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R v Williams QCA 120
SUPREME COURT OF QUEENSLAND
R v Williams  QCA 120
WILLIAMS, Rodney Wayne
CA No 74 of 2020SC No 116 of 2019
Court of Appeal
Appeal against Conviction
Supreme Court at Brisbane – Date of Conviction: 20 March 2020 (Lyons SJA)
Date of Orders: 28 May 2021
Date of Publication of Reasons: 1 June 2021
22 April 2021
Sofronoff P and Mullins JA and Ryan J
Orders delivered: 28 May 2021
APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULARS – PARTICULAR GROUNDS – MISDIRECTION OR NON-DIRECTION – DIRECTIONS AS TO PARTICULAR MATTERS – OTHER MATTERS – where the appellant was found guilty of murder by a jury trial – where the deceased was a sex worker who had been previously charged with extorting money from clients on two separate occasions – where the appellant appeals the conviction on the grounds that the trial judge erred in law in directing a jury that evidence that the deceased had tried to extort monies from others was relevant to whether the appellant intended to kill her or do her grievous bodily harm – whether the direction occasioned a miscarriage of justice
APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULARS – PARTICULAR GROUNDS – MISDIRECTION OR NON-DIRECTION – DIRECTIONS AS TO PARTICULAR MATTERS – OTHER MATTERS – where the defence submitted that the deceased may still be alive and relied on the evidence given by two witnesses who identified the deceased at a time after she left the company of the appellant – where the appellant appeals the conviction on the grounds that the trial judge erred in warning that before the jury could act on this evidence that could raise a doubt about the appellant’s guilt, they had to be cautious about concluding that the evidence established the identity of the deceased – whether this direction occasioned a miscarriage of justice denying the appellant a fair chance of acquittal
M J Copley QC for the appellant
S J Farnden for the respondent
Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent
- SOFRONOFF P: After a 19-day trial, a jury found the appellant guilty of the murder of Tiffany Anna Taylor. He now appeals against his conviction. Originally, the notice of appeal contained a single ground of appeal, namely that the verdict was unreasonable and could not be supported by the evidence. At the hearing of the appeal, that ground was abandoned and, instead, the appellant was granted leave to put forward two new grounds:
“1. The learned trial judge erred in law in directing that the evidence that the deceased had tried to extort monies from others was relevant to whether the appellant intended to kill her or to do her grievous bodily harm alternatively the direction occasioned a miscarriage of justice.
- A miscarriage of justice was occasioned by a direction that before the jury could act on identification evidence apt to raise a doubt about guilt the jury had to be cautious about concluding that the evidence established the identification of the deceased.”
- For the reasons that follow, both those grounds should be upheld, the appeal should be allowed, the conviction should be set aside and there should be another trial of the charge.
- At the hearing of the appeal it was common ground that there was evidence, such as mobile phone use, the maintaining of usual contacts with friends and relations, the record of banking transactions and other matters of that kind, from which it was open to the jury to infer that Tiffany Taylor died on, or a short time after, 12 July 2015. She was pregnant at the time.
- Tiffany Taylor was a young woman who lived with a man named Hill. They were living at his parents’ house until they were evicted. After that, they lived in various hotels and motels. Their sole source of income to pay for their accommodation was Tiffany’s sex work.
- There was evidence that the appellant met Tiffany in order to have sex with her. Using the traces that Tiffany had left showing her contacts with men on the internet, as well as records of her mobile phone use, police identified the appellant as a person of interest and, in due course, police interviewed the appellant. He made admissions about meeting a girl for sex. He said that he told the girl that he had no money but that she wanted to meet him anyway. In fact, text messages later showed that he told the girl, who was Tiffany, that he had $500. As other evidence later showed, he told police several lies which were arguably material to show his guilt of killing Tiffany. There was other consciousness of guilt evidence in the form of the appellant’s attempt to leave Brisbane. It is not necessary to detail any of this evidence. By the end of the trial it was open to the jury to conclude that the appellant had met Tiffany in order to have sex with her and that he had killed her.
