R v Morrison[2001] QCA 184

SUPREME COURT OF QUEENSLAND

1. McPHERSON JA: The appellant was convicted at a trial in May last year of the murder of John Adadzynski (or John Ski, as he was known) and Jacqueline Leyden on 3 February 1999 at the Gold Coast.  They were found either in or near a lounge or family room in the downstairs level of unit 2 at 45 Woodroffe Avenue, Main Beach. Their throats had been cut and they were dead or dying.

2. The unit, which was divided into an upper and a lower level, was occupied by Mr Brendan Washington and Mrs Washington as their home. They lived on the lower level and their son Angus lived on the upper level. At the time in question, which was after 9 pm, they were out, but Angus was entertaining his girlfriend and fellow student, Ms Ying Ang, upstairs. They both heard angry shouting coming from the level below. Angus Washington said he heard a male voice, which he claimed to recognise as that of the appellant Neil Morrison shout "You dirty dog". He ran downstairs and found the two dying victims there. They were surrounded by blood, groaning and unable to speak. Angus called out to Ms Ang to go down and telephone the emergency number.

3. She ran downstairs intending to go to the Felix restaurant next door. When she came out of the front door, she saw a man lying on the tiled forecourt in front of the house. It was the appellant Morrison. He had a wooden handled knife sticking out of his neck. She ran screaming into the restaurant and sought help. Ms Tonya Earle, who was working there as a waitress, rushed out and saw the appellant lying on the ground next door with the knife sticking out of his neck. She knelt down and told him the ambulance was coming in response to an emergency call which, the evidence showed, was sent and received at 9.53 pm. Soon afterwards, Mr Brendan Washington arrived back at the unit. He had been away for about 15 minutes, leaving Mr Ski and Ms Leyden there. On returning home, he saw the appellant lying on the ground. By this time the appellant was trying to pull the knife out of his neck.

4. Mr Washington ran into the house and saw the blood and the dying people there. He rushed out to the front again and found that the appellant had gone. He saw him being assisted down the road by others. Mr Washington ran after them. When he caught up with them, he saw that the appellant was holding a knife in his left hand, with which he lunged at Washington stabbing him in the arm. Washington shouted "Stop him, he's getting away"; he tackled him to the ground and started punching him. He was still doing so when the ambulance arrived at 9.59 pm. He later recognised the knife (ex 40), which was about 30 cms long, as similar to one from his kitchen, which he said was now no longer there.

5. The Crown case was that the appellant had killed Mr Ski and Ms Leyden, and then stabbed himself in the neck to make it look as if he too were a victim of an attack by someone else. At the trial, the defence suggested that some other unidentified person was responsible for all three crimes. Mr Ski was a dealer in drugs for which he was facing sentence in the Supreme Court, and drugs were found in the possession of Ms Leyden after her death. Dr Rosemary Ashley, forensic pathologist, gave evidence that the deaths had been caused by someone who had cut the throats of the two victims standing behind them "posteriolaterally". That, and the angle of the wounds suggested an attacker who was "more likely" right handed, but it "could be a left hand". In her opinion, "somewhat more than moderate" force would have been required to inflict the fatal wounds. According to Dr Ashley, Ms Leyden was probably seated in a chair (in which in fact Angus Washington found her afterwards) when she was attacked. Mr Ski was considerably taller than the appellant, which might have made it difficult to reach his throat from behind. His body was found lying on the floor of the passage way into the family room.

6. The significance of the suggestion that the wounds were inflicted by someone from the rear and right of the victims was that the appellant is naturally left handed, which made it less likely that he had killed them. Moreover, he had been admitted to hospital on 11 January 1999, and later discharged on 19 January, which was only about two weeks before the murders. A stroke was suspected, but a CT scan revealed no abnormality. Nevertheless, during his stay in hospital, he was assessed as having a weakness in his right arm, and a brace was provided to facilitate his use of his right hand. At the trial, however, there was evidence from prosecution witnesses of their having, in the days before the murders, seen the appellant with the brace removed using his right arm and hand. On 1 February, Ms Frizell, who worked at the bar in the Felix restaurant next door to the units, saw the appellant engaged in a dispute with another male customer. She saw the customer backing away in an attitude of submission or surrender, saying "sorry, sorry, sorry", and she saw the appellant then putting a knife away on his left side. It was not the knife used to commit the murders. She also saw the appellant fitting the brace back on his right arm.

