R v Raye[2003] QCA 98

SUPREME COURT OF QUEENSLAND

[1]  DAVIES JA: I agree with the reasons for judgment of Mackenzie J and with the order he proposes.

[2]  WILLIAMS JA: I have had the advantage of reading the reasons for judgment of Mackenzie J. I agree with those reasons and the order he proposes.

[3]  MACKENZIE J:  This is an appeal against conviction for murder.  The basic facts are that the victim and the appellant had been in a relationship for a number of years.  The victim and her sister and her sister’s partner had been drinking throughout the day and into the evening.  At some time the victim, her sister and her sister’s boyfriend went to the victim’s aunt’s house in Mt Isa.  The appellant arrived later in the evening and was initially locked out but later let in by the victim’s aunt. 

[4] Some time later, an argument developed between the appellant and the victim and the victim was struck in the face.  There are varying accounts of what happened subsequently.  On one version the victim struck the appellant back.  It was common ground that, as a result of the assault, the victim was bleeding from the mouth and went to the bathroom.  The forensic pathologist found evidence of pre-death injury to her lips, consistent with a punch or backhand blow.

[5] There were different versions of the circumstances in which the appellant came to be in the bathroom with the victim.  On one version he went at the same time as the deceased.  On another he went into the kitchen and rifled through a drawer before going to the bathroom where the victim already was.  There was also a variance in the evidence as to whether he had said “I’ll stab her”.  On one account the victim then called out “don’t do that”.  Shortly afterwards the appellant left the house hurriedly.  The victim was found with a stab wound to her back.  A knife was found in the bathroom with the blood of the victim and the appellant on it.  The knife left in the bathroom was identified as one from the kitchen of the house.  The appellant was located some days later in Alice Springs.  Upon being found, he gave his father’s name instead of his.

[6] Dr Williams, the forensic pathologist, described finding a single wound to the victim’s back, 8 cm left of the midline and 30 cm below the top of the victim’s head.  The object that caused the wound, which was consistent with the knife found in the bathroom, entered the back of the chest, partially cut the fifth posterior rib, penetrated the left lung and heart and embedded in the back of the sternum.  The path was slightly above horizontal and slightly to the right.  The knife had travelled about 15.8 cm.  The knife found at the scene was 19 cm long.

[7] Dr Williams gave his opinion that infliction of the stabbing injury would have required significant force because of the fact that it had penetrated bone.  He also gave evidence that it was an awkward place for an injury to occur if self inflicted and that that explanation was very unlikely.  That subject was presumably pursued by defence counsel because there was evidence that on one occasion previously when violence had been inflicted on the victim by the appellant, she had stabbed herself in the arm. 

[8] There are two grounds of appeal.  The first is that the learned trial judge erred in admitting evidence of previous acts of violence by the appellant on the deceased.  The second is that the verdict of the jury was unsafe and unsatisfactory in that the verdict was against the evidence and the weight of the evidence and/or that the Crown case was not capable of excluding beyond reasonable doubt each of the limbs of s 23 and/or self defence.  However, the second ground was not developed except in conjunction with the first ground.

[9] The evidence admitted, over objection by the defence, was characterised as relationship evidence.  It concerned three discrete aspects.  One was evidence given by the victim’s sister of an occasion probably in June 2001, about a month before the victim’s death.  In the course of an argument the appellant hit the victim and kicked her while she was on the ground.  The second incident had occurred on 28 April 2000, about a year before the incident just described.  No witnesses gave evidence in this trial of observing what had happened.  However, the police attended on her in hospital and a statement was made to a police officer about a week after the incident had occurred.  At trial, evidence of what the victim had told the police officer was led in the form of a series of questions, some quoting directly from the statement and others paraphrasing it.  No doubt this was done by agreement for the purpose of ensuring that certain unduly prejudicial parts of the statement were omitted. 

[10] The third incident occurred on New Year’s Eve 1998.  According to her statement, the victim went straight to the police after she had run away from the scene of the assault on this occasion.  The police officer who took her statement was not called, but evidence of what was said was introduced into evidence by reading all but the last two paragraphs of the statement to the jury.  The fact that the statement had been made was formally admitted.

