The Queen v Smith[1997] QCA 111

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 4 of 1997

Brisbane

THE QUEEN

v.

GEORGE SMITH

(Applicant)Appellant

Fitzgerald P

Davies JA

McPherson JA

Judgment delivered 9 May 1997.

Separate reasons for judgment of each member of the Court; each concurring as to the orders made.

APPEAL AGAINST CONVICTION DISMISSED.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

REASONS FOR JUDGMENT - FITZGERALD P

Judgment delivered 9 May 1997

On 13 December 1996, the appellant was acquitted of the murder of his daughter, Kim Marie Gillespie Smith, but convicted of her manslaughter.  On 20 December, he was sentenced to imprisonment for 12 years.  He has appealed against his conviction and applied for leave to appeal against his sentence.

The appellant’s daughter was 21 when she died on 7 July 1995.  She suffered from a congenital disease which involved significant mental retardation.  The appellant had had regular sexual intercourse with her since she was aged 18, and he had kicked and slapped her on occasions.  In December 1994, she went to live with another family named Eason.  At the time, she was badly bruised, withdrawn and exhibiting regressive behaviour, and shortly afterwards was admitted to hospital, where she remained until 20 January 1995.  On 4 January, after Mr Eason made an allegation of incest against the appellant, he and his wife, who was not the mother of his daughter, went to the hospital to which his daughter had been admitted and attempted to remove her although she was an in-patient.  There was a scene at the hospital when the appellant was restrained.  He later admitted that he wanted to prevent the possibility of further disclosure by her of his incestuous conduct, and that thereafter he remained concerned about that possibility.  However, he had no further contact with her and made no enquiries about her welfare prior to her death.

On the day on which she died, the appellant’s daughter went to the Caboolture Park Shopping Centre with Mrs Eason, who left her at a point close by while she went to the toilet.  When Mrs Eason came out of the toilet, the appellant’s daughter could not be found.  Her body was discovered, floating in the Caboolture River in an advanced state of decomposition, on 20 July 1995.  A post-mortem examination revealed that she had died from a subdural blood clot.

The appellant was interviewed by police on 23 July 1995 and 25 January and 18 April 1996.  In his first interview, he admitted sexual misconduct with his daughter although he understated the extent of that misconduct, sought to explain the severe bruising on his daughter when she went to live with the Easons as possibly having occurred when his daughter travelled in the back of his van on a trip from Sydney, and claimed that the last time he saw his daughter alive was at the hospital on 4 January 1995 and that on the day she disappeared from the Caboolture Park Shopping Centre he thought, although he was not sure, that he was “home most of the day”. 

On 25 January 1996, the appellant gave police further details of his sexual relationship with his daughter, said that he did not know that she had been released from hospital, and informed police that he had not been home all day on 7 July but had discovered from the receipt book for his carpet cleaning business that he had carried out a job at Bribie Island that morning.  He could not recall anything “noteworthy” occurring on his return trip from Bribie Island.

On 18 April 1996, New South Wales police came to Queensland with warrants for the appellant’s arrest in connection with sexual offences which he had committed upon his daughter in New South Wales.  He told those police officers that his wife had not done anything, that he was “sick of all the crying”, that they should do what they liked “and throw away the key”.  He said that he did not really care anymore, that he knew what he had done but that his wife had done nothing.  When asked what he had done, he said that he did not want to say anymore to the New South Wales police officers but wanted “to talk to the Queensland Police”.  Queensland police officers then spoke to the appellant and asked what he wanted to say to them.  He said: “I did it, Kimmy, it was an accident.”  When asked how it happened, he said: “I saw her on the side of the road and just wanted her to come home.  She bumped her head on the car and I just panicked, so I tied her up and put her in the river.” 

In the course of an interview which was videotaped, the appellant said that he saw his daughter as he was returning home from Bribie Island, and that he stopped the van and picked her up.  He continued:

“Kimmy got in the van and wanted her to come back home again and she didn’t want to, she want any part in it, try to grab her back in and she hit her head on the side of the van and I thought she was just play acting and later I found out that she’d passed away.”

