The Queen v Rushton[1997] QCA 171

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 98 of 1997

Brisbane

THE QUEEN

v.

JOHN CLEMENT RUSHTON

Appellant

Fitzgerald P

de Jersey J

Dowsett J

Judgment delivered 17 June 1997

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

APPEAL ALLOWED, CONVICTION QUASHED AND RETRIAL ORDERED.

REASONS FOR JUDGMENT - FITZGERALD P

Judgment delivered 17 June 1997

The appellant has appealed against his conviction in the Trial Division at Brisbane on 7 March 1997 of murdering his then wife, Joyce Jessie Rushton (“Mrs Rushton”), at Lakeland between 1 October and 31 December 1981.  There are two grounds of appeal.  It was submitted that a verdict of acquittal should be entered because a reasonable jury could not be satisfied beyond reasonable doubt that the appellant intentionally killed Mrs Rushton, the only basis on which murder was put to the jury.  Alternatively, it was submitted that a retrial should be ordered because prejudicial evidence was wrongly admitted.

The prosecution case against the appellant was entirely circumstantial, and it was common ground that the issue raised by the first question was whether the circumstances left open the rational possibility that the appellant had not intentionally killed Mrs Rushton or whether the only reasonable inference was that he had done so. 

Mrs Rushton disappeared in late 1981, probably in late November.  At the time, she and the appellant and their two children, Debra, who was 14, and Shaun, who was six, lived in a caravan at Lakeland, a small, remote North Queensland town, since about June 1980.  Apart from what is later stated, there is no evidence of family friction or domestic violence.  While the children were on an overnight school camp, the appellant unexpectedly arrived to collect them, telling them that their mother had left.  When the children were brought back to their residence by the appellant, Debra observed that much of her mother’s property, including her jewellery box with some jewellery and her makeup case, were still there, but that her favourite blue and white striped dress, a watch and some cook books were missing.  The appellant gave some, or perhaps all, of the jewellery to Debra but burnt Mrs Rushton’s clothes and other property.  On the evidence, Mrs Rushton was never seen again, no attempts were made to find her, and she was not reported as a missing person. 

After Mrs Rushton’s disappearance, the appellant engaged in a series of relationships under a false name and a farrago of lies, which had him in various roles including a knight, a Baptist Minister, a nuclear physicist, a naval commander and an ASIO operative.  Different stories, some of which must have been false, were also given in relation to Mrs Rushton’s disappearance. 

Initially, the appellant told his children that their mother had presented him with papers to put them in a home and he had refused.  She had then departed with a Baptist Minister named Peter Broughton, who had arrived to take her away on an aeroplane piloted by one David Hurse.  This was consistent with threats Debra said had been made by her mother to put her into a girls’ home or leave.  Debra also gave evidence that she had experienced difficulty in her relationship with her mother, and that her mother told her before she left for the school camp in November 1981 that  she would not be there when Debra returned home.  There was also some other evidence that Mrs Rushton was unhappy at Lakeland and wanted to leave.  However,  the appellant’s initial explanation of their mother’s absence to his children was plainly false if other witnesses were to be believed.  Broughton gave evidence that he had not seen Mrs Rushton since the early 1960s when she was a parishioner, and Hurse denied that any such flight took place.  Some time later, the appellant told Debra that Broughton was not involved in her mother’s disappearance.

The appellant and his children left Lakeland without any explanation within three days of Mrs Rushton’s disappearance and moved to Cairns, although the appellant later returned to Lakeland with a trailer to remove larger possessions, and the appellant sold his caravan and his children collected their books from the school at Lakeland.

In late 1981, the appellant transferred a joint account into which pensions for himself and Mrs Rushton were paid into his own name, but allowed the payments for both to continue.  In order to transfer the account, the appellant forged Mrs Rushton’s signature.  When the appellant’s pension entitlements were investigated in 1982, he provided a statement that Mrs Rushton had left him on 25 November 1981 but was believed to be living in the Cairns region.

Not long after Mrs Rushton’s disappearance, the appellant had telephone conversations with his sisters, Ms Annette Gillett and Mrs Marion Chalmers, and told them different stories.  Mrs Chalmers was initially told that Mrs Rushton had left, presumably with Peter Broughton, and later told that Mrs Rushton had fallen overboard from a boat.  The latter version was also given to Ms Gillett.

Shortly before Christmas 1981, the appellant and the children arrived at the home of a family called Blandford in Cairns where they stayed for a period.  Mrs Blandford said that the appellant informed her that Mrs Rushton had gone off with another man. 