7. Also on 1 February, the appellant had visited the Washingtons' home uninvited at about 9.00 pm. Angus Washington went downstairs and allowed him to stay for a while. At that time, the appellant had the brace on his arm. To keep it in place, it had a rubber band or bands which the appellant demonstrated he was able to use to flick or project a peanut or other such object. Having the brace on his right arm, he presumably used his left hand for this purpose, although the evidence on this point is not precise. Angus told the appellant it was time for him to go, turned his back, and, when he looked at the appellant again, he saw he was holding a knife, and making "licking gestures" towards it.

8. Then there was Mr Ensor, who was a friend of the appellant. He was one of those who assisted him away from the front of the unit after the murders on 3 February. At about 3.30 pm on the afternoon of the same day, the appellant had joined Mr Ensor at the Blue Grotto, where he was having lunch. They stayed there until about 7.30 pm. During that time the appellant was drinking VB stubbies, which he held in his right hand, sometimes with the support of his left hand and sometimes unaided. The appellant at one stage produced a knife, which he held in his right hand with the blade pointing straight up, with his arm bent at the elbow at an angle of 45°. On leaving, they went to Felix's restaurant, where the appellant had a drink in company with others. The next Mr Ensor saw of him was later in the evening when a girl came racing into the restaurant and said "Excuse me, your mate is in the street with a knife". He went out and saw the appellant, and told him to put the knife down, to which the response was "Fuck off, Mick. I don't care about my life". The appellant started to move backwards and was nearly hit by a car. Ensor continued to follow him at a distance, when Brendan Washington ran past him, grabbed the appellant, and started punching him. Mr Ensor tried to pull him off and was himself knocked down. Then the ambulance arrived and the appellant was loaded in to it. It was then 9.59 pm.

9. Viewed in isolation from other evidence against the appellant, a jury might well have had a doubt whether the Crown's hypothesis that the appellant had committed the murders, and then stabbed himself, was correct. At the hearing of the appeal, the appellant applied to adduce further evidence consisting of affidavits from the appellant himself, a Mrs Arrowsmith and her son Dean. They deposed to difficulties that the appellant had experienced in using his right hand during and after his stay in hospital from 11 to 19 January 1999. Mrs Arrowsmith said that before the trial she had made this evidence known to the solicitor from Legal Aid, who was acting for the appellant, and to counsel who appeared for him at the trial. This, it was said, raised a case of incompetence on the part of counsel, which had produced a miscarriage of justice at the appellant's trial.

10. On the appeal, no attempt was made by the Crown to cross-examine any of the deponents. On the morning of the appeal hearing, Mr Murray for the appellant had had a telephone conversation with counsel for the defence at the trial (who was then in, or on the way to, Cunnamulla), as a result of which Mr Murray said he was of the view that an adjournment of the appeal "may not be necessary"; but he nevertheless submitted that "there might well be merit in adjourning …despite the material that has been revealed in the last 24 hours". Under pressure from the Court, Mr Murray eventually applied for an adjournment of the appeal hearing because, he said, of the content of a document under the hand of Dr Mann that was ex G to the affidavit of Ms Thomson of Legal Aid.

11. It will be necessary to return to some of this material and in particular to a letter which became ex 1 on appeal. In the meantime, it is sufficient to say that I can see no indication of incompetence on the part of the solicitors or the experienced counsel who represented the appellant at the trial. The evidence of Mr Dean Arrowsmith was confined to a visit or visits he made to the appellant during the period he was in hospital from 11 to 19 January. Mrs Arrowsmith's evidence extended to later occasions when she said she observed the disabilities in the appellant's right hand. Even those occasions, however, stopped short by a week or more of the observations of witnesses at the trial such as Megan Frizell, Angus Washington on 1 February, and Michael Ensor on 3 February, concerning the extent of the appellant's right arm disability (or lack of it) on February 1 and 3.  The problem facing the defence at the appellant's trial was not a novel one.  If those witnesses were called to testify about the appellant's right hand disability, it would only have served to make the absence of evidence from the appellant himself on the same subject unduly conspicuous by its absence The appellant, on the advice of counsel, or so he claimed, had elected not to give evidence at the trial when called upon in accordance with s 618 of the Criminal Code. When the other evidence against him is considered, one can readily see why that election was made.