He said that “... it was a accident and it happened it was an accident”.  According to his statement, he drove away and then tied his daughter up and put her in the water.

The appellant gave evidence at his trial at which he admitted his sexual relationship with his daughter but recanted his involvement in her death.  He claimed that he had last seen his daughter on 4 January 1995 and that he did not see her on 7 July 1995, the day when she disappeared.  He said that he made the statements which he did on 18 April 1996 because of a concern that his wife would be charged in relation to her involvement in his sexual misconduct with his daughter in New South Wales, as subsequently occurred.  He stated that his wife came into the interview room at the police station where his questioning by New South Wales police had occurred appearing very shaken and completely terrified, and told him that she might or would be allowed to go home if he admitted that he had something to do with his daughter’s disappearance and death.  According to the appellant, he said to his wife that “... that would mean admitting to murder”, but his wife said that that was the only basis on which the police would permit her to return home.  According to the appellant, he then said: “All right, darling, tell them to come in, I will say what they want.”  One of the Queensland police officers, Detective Senior Sergeant Miller, then came into the room, and the appellant asked him to put in writing that he would permit the appellant’s wife to go home if the appellant “was to make an admission”.  According to the appellant, Miller declined to put it in writing, saying that the appellant had his word on it.  The appellant said that he then participated in the videotaped interview, but made up his answers.  According to his evidence, his reason for doing so was that his wife was very ill and he did not want to see her extradited to Sydney because it would kill her.  After the interview, he had shown the police two spots, one where he said he had picked his daughter up and another where he said he put her body into the water.  In his evidence at his trial, the appellant said that he selected those spots at random.

Three grounds of appeal were argued, one related to evidence which it was submitted was wrongly admitted and two related to what were submitted to be misdirections by the trial judge to the jury.  One of the disputed directions was a re-direction in terms sought by the appellant’s trial counsel, and no re-direction was sought in respect of the other.

The first of the two directions concerned the possibility that, if the appellant killed his daughter, he did so by accident.  In his initial direction on the subject, the trial judge correctly told the jury that it was for the prosecution to rebut accident if it was raised and explained accident to the jury in terms which it was conceded were correct.  Understandably, his Honour went on to point out that the appellant had sworn that his statement to the police that he had killed his daughter by accident was a fabrication.  Counsel who represented the appellant at his trial requested a re-direction to correspond with the basis on which he had addressed the jury, namely, that if the jury accepted the record of the appellant’s interview on 18 April 1996 as reliable, they would regard it as a confession to manslaughter, not murder.  The submission in this Court was that that concession and the subsequent re-direction were based upon a fundamental error in that the appellant’s statements did not amount to an admission to manslaughter but raised for the jury’s consideration the possibility that his daughter’s death was not only unintended and unforeseen by the appellant but not reasonably foreseeable as a likely consequence by an ordinary person in the appellant’s position.

As counsel for the prosecution pointed out, the jury might have convicted the appellant of manslaughter on more than one basis.  It might have considered that he killed his daughter without accepting any part of his account on 18 April 1996 concerning how her death occurred but not been satisfied beyond reasonable doubt that he intended to kill her.  Alternatively, it might have accepted parts of what he told police on 18 April 1996 but considered that the violence necessary to cause his daughter’s death from the subdural blood clot according to the medical evidence was such that the appellant foresaw the likelihood of her death or, more probably, that death would have been reasonably foreseeable as a likely consequence by an ordinary person in his position.  No doubt such possibilities were apparent to counsel who defended the appellant at his trial.