- The Crown called evidence from five of Tiffany’s clients. A man named Currie arranged to meet Tiffany through an internet site. He received a text message from her to the effect that she needed money to pay some bills. Currie went to the rendezvous but Tiffany did not turn up. He sent her a message saying, “Thank you for wasting my time”. They made another appointment. Currie drove past the meeting point and saw a girl who was probably Tiffany but did not stop and they did not meet. This time Tiffany sent him a message “saying thank you for wasting [my] time this morning”. Currie found her attitude aggressive and demanding and told her not to contact him again.
- Another client named Dodd met Tiffany and had several sexual encounters with her during the course of 2014. No payment was involved. Then, in July 2015, Tiffany asked Dodd to pay her for sex. He refused. Dodd said that Tiffany sent him a text message “you know, ‘Piss off’ and something, ‘Stick it up your ass,’ you know, told me I could go somewhere else, and I’m like, ‘Well, fine,’ something along those lines”.
- In March 2015 a man named Turner also met Tiffany on an internet site. They met and Turner drove to a park where they spent about an hour talking. Turner paid Tiffany $200 for her company. Tiffany told him a tale about her “guardians … holding her prisoner until she paid off some debts.” For a month afterwards they texted each other frequently. Turner said that they had sex together twice. During this period he gave Tiffany about $2,700 “to try and help her clear her supposed debts”. Tiffany kept asking him for money and, in April 2015, Turner had enough and told her so. Tiffany threatened to tell police that he had raped her. Turner went to police and reported this. Police arranged for him to meet Tiffany and, at the meeting, they took her into custody.
- A man called Moodie met Tiffany for sex several times during 2014. There was no payment involved. Then, in May 2015 Tiffany asked Moodie for money. When he refused, Tiffany first threatened to tell Moodie’s ex-partner about their relationship and then threatened to tell police that he had raped her. Moodie did not take either threat seriously. He said in evidence that he “basically replied, ‘You’re an idiot. Like, you just put that in text. Obviously it’s not true.’” Moodie continued to meet Tiffany after that. She told him that she was pregnant and that she was unhappy. They had sex again on a number of occasions.
- Another man, named Cannon, had a lengthy relationship with Tiffany during which he paid her for sex many times. She told him she needed money to pay rent and phone bills. Cannon lent her small sums of money from time to time, lent her a heater during the winter and even let her stay in his house for a few nights together with her partner, Hill.
- A fifth man, named Knowles, also had a sexual relationship with Tiffany. He had first met her when she was an 11 or 12 year old neighbour, living with her mother. In mid-2015 he learned that “she was on the street”. He got in touch with her and began to give her money, a thousand dollars to buy a computer and then “for rent and all that stuff”. Tiffany’s demands for money became frequent and, although Knowles did not says so expressly, it was apparent that she was giving him sex in return for his payments.
- The defence did not admit that Tiffany was dead but did not contend with any real conviction that she was still alive. Rather, the defence case was that the appellant had not killed Tiffany and argued that there was a real doubt that she died on 12 July 2015, the day she met the appellant, because two witnesses might have seen her after that date. The Crown called these two witnesses in accordance with its duty to call all relevant evidence.
- Harley McDermott was watching television in August 2015 and saw a police announcement seeking information about Tiffany. A photograph of her was shown. Ms McDermott thought that she had seen a girl matching Tiffany’s description on about 17 July 2015, a date she could fix by reference to her daughter’s birthday, and reported this sighting to police. The sighting was momentary, occurring as Ms McDermott and the young woman passed each other in the street. It was clear that, by reference to her own height, Ms McDermott assessed the young woman as being taller than Tiffany and this raised a doubt about the identification. Otherwise, her description fitted Tiffany although the hair colour was different.
- Guy Bussenius had known Tiffany since about February 2011. On 3 August 2015 he was at a train station and saw a person who “looked similarly to Tiffany Taylor with another person”. He said, “I saw someone that was similar build and, yeah, looks. I couldn’t say it wasn’t her. I didn’t see her face …”.
- The first ground of appeal raises a question about how the jury was directed that they might use the evidence about Tiffany’s disposition towards men she met for sexual purposes.