[11] While the periods between the incidents may appear at first glance to be relatively substantial, that view is rather illusory since from March 1999 the accused was serving imprisonment in relation to a head sentence of about 12 months, and from May 2000 was serving imprisonment in connection with a head sentence of 18 months for an offence arising from the offences of unlawful wounding and assault on the victim in April 2000.  In practical terms there was therefore little discontinuity in the existence of the relationship and the incidents sought to be led were not too remote or isolated to be used for the purpose intended.

[12] The appellant argued that the evidence led in connection with the two earliest incidents comprised the content of statements to the police, not accounts given in evidence of observations made by the witness.  It was submitted that in this respect they differed from the evidence admitted in Wilson v The Queen (1970) 123 CLR 334 where oral statements, made spontaneously by the victim and overheard by a witness, were held to be admissible.  In my view the distinction sought to be made has no force, at least since the enactment of s 93B and s 132B of the Evidence Act 1977.  Those sections apply to criminal proceedings against a person for an offence defined in Chapters 28 to 32 of the Criminal Code.  Chapter 28 includes the offence of murder.  Under s 132B(2) relevant evidence of the history of the domestic relationship between defendant and the person against whom the offence was committed is admissible in evidence in the proceeding. 

[13] If the evidence sought to be led fits the description of relevant evidence of the history of the domestic relationship, s 93B(1) provides that if a person with personal knowledge of an asserted fact made a representation about the asserted fact and is unavailable to give evidence about the asserted fact because the person is dead, the hearsay rule does not apply to evidence of the representation given by a person who heard or otherwise perceived the representation subject to the following qualifications.  The circumstances in which the hearsay rule does not apply are that the representation was:

(a) made when or shortly after the asserted fact happened and in circumstances making it unlikely that the representation is a fabrication; or

(b) made in circumstances making it highly probable the representation is reliable.

[14] The term “representation” is defined in s 93B(5) and includes a written representation.  A statement given to a police officer for the purpose of informing him of the circumstances of an offence committed against the person making it contains representations about asserted facts for the purposes of the section.

[15] In the case of the incident in 1998, the representations made to the police officer were made almost immediately following the incident.  There was a formal admission by the defence that the representations had been made.  In the case of the incident in 2000, the police officer involved in taking the statement gave evidence that the representations read from the statement to him at the trial were made to him.  Although those particular representations were not made until about a week after the event, the police were aware of the fact that the victim had been stabbed very close in point of time to the incident happening.  There is nothing to suggest, and nor was it submitted, that the statement eventually given was not made in circumstances making it highly probable that the representation is reliable.  In this instance, evidence was also given that the appellant had pleaded guilty to the offence of wounding.  The plea of guilty involved an admission of at least the necessary elements of that offence.

[16] With regard to the incident about a month before the victim’s death, the victim’s sister gave direct evidence of observing the incident as it occurred.  Subject to meeting the other requirements for admissibility of relationship evidence, her evidence was admissible independently of the Evidence Act. 

[17] The evidence given of statements made by the victim to the police was of a kind admissible under the Evidence Act.  The discretion conferred by s 98 to reject any statement or representation notwithstanding that the requirements of Part 6 of the Evidence Act are satisfied depends upon a reason being demonstrated whereby it appears to be inexpedient in the interests of justice that the statement should be admitted.  Section 130 preserves the power of a court to exclude evidence in a criminal proceeding if the court is satisfied that it would be unfair to the person charged to admit the evidence.

[18] Evidence of the state of a domestic relationship may be relevant for a number of purposes.  One is to assist in the choice between an innocent or incriminatory explanation of a particular event (Wilson v The Queen (1970) 123 CLR 334, 339, 344; R v Self [2001] QCA 338); or in proving the intent with which an act was done (Self; R v Chevathen and Dorrick (2001) 122 A Crim R 441); or in proving the accused’s state of mind (R v Anderson (2000) 1 VR 1).  Further, in Anderson, where the defences relied on were provocation and self defence, it was said at 12:

“In cases of this kind, where the parties have been living together for a substantial period of time preceding the events in question, courts have traditionally admitted evidence of the pre-existing relationship between them provided that it has a bearing on the facts in issue.  This is particularly so where the evidence is relevant to the state of mind of the accused at the time when the acts alleged occurred.  Thus such evidence has been admitted to prove motive or to establish the intent of the accused, or to negative a defence of accident, self-defence or provocation.”

