fully entitled to have regard to all those various accounts by the appellant of what happened on the night in question.  As I have already said, at the end of the day, it was a circumstantial case against the appellant.  There was clearly material that, in the absence of any explanation from the appellant, supported the conclusion that he was responsible for the death of Jessica Gaudie.

He did not give evidence and that, in my view, made it easier for the jury to draw the inference which, in fact, they did.

There were also in the evidence other matters which the jury could reasonably have regarded as circumstances supporting the inference that the appellant was guilty of the offence charged.  I do not consider it necessary to detail all of that evidence here.

Having regard to the evidence, to the summing-up, and to the submissions, I have come to the conclusion that the verdict of the jury was not unsafe and unsatisfactory and, in the circumstances, the appeal against conviction should be dismissed.

DAVIES JA:  I agree with the order proposed by Justice Williams and with his reasons.

DOUGLAS J:  I agree.

DAVIES JA:  The appeal is dismissed.

Close

Editorial Notes

  • Published Case Name:

    R v Sam

  • Shortened Case Name:

    R v Sam

  • MNC:

    [2002] QCA 14

  • Court:

    QCA

  • Judge(s):

    Davies JA, Williams JA, Douglas J

  • Date:

    05 Feb 2002

Litigation History

Event Citation or File Date Notes
Primary Judgment [2000] QSC 368 20 Oct 2000 Admissibility of evidence; rulings made pursuant to section 592A of the Criminal Code: Mackenzie J.
Appeal Determined (QCA) [2002] QCA 14 05 Feb 2002 Appeal against conviction dismissed: Davies and Williams JJA and Douglas J.

Appeal Status

{solid} Appeal Determined (QCA)