12. The other evidence against him at the trial included, in the first place, the results of forensic analysis of the material found at or near the scene of the murders. On examination, the knife (ex 40) that the appellant was carrying when he was apprehended by Mr Brendan Washington (which was the knife seen protruding from the appellant's neck) was found to contain on its blade and handle traces of the blood not only of the appellant but also of the deceased Mr Ski. The jeans and shoes which the appellant was wearing also revealed traces of his own and Mr Ski's blood. The soles of his shoes were of a distinctive pattern. Bloody footprints of that pattern were found in the unit where the murders took place.

13. More compelling than this was the testimony of Ms Fishbourne. She was a colleague and friend of the deceased victim Ms Leyden, who was the proprietress of an escort agency. On the night of the murders, Ms Fishborne's car broke down or would not start. She decided to solicit Ms Leyden's assistance and telephoned her mobile number. The conversation that ensued can best be rendered in the graphic language of the witness at the trial. She was asked to relate the conversation, and said:

"I said to her that my car had broken down and could she help me. And she said, 'Oh, well, hold on a minute, I have got Blocky here with a knife. He is threatening to stab everybody'. It was sort of ---

What was the tone of voice that was being used there ? --- At that stage the tone of her voice was like she - like it was some sort of a joke again, you know.

All right ? --- Then her voice changed.

What was the next thing you heard after she said that ? --- She said, 'Oh my God, help me'. And it wasn't a joke.

What else did you hear on the telephone ? --- Blocky - Blocky threatened her first.

What did he say ? --- He said, 'that’s it, call me Blocky. You are a fucking cunt. You are a fucking dog'.

What was the next thing you heard after that ? --- Her voice was different.

What did she say ?--- She said, 'Oh my God, help me'.

What was the next thing you heard ? --- It was sort of like a groaning or funny sound that I couldn't - it was like she was in pain and trying to speak to me or - I visualise bad things in my mind. I just couldn't work out what was going on.

I want to confine you to what you actually heard on the telephone, okay ? What was the next thing ? --- That was about it. That was about it. I just kept calling out to her.

What did you do with your phone ? What did you do next ? --- I just kept calling out and calling out and there was no answer.

How long did you stay with the telephone trying to talk into it ? --- I am not too sure. I think I panicked and just hung up and called straight back."

Mrs Fishbourne's second telephone call elicited no response from Ms Leyden, so she telephoned Ms Leydon's daughter's number. The daughter's friend Jarna McLean answered the call, and Ms Fishbourne told her what she had just heard Ms Leyden say.

14. No objection was taken to what Ms Leyden had told her. In any event, the evidence of Ms Fishbourne was plainly admissible under the principle in Ratten v The Queen [1972] AC 378, 391. In the words of Lord Wilberforce in that case, it was "forced" from Ms Leyden "by an overwhelming pressure of contemporary event" and so "carried its own stamp of spontaneity". As such, it was admissible evidence of the res gestae of Ms Leyden's murder. Indeed, in one sense, it is a stronger case than Ratten because the inevitable inference is that Ms Fishbourne was a witness, even if only aural and not visual, to the murder of Ms Leyden as it was taking place. The mobile phone was later found still clutched in the victim's hand. Ms Fishbourne's recognition of the appellant's voice and her account of what he said was evidence of his presence at the time of the killing, and it simultaneously supplied a motive for it. Ms Fishbourne also gave evidence that the appellant and Ms Leyden had for the past year or so been in a "relationship", which was accompanied by physical and verbal abuse of her by him. She called him "Blockhead" or "Blocky", which he resented. There was also evidence at the trial that before these events the appellant had formed a belief that he was suffering from a brain tumour and had not long to live. This incidentally ties in with his statement to Mr Ensor, after being told to put down the knife, that he didn't care about his life.

15. The jury could not have failed to be deeply impressed by the testimony of Ms Fishbourne. It was largely unchallenged in cross-examination except that it was put to her that what she heard Ms Leyden say was that the appellant was "hitting" or "attacking" her. Jarna McLean later gave evidence in the prosecution case that this is what Ms Fishbourne had related to her when she telephoned Ms Leyden's daughter after the event. Ms Fishbourne was adamant that that was not what Ms Leyden had said to her. Even Ms McLean's version of what Ms Fishbourne had  told her had been said by Ms Leyden ended with the statement "He's got a knife".