Shaun initially remained in Cairns while the appellant and Debra went to Mackay, where Shaun joined them about three months later.  While in Cairns, Debra asked the appellant if they could go looking for her mother and he agreed, although no such search took place.  Again in Mackay, Debra asked where her mother was and if they could look for her, and the appellant told her that her mother and Broughton were in Darwin and they could go there to look for her.  However, a few days later, the appellant told his children that he had contacted the police and had been told that their mother had fallen off a boat in the Timor Sea and was dead.  Later, he told the children that Mrs Rushton had died of a heart attack and was buried in Cooktown, and instructed the children to give that account to others to give their mother some “dignity”.

While living in Mackay, the appellant and his children adopted the name Clements in order, he told them, to start a new life.  In April 1982, he acquired a false birth certificate from South Australia in the name of Clements by use of a false statutory declaration.  After the appellant’s fabrications had introduced his alleged role with ASIO, he told his children that the government had changed his name because of secret missions which he had undertaken for ASIO, some in the company of their mother.

The first of a number of other sexual relationships which the appellant engaged in took place in Mackay early in 1982.  When they went to Mackay, the appellant and Debra lived in a caravan park and shortly afterwards he commenced a relationship, which lasted about one month, with a Ms Phyllis Wright.

Subsequently, Ms June Matthew (“Ms Matthew”) responded to a newspaper advertisement by the appellant, who introduced himself as Jack Clements when they met.  They formed a relationship and the appellant moved his caravan onto Ms Matthew’s property.  Her divorce was finalised in the second half of 1982 and they married on 11 December 1982.  The appellant was married under the false name Clements.  Under questioning, he said that he was not concerned that his marriage with Ms Matthew might be bigamous because, notwithstanding the presence of a priest and witnesses and the signing of a register, he did not believe his marriage to Mrs Rushton was valid.  Ms Matthew was originally told that Mrs Rushton had died of a heart attack during sexual intercourse and was buried in the Lakeland/Cairns area, but later was told that Mrs Rushton had gone away with a Baptist Minister and committed adultery.  A further story told to her involved Mrs Rushton falling off a boat in the Timor Sea during an ASIO-related activity and drowning.

In about 1984, the appellant, Ms Matthew and his children moved to Torbanlea near Maryborough and, from about 1986, the relationship between the appellant and Ms Matthew began to deteriorate.  Separation occurred in late 1988 to early 1989, and they were divorced in 1989.

Prior to that time, the appellant had met Ms Eve Ritter (“Ms Ritter”), to whom he gave his name as Jonathon or Jack Clements.  They were married in September 1989, at Maryborough, by David Blair, a Christian Outreach Centre pastor.  Blair gave evidence of an approach by the appellant a couple of months before the marriage for a confidential conversation.  The appellant related an account of Mrs Rushton’s death, in which she was “blown away” while they were on patrol near Papua New Guinea for the Navy, and said that there would be no record of her death.  He also mentioned the name Rushton and said that he had been involved in some ageing experiments and given injections to counteract this process.

Ms Ritter said she was first told by the appellant that Mrs Rushton had died from a heart attack.  Later, he persuaded her not to contact police in relation to some sapphires and other things stolen from her house, saying “... that because of his involvement with ASIO and the two names, that if I rang the police, it would end our relationship, because he could be accused for the murder of Joy and he would get 10 years in gaol.”  He implied that his ASIO involvement could cause misunderstanding and lead to his wrongful conviction.  Three other different accounts of Mrs Rushton’s death were also given to Ms Ritter.  One involved ASIO, Peter Broughton and active duty in the Timor Sea by himself and Mrs Rushton.  The appellant asserted that Mrs Rushton was blown to pieces by a bullet from a Bren-gun and there were only pieces of a blue and white striped frock to pick up.  On another occasion, Ms Ritter told the appellant that she thought that they were not married and that Mrs Rushton was not dead.  According to Ms Ritter, the appellant laughed and said, “Oh, we’re married alright, and Joy’s dead.  I checked her out.  I can never be charged with her murder because the police will never find her body.”  Thirdly, in the context of a conversation in which he suggested that Ms Matthew knew what had occurred and intended to have him charged, the appellant told Ms Ritter that he had shot Mrs Rushton in the back of the head while she was urinating because she was very jealous of the appellant’s involvement in ASIO and was about to reveal ASIO’s secrets.

Finally, Ms Joyce Hopkins, another woman who met the appellant as the result of a newspaper advertisement, was told in 1991 that Mrs Rushton was killed in an ASIO mission on a boat on which she was a rear gunner when she was blown to pieces off Timor.