[19]  Wilson at 338 explains the need to distinguish between transient flare-ups of anger or annoyance on the one hand and conduct showing ongoing hostility or enmity on the other.  It is necessary to ensure that evidence in the first category is not elevated to the status of evidence that the state of the relationship was of such a nature that an inference may be drawn that it was a deliberate or willed act of the accused that harmed the other spouse, or that the accused did something to the other spouse with a particular intent.  Whether evidence admissible as domestic relationship evidence should be admitted or excluded requires a judgment to be made in the context of the particular facts of the case.

[20]  Anderson (at 12 to 16) discusses the difference between propensity evidence and evidence tendered as relevant to the state of mind of the accused when a particular act is committed.  At 14 it is said:

“Where the evidence is tendered, not as evidence of propensity to commit the crime charged but as bearing on the accused’s state of mind at the relevant time, the judge must be satisfied that the evidence is relevant to a fact in issue, and must warn the jury that they cannot use the evidence for the impermissible purpose of demonstrating a propensity on the part of the accused to commit that crime.”

[21] It was reasonably anticipated in this case by the prosecution that issues of accident, provocation, and self defence were likely to be relied on by the appellant.  It was relevant to establish the nature of the relationship between him and the victim for the purpose of attempting to exclude those defences. 

[22] In his reasons for admitting the evidence the learned trial judge identified the prosecution’s obligation to negative the possible defences as one basis for admitting the evidence.  He referred to the passage from Anderson set out above in para [18].  He also held that the evidence provided context to the evidence of others as a basis for admitting it.  In my view it was not an error to admit the evidence.  The learned trial judge also considered and rejected an application for exclusion on the discretionary ground that the prejudicial effect of the evidence outweighed its probative value.  In my view he was not wrong in refusing that aspect of the application.  Given the nature of the defences relied on I am satisfied that the evidence had significant weight with regard to them.

[23] With regard to the use to be made of the evidence the learned trial judge specifically told the jury:

1.   that it was not evidence that the appellant was likely to have committed the offence under consideration;

2.   that guilt of the offence could not be proved by saying that because the appellant had previously assaulted the victim it was likely enough that he had again;

3.    that they were not permitted to use the evidence of earlier assaults to prove any element of the offence;

4.  that the evidence was introduced for a limited purpose, to show the nature of the relationship between the appellant and the victim and the nature of their interaction on the night in question; and

5.  that (echoing Barwick CJ’s words in Wilson (339)), it helped them to choose between alternative explanations, for example, whether the stabbing was accidental or not and whether it was done in self defence or not.

[24] To focus, as the written submissions do, on the last of these directions to submit that the evidence could only help if the jury used it as propensity evidence does not, in my view, do justice to the careful directions by the learned trial judge.  For the reasons already given the evidence was admitted for a purpose other than proving propensity.  It is not necessary to attempt to analyse the limits of s 132B more precisely to dispose of the appeal. There is no substance in ground 1.

[25] With respect to ground 2 it is submitted that the verdict was unsafe because the verdict was against the evidence and the weight of evidence, and was not capable of excluding beyond reasonable doubt that the stabbing was an unwilled act, or had occurred by accident or that it had occurred in self defence.  No complaint is made about the terms of the directions given on these defences.  In addition, although not specifically asked to do so, the learned trial judge directed on provocation, as he was obliged to do in the circumstances of the case.

[26] The appellant did not give or call evidence.  The circumstances of the offence already summarised and the medical evidence show that there was an ample basis for the jury to return a verdict of murder.  Given the state of the evidence there is no substance in the submission that the verdict was unsafe and unsatisfactory.  I would therefore dismiss the appeal.