It would also have been obvious to the appellant’s trial counsel that, while there was a theoretical chance of acquittal either if the appellant’s evidence at his trial left the jury with a reasonable doubt concerning whether he killed his daughter or his statements to police on 18 April 1996 left the jury with a reasonable doubt concerning whether, although he killed his daughter, it was an accident, there was also a prospect that the jury would convict him of murder.  Of the two possibilities, the latter might well have seemed much more likely.  Indeed, it would be surprising if acquittal was regarded as other than a remote possibility.  In practical terms, the appellant’s main hope lay in a conviction of manslaughter, not murder.

It is readily understandable why, in such circumstances, a decision would have been made to seek a direction from the trial judge which emphasised manslaughter rather than murder as a possible verdict for the jury’s consideration and simplified the jury’s task in reaching such a conclusion by excluding from discussion a possible acquittal on a basis which was contrary to the appellant’s own sworn evidence.  There were plain forensic advantages for the appellant associated with the re-direction sought by his counsel and given by the trial judge in accordance with that request, and it is manifest that that course involved no miscarriage of justice.

The other ground of appeal related to what was contended to be a misdirection concerning what the jury was told regarding any conclusion which they might reach that the appellant had lied.

After informing the jury that it would be wrong to conclude that because the appellant was guilty of incest he must be guilty of, or was more likely to have committed, murder, his Honour went on:

“Similarly, of course, the mere fact that you come to the conclusion that he has told lies does not mean that he is guilty of murder and it does not necessarily mean that he is more likely to have committed the murder because he is a liar; somewhere along the line, either in talking to the police or in giving evidence here, the accused clearly has given a false account.  You are entitled to use that when you are evaluating the whole of the evidence, but you do not simply say: he has told lies, therefore he must be guilty.”

Later, his Honour stated:

“Again I come back and stress to you, you do not go drawing any direct conclusions because of the admission of incest or because you have come to the conclusion that he has told lies.  There is no direct evidence linking him to the girl or to the death on 7 July and, without [evidence of his statements to police on 18 April 1996] it seems to be conceded there would be no case.”

His Honour then discussed the competing submissions which had been made by counsel in relation to the appellant’s statements to police on that date.

No redirection was sought, and it is again obvious that the appellant seeks in this appeal to take advantage of a suggested error by the trial judge deliberately encouraged or acquiesced in for tactical advantage at trial. 

Any detailed discussion by his Honour of the use which might be made by the jury of lies by the appellant in accordance with Edwards v. R. (1993) 178 C.L.R. 193 would have increased the risk of the appellant’s conviction for murder.  There were four occasions when the appellant made statements which the jury might have considered involved deliberate lies related to material issues told in circumstances in which the explanation for the lies was a knowledge that the truth would implicate him in the offence.  On the first two occasions when the appellant was interviewed by police, his possibly false statements included his denial that he had seen his daughter for some months and had not seen her on the day when she disappeared.  If the statements on those two occasions stood in isolation and the jury was to be asked to use what was then said as lies indicative of guilt, directions in strict accordance with Edwards would have been called for. 

In his next interview with police, the appellant admitted killing his daughter.  The prosecution relied upon the truth of that admission, not upon its untruth.  Other matters the subject of the appellant’s statements to police on that occasion, if relied upon as lies indicative of the appellant’s guilt, might also have called for more elaborate directions in conformity with Edwards if there had been no further statements by the appellant.  However, as previously noted, the appellant gave evidence at his trial denying that he had killed his daughter and claiming that what he had told the police on the last occasion when he was interviewed was untrue and giving a reason for those untruths.  If the jury rejected his evidence, as it must have done, directions in compliance with Edwards must have highlighted to the jury that it could use his false testimony as evidence of his guilt of murder if satisfied - as must have been inevitable - that his false evidence was deliberate and related to a material issue and was given because he knew that the truth would implicate him in the offence.

Any technical defect in the summing-up - if there was one - favoured the appellant, and the omission to seek any further directions with respect to the use the jury might make of lies by the appellant - which undoubtedly occurred on any view of the matter - was a deliberate tactical decision.^[1]  Indeed, it was probably not only a correct decision but one which was successful, in that the appellant has been convicted only of manslaughter, not murder.

