R v Mead[2017] QCA 229

SUPREME COURT OF QUEENSLAND

1. GOTTERSON JA:  On 2 August 2016, Raymond John Mead was found guilty at a trial of the murder of his step-daughter, Sherelle Anne Amelia Locke, on 16 February 2014 at Boronia Heights.  At the beginning of the trial, he pleaded guilty to manslaughter but the plea was not accepted by the Crown.  He also pleaded guilty to a second count that, on the same date, he unlawfully assaulted the deceased’s mother and his then partner, Marlene Sherelle Mead (now Marlene Locke), and did her bodily harm.  Each offence was charged as a domestic violence offence.
2. Mr Mead was sentenced to life imprisonment on the murder count and to a concurrent term of two years’ imprisonment on the unlawful assault count.  For reasons which it is unnecessary to detail here, his parole eligibility date was postponed by six months beyond the expiration of the minimum term of 20 years which he must serve on the murder conviction.  The sentencing took place on 2 November 2016.
3. On 4 August 2016, a notice of appeal against the conviction for murder was filed on Mr Mead’s behalf by his then solicitors, Lawler Magill.  A single ground of appeal was set out in that document, namely, that the verdict was unsafe and unsatisfactory.  An application for leave to appeal against sentence was filed by Mr Mead himself on 15 November 2016.
4. Mr Mead’s appeal and his application for leave to appeal against sentence were listed to be heard by this Court on 6 June 2017.  Mr Copley QC had accepted instructions to act for him and had prepared written outlines of submissions which had been filed with the Court on 16 May 2017.  The outline in relation to the conviction appeal foreshadowed amendments to the grounds of appeal stated in the notice of appeal.  However, at the hearing on that date, Mr Copley sought, and was granted, leave to withdraw.
5. The appeal and the application were both adjourned at Mr Mead’s request.  Both are listed for hearing on 19 October 2017.  Mr Mead is acting for himself.  On 20 September 2017, he filed a typed outline of submissions with respect to his conviction appeal in which he states that he is “applying for a full acquittal or a complete retrial” on the murder count.
6. In September 2017, Mr Mead applied to the Court of Appeal Registry for subpoenas to be issued to the following persons requiring them to attend and give evidence at the hearing of his appeal:

• Marlene Locke;
• Dr Alex Olumbe, Forensic Pathologist, who conducted an autopsy on the deceased and testified at Mr Mead’s trial; and
• Three of his children: Raechel Mead, Kayla Mead and Krystal Mead.

7. Later, on 25 September 2017, Mr Mead filed applications in the Registry for orders pursuant to r 108 of the Criminal Practice Rules 1999 granting him leave to adduce evidence from each of those persons in his appeal.  These applications were heard by me on Friday 6 October 2017.
8. After considering written submissions filed by both Mr Mead and Mr Michael R Byrne QC, Director of Public Prosecutions, addressing the applications, and hearing oral argument on them, I refused each of the applications.  As a consequence, subpoenas are not to be issued and served on any of those five persons.  The following are my reasons for refusing the applications to adduce evidence.
9. I am indebted to Mr Byrne for the following summary of Mr Mead’s arguments on appeal drawn from his outline:

“(a) The witness Marlene Locke “perjured” herself on 25 occasions.  In particular:

1. Critical aspects of Marlene Locke’s testimony were fatally contradicted by aspects of the medical evidence and other evidence.  (Referred to as Factors 1 to 5 inclusive)
2. Marlene Locke’s account of the appellant’s handling of the knife was so improbable as to be impossible to accept.  (Referred to as Factor 6)

2.  Inadmissible evidence was adduced on 18 occasions in the trial.  In particular:

1.  Evidence of Marlene Locke as to an earlier episode of domestic violence by the appellant towards her was inadmissible.  (This complaint commences in the second paragraph at page 7 of the appellant’s outline and picks up the matter raised in Mr Copley’s outline)

2.  Dr Olumbe’s opinion at R147.6 as to the likelihood of the fatal wound being caused by a fall was inadmissible.

3.  The appellant’s blood alcohol concentration was such that he was incapable of forming an intent.

4.  The negligence and incompetence of legal representatives resulted in a miscarriage of justice.  This complaint can be found interspersed throughout much of the outline, and predominantly concerns complaints that cross examination of various topics was not undertaken and that certain evidence was not sought or adduced in the defence case.  This complaint is closely interwoven with those contained in (a) and (b) above.”