16. There was evidence at the trial from a medical practitioner who attended the appellant after he was brought into hospital on the night of 3 February that the appellant might possibly have suffered retrograde amnesia. At the trial the appellant himself gave no evidence to that effect. As is demonstrated by his own affidavit tendered on appeal, it did not affect his ability to give evidence that he was suffering from a disability of the right hand before the murder. It would have been quite impracticable to have called evidence to that effect from Mrs Arrowsmith and her son Dean without eliciting adverse comment and conclusions as to why he himself had not given evidence about his disability. There can be little doubt of the tactical prudence of his election not to testify at the trial, by means of which he avoided subjecting himself to extremely damaging cross‑examination about the events that resulted in the deaths of Ms Leyden and Mr Ski. Without evidence from him, Ms Fishbourne's evidence about the last telephone conversation with Ms Leyden was uncontradicted.

17. The only remaining matters in the appeal are, first, the admission of the testimony of Ms Frizell and Angus Washington about the appellant's actions in producing a knife on separate occasions on the evening of 1 February. The evidence of Mr Ensor about the Blue Grotto incident was not the subject of the same complaint on appeal. The testimony of the first two of those witnesses was admitted over objection early in the trial. Her Honour may at that stage have been under the impression that the knife in question was the knife that was used to commit the murder. That turned out not to be so. The murder weapon (ex 40) was much larger, and evidently came from the Washingtons' kitchen. In summing up, the trial judge clearly warned the jury not to treat it as evidence of a propensity on the appellant's part to use a knife. It was, however, fairly capable, as Thomas JA suggested on appeal, of being considered evidence of the appellant's dexterity in the use of either of his hands on occasions shortly before the murders, and, as I would add, as a demonstration of the appellant's apparent confidence in his physical ability to use a knife if occasion demanded. In any event it would, in my opinion, not be a sufficient ground for upsetting the verdict at the trial.

18. The other matter to which reference has already been made in passing is the statement of Dr Mann in ex G to Ms Thomson's affidavit, which was read on appeal. He said:

"The wearing of the splint to maintain extension of the wrist [on appellant's right arm] would I believe enable him to grasp a knife or other stabbing implement with sufficient force to inflict mortal wounds. Not wearing the splint would weaken the grip on any weapon and thereby impair the facility but not the ability to inflict mortal wounds with a non-dominant hand."

This was part of the material collected by the defence in preparation for the trial. One can readily understand why Dr Mann and the Arrowsmiths were not called as witnesses for the defence.

19. Finally, there is the further ground on which the appellant supported his application for an adjournment of the appeal before us. A letter (ex 1) was tendered on appeal by the appellant. It is dated 1 May 2001 and is from Dr J S McDonald, Medical Director of the Security Unit at Princess Alexandra Hospital, to which the appellant was transferred on 8 February 1999 for post-operative treatment of the wound he sustained on the night of the murders. The letter concludes with the following three paragraphs:

"There is no documented objective evidence of any weakness or disability in Mr Morrison's right upper limb in the Princess Alexandra Hospital records. A copy of a CT scan report from the Gold Coast Hospital reported no abnormality on CT scan of the brain. A subsequent CT scan of the head at PAH on 8 February 2001 showed some dilatation of a part of the right internal carotid artery and it was recommended that a contrast CT scan be undertaken. The contrast CT scan was completed on 7 March 2001 and was reported as 'Evaluation of the portion of the right internal carotid artery was difficult although once again it appeared slightly prominent on one slice'. It was thought that a Magnetic Resonance Imaging Study was warranted and this is booked to be undertaken in mid-May 2001.

Mr Morrison also has an appointment to be reviewed by the Neurologists in the Security Unit Princess Alexandra Hospital towards the end of May.  In any event, it should be noted that any disturbance on the right side of the brain would affect the left side of the body and it is therefore unlikely that the abnormality in the right internal carotid artery would produce any symptoms in the right wrist or hand.