The remaining ground of appeal related to the trial judge’s refusal to exclude the evidence of a witness, Robert Crameri.  One aspect of Crameri’s evidence related to the relationship between the appellant and his daughter and involved an incident in which the appellant struck his daughter when she was about 19 years old because she had told a lie.  During the course of argument, it was effectively conceded that the prosecution was entitled to adduce evidence of the relationship which existed between the appellant and his daughter, including both its sexual and violent components.

However, Crameri also gave evidence that, on the same occasion, the appellant, who was very drunk, accused Crameri of molesting his daughter and threatened Crameri by pointing a loaded rifle at his head.  To show that he was serious, the appellant fired a shot through the laundry door and then put another bullet in the weapon.  The matter was resolved when the appellant’s daughter and Crameri both denied any impropriety.

The prosecution sought to sustain the admission of that evidence on the ground that it showed that the appellant was sexually possessive towards his daughter.  If such a view is arguable in the context of the appellant’s admitted incest with his daughter, it adds little if anything to the uncontroverted evidence of the appellant’s incest and violence towards his daughter.  Its probative value, if any, was slight.  On the other hand, the evidence was highly and disproportionately prejudicial.

All too often, cases come before this Court in which a prosecutor has introduced evidence of marginal relevance because it portrays an accused in a bad light in respect of a matter having nothing or little to do with the offence charged.  Obviously, the purpose of such evidence is to prejudice the accused.  Then, as in this case, the submission is made that the appeal should be dismissed under sub-s. 668E(1A) of the Code on the basis that there has been no substantial miscarriage of justice, a proposition which implicitly asserts that the evidence did not have its intended prejudicial effect.  It should be made clear that it is not the role of a prosecutor to seek to increase the chance of a conviction by introducing evidence that has little purpose or relevance other than to create a general adverse impression of an accused in the minds of the jury.  There are well known restrictions upon the use of such evidence, which should not be adduced when it has at most marginal relevance because of the risk that its prejudicial effect will imperil the fairness of the trial.

In the present case, the evidence of the altercation between the appellant and Crameri, which occurred more than two and a half years prior to the death of the appellant’s daughter, was so far removed from the issues that I am satisfied that it would not have prejudiced the appellant by creating an impression in the minds of the jury that he was a man who might kill or by increasing the jury’s dislike for him; there was a body of evidence properly before the jury which demonstrated that he was a man who conducted an incestuous relationship with, and was violent towards, a disabled daughter. 

After some hesitation, I have also concluded that the evidence would not have affected the appellant’s credibility in the eyes of the jury.  Because of the nature of his relationship with his daughter and his admissions to police, which were not contested except on the basis of the appellant’s claim that he had lied, there was a very strong prosecution case that he had killed his daughter in circumstances which were not authorised or justified or excused by law, and thus was guilty of manslaughter.  Conviction was certain unless a doubt was raised in the minds of the jury by his testimony at trial that he had not killed his daughter and had lied to police when he confessed to doing so.  The only other possibility of an acquittal of manslaughter depended upon the jury’s rejection of his sworn evidence that he had lied to police when he said that he had killed his daughter but had been left in some doubt by his unsworn evidence on the occasion of his admissions that, when he killed his daughter, he did so by accident.  The latter possibility is so remote as to be fanciful, and it is plain that the jury did not accept his testimony that he had lied to police when he admitted that he killed his daughter.  On that basis, the appellant’s conviction was inevitable, and I am satisfied that there has been no substantial miscarriage of justice.

I would accordingly dismiss the appeal.

As earlier noted, the appellant also applied for leave to appeal against the sentence of 12 years’ imprisonment imposed upon him following his trial.  In large part, the argument for the appellant was based upon the premise that, having regard to the way in which the case was presented to the jury, it might have convicted him on the basis of his statements to the police on 18 April 1996, including the appellant’s claims of accident.  The submission is misconceived, in that, once the appellant was convicted of manslaughter, the judge was entitled to form his own view of the facts provided that the basis on which he proceeded was consistent with the verdict of the jury.