In what has been said to this point, no mention has been made of the evidence which the appellant submitted had been wrongly admitted.  That evidence aside, while the evidence was not so overwhelming that the jury necessarily had to reach such a conclusion, there was ample evidence upon which a reasonable jury, properly instructed and acting reasonably, could have been satisfied beyond reasonable doubt that the appellant intentionally killed Mrs Rushton.   There was a considerable body of evidence to support such an inference to the exclusion of any other rational possibility.  I do not think it is necessary to repeat, or to further summarise, what has been stated above in support of that conclusion.  Although the appellant’s submissions on this part of the case involved criticism of prosecution witnesses, reference to probable memory loss in the more than 15 years since Mrs Rushton disappeared, and reliance on aspects of the appellant’s conduct which it was suggested were indicative of innocence and evidence of the appellant’s daughter’s conversation with her mother shortly before she disappeared, his principal argument depended upon the proposition that, because he was a liar and many of his lies were far-fetched if not bizarre, self-incriminatory statements which he made lacked credibility or reliability and should have caused the jury to doubt their truth and accuracy.  Such a conclusion does not seem to me required either in law or in logic.  Nor do I think that the circumstance that the appellant might have had reasons for the lies which he  told related to, for example, his series of relationships, leads to the conclusion contended for by the appellant.  The jury was entitled to conclude that the appellant had told many lies, including in his testimony in the course of the trial, and to use those lies as evidence of guilt provided that the tests established by Edwards v. R.^[1] were satisfied.  Further, even though it concluded that the appellant was a liar and that many of the statements he made both in the period between Mrs Rushton’s disappearance and his trial and in the course of his trial were not only false but incredible, it was entitled to decide that his self-incriminating statements implicating him in the death of Mrs Rushton were true.

Accordingly, the appellant’s claim to a verdict of acquittal should be rejected.

As mentioned earlier, the appellant’s other point was that evidence had been wrongly admitted.  Shortly stated, evidence was led from the appellant’s daughter of a single occasion, more than a year prior to Mrs Rushton’s disappearance, when there was  “sexual intimacy” between the appellant and his daughter.  There was no evidence that Mrs Rushton was aware of the incident or that there was a risk to the appellant that his daughter might tell her mother.  On the contrary, on the evidence Debra had a loving and close relationship with the appellant, and indeed it was part of the prosecution case in this Court that his daughter’s evidence inaccurately favoured the appellant.

Initially, the trial judge took the material portion of the appellant’s daughter’s testimony to indicate that there had been a single incident of incestuous sexual intercourse.  However, his Honour subsequently departed from that position when the prosecution apparently conceded, as it did in this Court, that the evidence merely established a single instance of some unspecified sexual misconduct which, nonetheless, necessarily involved the appellant in the commission of another criminal offence, different from the charge of murder on which he was on trial, and presented him unfavourably to the jury.  Even if this ambiguous piece of evidence had some potential relevance, for example, as was claimed by the prosecution, to the appellant’s motive for killing Mrs Rushton and/or the relationship between them, its prejudicial value grossly exceeded any possible probative value which it had.  If the trial judge had a discretion to admit or reject the evidence by reference to considerations of a fair trial, it should plainly have been rejected on the basis that its prejudicial effect far outweighed any possible probative value.

However, I doubt whether there was any discretion to be exercised.  The evidence could not satisfy the test established for the admissibility of such evidence in Pfennig v. R.^[2] and was, in my opinion, legally inadmissible.

It was not argued for the prosecution that there had been no substantial miscarriage of justice if the evidence was wrongly admitted.  Regrettably, therefore, this is another case in which there must be a retrial because a prosecutor has successfully called evidence having no direct relationship to the subject matter of the charge which it must have been known would adversely influence the jury against the appellant at his trial and, it should also have been appreciated, had little, or no, probative value.

I would therefore allow the appeal, quash the conviction, and order a retrial.

REASONS FOR JUDGMENT - de JERSEY J

Judgment delivered 17 June 1997

I have had the advantage of reading the reasons for judgment of the President, with which I agree.

There was undoubtedly, to my mind, sufficient evidence upon which the jury could exclude beyond reasonable doubt any reasonable explanation of the events consistent with the appellant's innocence.

The regrettable difficulty about sustaining the conviction arises, however, from the reception of the vague evidence of the unspecified "sexual intimacy" between the appellant and his daughter on one occasion some months before the disappearance of Mrs Rushton.