10. That Mr Mead’s purpose in seeking to adduce evidence from these five persons is to assist in his arguments on appeal is evident from the affidavit he has sworn in support of each application.  I should say at once that none of this evidence is fresh evidence, that is to say, evidence not known to the defence at trial and whose existence could not have reasonably been ascertained at that time.  It all falls into the category of new evidence for which stringent tests, inspired by the high desirability of finality to litigation, have been devised.  None of the proposed evidence satisfies these tests.  Specifically, none of it would require the murder conviction to be set aside to avoid a miscarriage of justice.^[1]
11. It is convenient to consider the proposed evidence of Marlene Locke, Dr Olumbe and Mr Mead’s daughters separately.
12. Marlene Locke:  In his supporting affidavit, Mr Mead states that he wishes to cross-examine Marlene Locke on her “countless forms of perjury”.  In his oral submissions, he confirmed that that was the case.
13. The following is an illustration of what Mr Mead intends.  Ms Locke gave evidence that she was sitting next to the deceased on a couch.  Mr Mead was straddling the deceased.  He brought a knife from behind his back.  It was in his left hand.  He then stabbed the deceased straight on, in the left side of her chest.^[2]  Mr Mead contends that this account is “completely contradicted” by Dr Olumbe’s evidence (Factor 1).  He wishes to cross-examine Ms Locke further on her account.
14. The principal difficulty for Mr Mead is that were Marlene Locke to testify at the appeal, it would be as a witness called by him.  No evidence that she could give favourable to his case is indicated by Mr Mead.  Ms Locke would therefore be a hostile witness.  All Mr Mead could do is cross-examine her; and, indeed, that is all he wants to do.  He may not, of course, cross-examine his own witness.  Leave to do so would not be given.  To allow further cross-examination of Ms Locke would also offend the principle of finality.
15. At a practical level, Marlene Locke is a protected witness.  As such, she could not be cross-examined by Mr Mead himself.
16. It need be noted that, insofar as Mr Mead contends that cross-examination of Marlene Locke at trial by defence counsel was deficient, that contention is to be assessed within the framework of legal principles concerning the competence of legal representation at trial as enunciated by the High Court of Australia in TKWJ v The Queen.^[3]  Further cross-examination of Marlene Locke would not assist in the application of those principles in this case.
17. Further, each of the matters raised by Factors 1 to 6 is an issue which is properly dealt with in the course of considering the asserted unreasonable verdict ground of appeal.^[4]  Additional evidence from Marlene Locke could not assist in a consideration of whether the verdict was unreasonable on the evidence that was before the jury.
18. Dr Olumbe:  In his written outline, Mr Mead adheres to a version of events set out in a letter dated 21 January 2016^[5] in his handwriting, apparently intended for family members.  In it, he said that Marlene Locke pushed him to protect the deceased but that he lost balance and fell backwards onto to the deceased with the knife in his right hand.  He confirmed his continued adherence to this version at the hearing of the applications to adduce further evidence.
19. In evidence in chief, Dr Olumbe stated that the wound track on the deceased was single and regular.  He expressed the opinion that it would be unlikely that somebody would fall and cause “such a well measured and exacting kind of wound track and injury”.^[6]
20. In his supporting affidavit, Mr Mead states that “further testing” he had had done proves “beyond any doubt” that Dr Olumbe’s opinion was one that should not have been given.  However, what that testing is was not specified by Mr Mead.  Furthermore, it became evident at the hearing of the applications that either the testing had not been done or, if it had been done, Mr Mead did not know of its results.  However that may be, he did not have a record of any test results.  There is no application to adduce further evidence from the person who conducted the further testing.
21. In the result, Mr Mead’s objective in calling Dr Olumbe appears to be to cross-examine on some unspecified basis.  This application therefore faces the same principal difficulty faced by the application in respect of Marlene Locke.  As well, any assessment of the competency of the cross-examination of Dr Olumbe at trial does not fall to be assessed by reference to cross-examination of that kind.
22. Mr Mead’s daughters:  Mr Mead’s apparent objective is to adduce evidence from his daughters of a propensity on the part of Marlene Locke to attack him violently, sometimes with a knife.  His motive appears to be to counteract evidence given by Marlene Locke of an occasion in 2012 when, according to her evidence, Mr Mead threatened her with a steak knife.^[7]
23. Mr Mead made a deliberate decision not to call this evidence at trial.^[8]  That is a sufficient reason not to receive the evidence on appeal.
24. Whether a miscarriage of justice has resulted because of improper professional advice given to Mr Mead on which his decision was based, will fall to be determined according to the principles enunciated in TKWJ.  Without expressing a decided view on that issue, I would observe that there would appear to have been legitimate forensic reasons for defence counsel not to have adduced this evidence at trial.
25. First, counsel could legitimately decide to limit the amount of evidence concerning a violent household for fear of painting his client as a willing and continuing participant in it.  It also raised the risk of cementing a possible motive for the killing.  If called, there was a real risk that his daughters may have been seen by a jury as being partial to their father and giving only part of the true story.
26. Secondly, it is a legitimate approach not to blame the deceased in a homicide trial.  Similarly, where there is evidence that the defendant has previously asserted that the deceased and her mother are, in effect, “as bad as each other”, there is good reason not to blame the mother for her daughter’s death in case it engendered sympathy towards the mother and hence a critical view of the defendant in the jury’s collective mind.  Such an approach has a particular cogency where, as here, the mother witnessed her daughter’s violent death.
27. Aside from these considerations, the proposed evidence would lack relevance.  In Mr Mead’s versions to which I have referred, any involvement of Marlene Locke was reactionary to his possession of the knife in the vicinity of the deceased.  Whether or not she had been violent to others, including Mr Mead, in the past would be irrelevant to an assessment of the likelihood that she had acted in the protective way that he asserts.  Certainly, such evidence would not require the murder conviction to be set aside to avoid a miscarriage of justice.