In summary, there is no objective evidence documented in the Princess Alexandra Hospital records of disability of the right upper limb and in particular a minor abnormality on the CT scans of the brain is noted to be on the right side of the brain and thus would not affect the right side of his body."

20. I need not rehearse what was said by this Court in refusing the application for adjournment. It followed three occasions on which the appeal had already been adjourned on the application of the appellant. Suffice to say that Dr McDonald's letter gives no support to the appellant's hypothesis that a Magnetic Resonance Imaging Study would, or even might, support a claim that he was suffering from an underlying condition that disabled him from using his right arm to carry out the stabbings on 3 February 1999. Information that such a Study might conceivably produce has no discernible relevance to any actual or potential defence that the appellant raised, or might have sought to raise, at his trial in May 2000. Indeed, the severity of the stab wound he himself sustained on the night of the murders attests to the force that must have been used to inflict it.  If the jury concluded (as they plainly did) that the prosecution was correct in contending that that wound was self-inflicted, there was ample evidence that the appellant was also physically capable of killing Ms Leyden and Mr Ski by cutting their throats using either one hand or the other to hold ex 40. As to that, there was nothing at all to displace the compelling inference that arose from the evidence at the trial that it was the appellant himself, and not some unidentified other person, who inflicted all three wounds on the  night of 3 February 1999.

21. In my opinion, the appeal against conviction should be dismissed.

22. THOMAS JA:  The relevant facts and issues are set out in the draft reasons of McPherson JA which I have had the benefit of reading.  I agree with his Honour's reasons save for the second half of paragraph [20]. 

23. I would make the following further observations. There are only two points raised on the appeal. The first, in effect, is that trial defence counsel was flagrantly incompetent in failing to adequately present a defence based upon the appellant's physical incapacity to have performed the stabbings. As to this, counsel for the appellant on the appeal, Mr Murray, conceded that on the material available to him this ground was difficult to support. I agree with the concession and like McPherson JA am unable to find any indication of incompetence on the part of the solicitors or counsel who represented the appellant at trial. It is not necessary to say any more on this point.

24. The other ground was that the learned trial judge erred in admitting evidence of the witnesses Megan Frizell and Angus Washington as to the appellant's conduct, including his use of a knife in separate incidents on 1 February 1999. In each incident the appellant was observed to do something with a knife. The incident described by Frizell revealed some aggression by the appellant towards a third person. The evidence of Washington showed that the appellant was at that time able to hold a knife in his right hand and that he had some dexterity with it. Each of these pieces of evidence was capable of showing that he was a man who tended to carry a knife with him and Frizell's evidence might suggest that he was a person who was prepared to produce a knife in a threatening way. The submission for the appellant is that such evidence tends to show that he was a man who carried a knife and that it is "propensity evidence" which fails to satisfy the requirements of Pfennig v The Queen.^[1]

25. In my view the evidence in question was not receivable as "similar fact" or propensity evidence, but it was not received or presented to the jury on that basis. It was rightly received as evidence of the physical capacity of the appellants to commit the crimes. That was a very relevant matter in the present case. On this issue the evidence of Frizell and Washington was cogent, and the Crown was prima facie entitled to call such evidence to rebut a defence of physical incapacity. The circumstance that such evidence might also show the accused to be a person of bad character or to have behaved badly on one of the occasions in question is a circumstance that activates a discretion to exclude such evidence, but it is not a factor that even prima facie requires the rejection of such evidence. The mere fact that such evidence may reveal criminal disposition is not enough to exclude it if it is probative of the crime or rebuts a defence otherwise open to the accused.^[2]  A balancing exercise is required on the part of the trial judge, the relevant principles of which are discussed in R v Hasler ex parte Attorney-General.^[3]  The relevance of the evidence of dexterity and physical capacity to use a knife amply justified its reception.  The circumstance that Frizell's evidence also showed the appellant in an unfavourable light does not in my view come close to requiring its exclusion.

26. Indeed, as the reasons of McPherson JA demonstrate, the Crown case was extraordinarily strong. It included evidence from a witness who actually heard the occurrence of Ms Leyden's stabbing. That evidence directly identified the appellant as her attacker.

27. In my view the appeal is without merit and should be dismissed.

28. CHESTERMAN J: I agree with the reasons for judgment of McPherson JA.