At the outset, the learned trial Judge ruled that evidence could be led that the appellant "maintained an incestuous relationship" with his daughter while the family lived at Lakeland Downs, on the ground that it was potentially probative of the relationship between the appellant and his wife, and because it may go to motive.  The Judge noted the difficulty of ruling on such a matter before hearing the evidence. 

The appellant's daughter's evidence in chief on the point was limited to the following:

"MR RIDGWAY:  Mrs Baldwin, was your relationship with your father intimate?-- Yes.

By that I mean sexually intimate?-- Yes.

Were you menstruating when you were living at Lakeland Downs?-- Yes.

Right. Did this sexually intimate relationship continue during the period that you lived at Lakeland Downs?-- It only happened once.

When was that?-- At Lakeland Downs.

Right. What do you mean ‘it only happened once’?-- Intimacy.

I see. All right.  When was that in relation to your mother's disappearance?-- Shortly after we arrived there.

I see. After that what was your relationship with your father?-- It was fine.

Was there any element of that relationship which was of a sexual nature? -- No.

All right?-- It stopped.

Why did it stop?-- I don't know, it just stopped.

Did you discuss it with anyone?-- No."

One suspects from the prosecutor's questions and his apparent reaction to the daughter's evidence that "it only happened once", that the prosecutor expected evidence of a much more substantial sexual relationship.  That would indeed be consistent with the basis upon which he had earlier sought the trial Judge's ruling in face of the defence objection.

The words "sexual intimacy" were put to the witness by the prosecutor.  The witness did not elaborate upon them.  She was not cross-examined as to what precisely occurred - perhaps for reasons of sensitivity.  The cross-examination stopped at a challenge, as may be seen from the following:

"MR COPLEY: ... you remember yesterday telling the learned Crown Prosecutor that there was an occasion of sexual intimacy between you and your father after the arrival at Lakeland Downs?-- Yes.

I put to you there was never, ever such an event?-- There was once."

At the conclusion of the evidence at the trial, counsel for the defence sought the discharge of a jury on the ground that this evidence had been wrongly admitted.  The learned Judge ruled against that submission.  He pointed out that the evidence given "did not come up to what was considered during argument on the first day of trial", in that she gave evidence of only one act of intimacy.  He concluded, however:

"I remain of the view that an incestuous relationship between the accused and his daughter in 1981 could constitute evidence of motive, and evidence of such a relationship at about that time is, in my view, admissible. ...

In my view, the limited evidence, as it stands from Debra Baldwin, could provide the jury with a possible basis of motive. That is particularly so when regard is had to other evidence as to contemporaneous events at Lakeland. There is evidence which the jury may accept as indicating that Joyce Jessie Rushton was jealous of her daughter and that such jealousy affected their relationship. There is evidence such as the ultimatum allegedly made by Joyce Jessie Rushton shortly before she was last seen alive that either the children should go into a home or she would go. Those statements and other statements and conduct of like kind can, in my view, only be properly evaluated given knowledge of the relationship which existed between father and daughter which was other than the one which one might naturally infer.

The fact that incest had occurred on one occasion is, in my view, relevant to the consideration of the other evidence to which I have referred.  It is another one of the circumstances to which the jury should, in my view, have regard in considering the whole of the evidence in this trial."

In his summing up to the jury, the Judge said this:

"You can have regard to the evidence of the accused's relationship with his daughter, Debra. If you accept her evidence - and this is a question again of accepting or rejecting evidence - if you did accept her evidence, there was one act of incestuous intercourse some months prior to the leaving. That may or may not, in your view, establish some motive for some conduct on the part of the accused. It may well be just another one of the circumstances that you cannot ignore, if you are satisfied that it did happen, when you are evaluating the evidence."

The Judge was asked to redirect then, on the basis that the evidence had not established incest, being confined unspecifically to "sexual intimacy".  He redirected accordingly:

"In relation to the relationship between Debra and the accused the phrase that Debra used was ‘sexually intimate’. Now, it's a matter of what that meant. I did use the term ‘incestuous’ and that, of course, does imply a full act of intercourse. Whether the phrase sexually intimate goes that far or not, again is a matter for you.  I just draw your attention to the fact that that is the phrase that she used and she said that that incident of sexual intimacy occurred, ‘Shortly after we arrive there.’ They arrived there around about June 1980 on the evidence, so it's shortly after that, whatever that may mean."