Shortly stated, the appellant caused a subdural blood clot in the head of his disabled daughter, to whom he had previously been violent and with whom he had conducted an incestuous relationship for some years, and then - for reasons which are unclear - tied her hands behind her back and placed her body in a river.  He was, as was conceded, totally without remorse.

In such circumstances, I can discern no basis for concluding that the sentence imposed was outside the exercise of a sound sentencing discretion, and I would refuse the application for leave to appeal against sentence.

In summary, the appeal against conviction should be dismissed, and the application for leave to appeal against sentence refused.

REASONS FOR JUDGMENT - DAVIES JA

Judgment delivered 9 May 1997

I have had the advantage of reading the reasons for judgment of the President and McPherson J.A. and agree with both of them.  Consequently I agree that the appeal against conviction should be dismissed and the application for leave to appeal against sentence should be refused.

REASONS FOR JUDGMENT - McPHERSON JA

Judgment delivered 9 May 1997

I agree.  On the principal point, which is whether it was open to the jury to convict the appellant of manslaughter, it should be stressed that the case is not, like Griffith v. The Queen (1994) 69 A.L.J.R. 77, one in which criminal responsibility for the death of the victim rested on s. 289 of the Criminal Code, which was held in Callaghan v. The Queen (1952) 87 C.L.R. 115, 124, to call for criminal negligence of the kind or degree required at common law as explained in R. v . Bateman (1925) 133 L.T. 730.

Nothing in the nature of a “dangerous thing” was involved in the death of the victim in the present case.  According to the appellant’s account of it, her death was brought about by her banging her head on the side of the van when he used force to pull her into the vehicle.  His claim to avoid criminal responsibility rested on the proposition that her ensuing death was an “event” that occurred “by accident” within the meaning of s. 23 of the Code.

It was for the Crown to exclude or rebut the hypothesis of accident once it was fairly raised by the evidence at the trial.  That could be done in one of two ways: either by showing that the appellant in fact foresaw that death was likely to result; or, more plausibly, that such a result was reasonably foreseeable: van den Bemd v. The Queen (1994) 170 C.L.R. 137.  If either of these alternatives was established, the killing ceased in terms of s. 23 to be an event that occurred by accident, and became one for which the appellant was criminally responsible as unlawful homicide or manslaughter.

In deciding whether the Crown had succeeded in discharging the burden of proving the death was “non-accidental” in this sense, the jury was confronted with the appellant’s explanation of what had happened, which was that she had bumped or hit her head on the vehicle when he grabbed or pulled her.  The jury were, however, entitled to decide that, while the appellant had on his own admission caused the death of his daughter, that event had not come about in precisely the way he claimed.  Using their own everyday experience, the jury would have been justified in concluding  that death seldom ensues from a blow like that to the head except in circumstances in which extreme or excessive force has been used; and further that, if such a degree of force had been used, death was a reasonably foreseeable consequence of the appellant’s act in pulling his daughter into the vehicle.  In arriving at a conclusion to that effect the jury would have been entitled to rely on the evidence in the prosecution case that the appellant had been prone to using force against his daughter in the past, and that it was by no means improbable that he had done so to excess on the occasion on which her death resulted.  On the basis of that evidence and of the general improbability of the thing, they would have been justified in discounting his explanation of the comparatively mild degree of force he claimed to have used.

In sentencing the appellant for the offence of manslaughter of which he was found guilty, the learned trial judge was entitled to approach the verdict as having been arrived at by the jury by a process of reasoning to the foregoing effect, and to impose an appropriate sentence accordingly.

For these reasons and for those given by Fitzgerald P., I agree that the appeal against conviction should be dismissed, and the application for leave to appeal against sentence refused.