The significant features for the present are these: the evidence was confined to there having been one act of unspecified "sexual intimacy" between the appellant and his daughter at least some months before October 1981 when the mother was last seen alive; there was no evidence from which the jury could reasonably have inferred that the mother ever came to know of that act of sexual intimacy; there was no evidence to suggest a likely possibility that the act would ever be revealed - the evidence of loving closeness between the appellant and his daughter in fact went the other way.  While I can see that insofar as the evidence indirectly reflected on the relationship between the appellant and his wife, and that the evidence could theoretically have therefore been relevant, I have much greater difficulty accepting that so far as it went, it could suggest motive.  But taking account of the features I have mentioned, its probative value was at best tenuous and speculative.  On the other hand, the evidence was potentially very prejudicial to the appellant: the jury would have interpreted the evidence as referring to unlawful and disgraceful conduct on the part of a father towards his daughter, and indirectly, towards his wife.

The evidence should have been excluded on either of the arguably relevant basis to which the President refers: if there was a discretion, on the ground that its highly prejudicial significance outweighed its bare and tenuous probative value; or if Pfennig (1995) 182 CLR 461 applies, on the ground that when added to the other evidence implicating the appellant in the crime, the evidence of this act which probably amounted to prior criminal activity could not possibly have warranted the jury's concluding - as the only reasonable conclusion open - that because he involved himself in that way with his daughter he must have committed the murder of his wife.

It is no doubt very tempting for prosecutors to seek to lead evidence which shows an accused involved in unlawful and morally reprehensible activity, provided there is some arguable basis for its relevance to the charge. But as this case illustrates, that relevance may be so tenuous that pursuing the tender of the evidence becomes plainly counter productive.  As the evidence unfolded in this case, considerably short of the expected level of proof, the trial Judge was placed in a very awkward situation.  Maybe the prosecutor had not appreciated the gravity of the evidence to be led.  A proper appreciation of its possible significance should certainly have involved questioning the witness before the trial to test the extent to which the evidence would go.  That may have occurred, of course, and I should therefore go no further here beyond cautioning about the undesirability of prosecutors failing to exercise prudent discretion in confining the evidence to be led in criminal trials: yielding to the temptation to call prejudicial evidence of only arguable relevance can produce most unsatisfactory results, as this case shows.

I agree with the orders proposed by the President.

REASONS FOR JUDGMENT - J A DOWSETT J

Judgment delivered 17 June 1997

I have read the reasons for judgment prepared by the President.  I am in agreement with what his Honour has said and wish to add only a few short comments.

The evidence of sexual misconduct by the appellant with his daughter was ambiguous, I suspect as a result of an understandable desire to deal delicately with her.  Unfortunately, such sensitivity cannot always be accommodated in a criminal trial.  If the evidence was admissible, it had to be raised fairly and fully.  However I am satisfied that it was not admissible.

The decision in Pfennig v R (1995) 182 CLR 461 requires that evidence indicating uncharged criminal misconduct, when led to prove the offence charged, must be objectively examined to ensure that there is a logical, intellectual process by which the jury might reasonably give probative weight to it.  In the present case, it was arguable that the alleged misconduct may have afforded the appellant a motive for killing his wife if he feared that she knew or might find out about the incident.  However, at the time of her disappearance, the incident was already well in the past, and there was good reason to believe that the deceased would not have found out about it.  Thus it was unlikely to have provided a motive for killing her.  The evidence may also have suggested that the relationship between the appellant and his wife was not satisfying to him, however that would not have said much about motive, particularly in view of the time which had elapsed since the incident.  In the circumstances, I do not consider that any tribunal of fact could logically have used the evidence to prove guilt.  Given its potential for prejudice, its admissibility was, in any event, to be determined by reference to the test prescribed in Pfennig (supra).  It did not satisfy that test.

The courts have long viewed with concern attempts to prove a charge by leading evidence of other criminal misconduct.  One ground for this concern has been the risk of prejudicial effect.  Another is the risk that the court will become absorbed in a secondary "trial" in which the allegations of uncharged criminal misconduct are challenged, distracting the jury from the real issue for consideration.

In the present case, it is tolerably clear that the evidence led was not that which the learned trial judge was asked to admit.  It seems that the daughter may not have come up to proof.  In leading such evidence, the Crown always accepts the risk that the evidence, seen at the end of the trial, will have no real probative value, although its prejudicial effect remains.  In those circumstances, any conviction will almost certainly be quashed.  Further, although decisions such as Pfennig provide a reliable test for admissibility, it is still a matter of judgment.  Inevitably, an appellate court will occasionally take a different view from that taken by the trial judge.  The Crown should keep these matters in mind when deciding whether to seek to lead such evidence.

The conviction should be quashed and a new trial ordered.