- The prosecutor, Mr McCarthy, in opening the case, said this about the evidence concerning Tiffany’s demands for money:
“As you already heard some instruction from her Honour, the Crown does not need to prove that the defendant, Rodney Williams, had a motive to intentionally kill Tiffany in order to succeed in proving the charge before you. Nonetheless, the reason for intentional killing will undoubtedly, as a matter of human experience, be a matter in which some of you, at least – if not all of you – will turn your mind to at some stage. The why, as part of an explanation as accepting the Crown’s circumstantial case. What’s revealed from the contact with Tiffany with others using the Oasis platform?
Tiffany was as personality revealed [sic] from dealings with other customers as to have [sic] likely caused an incident, particularly if the prospective client did not pay or could not pay for services when she met them. We’ll also consider through the Oasis platform of Tiffany’s considered [sic] desperate financial position, which the Crown says would only have accentuated the likelihood of this young girl having taken some umbrage or challenge when she met a prospective client without money. And bluntly, ladies and gentlemen, on the defendant’s own words through his statement and later in his interview, he had none, or at least none that he was going to pay that girl.”
- Mr McCarthy then outlined the evidence of the witnesses and said:
“You’ll readily conclude through the course of that evidence presented to you in this trial that Tiffany is (a) no shrinking violet when she’s not getting what she wanted and (b) certainly would not have been providing sexual services for free without some resistance. The Crown contends that the climactical [sic] meeting with the impecunious Rodney Williams was always going to lead to altercation between the two of them and, you may think, readily provide a context as to the why of what took place during that rendezvous.”
- The prosecutor raised the issue of motive once more in his closing address. He said:
“And what [sic] do I talk about this motivation? Because you’ve learned about Tiffany Taylor and, I think, as repugnant, again, as you might think Mr Knowles is, he probably well put it when he was spreading out fifty dollar notes on piece – on a table, taking a photo of it and sending it to Tiffany. And I don’t mean that in a disparaging way of that young girl but she was very money-driven. What do you think was the likely outcome where she negotiated in a payment of money with someone, turned up for the meeting and he didn’t have any money for her? You see, ladies and gentlemen, the conduct of Tiffany Taylor with each of those men demonstrates that Tiffany Taylor was a young woman very focussed on money and desperately so.”
- As has been said, there was circumstantial evidence which is not necessary to relate that could have satisfied the jury that the appellant killed Tiffany on 12 July 2015. Proof of intent also lay in the circumstantial evidence. The Crown very frequently relies upon evidence that a defendant had a motive to kill in order to prove an intention to kill. Motive, if proven, is a matter from which a jury might properly infer intention. Although in ordinary speech, purpose, desire and motive may be used interchangeably, in the law, motive describes the reason which prompts the formation of intention.
- The prosecutor was rightly diffident about advancing a theory that Tiffany had tried to extort the appellant. The fact that Tiffany made two unsuccessful extortion attempts against men who had paid her for sex could not possibly have sustained a finding by the jury that she had tried to extort the appellant. An attempt to use the evidence in this way would immediately have raised many issues for the Crown. For example, it would have been necessary to consider the probative value of this evidence as similar fact evidence in a prosecution case. If the jury had been asked to conclude that the appellant had been motivated to kill Tiffany because she threatened that she would make a false complaint to police about rape, then that conclusion would have been an essential intermediate step in the jury’s reasoning to a finding of intention and, thereby, to a verdict of guilty. If that had been the Crown argument, the fact that Tiffany had tried to extort the appellant had to be proved beyond a reasonable doubt. However, that kind of problem did not arise because the Crown did not rely upon any argument of that kind. Such a possibility was the impermissible speculation and the evidence of Tiffany’s attempts to extort two of the five clients who gave evidence was actually irrelevant to the prosecution case. Rightly, the Crown did not attempt to use the evidence in this way. It was relevant to prove that Tiffany was engaged in sex work; otherwise, the narrative about her relations with the appellant would have been incomplete and, possibly, misleading. It hardly requires evidence to satisfy a jury that a sex worker would become irate upon learning that a client who wanted sex did not have the money to pay for it but that fact could hardly raise an inference that the appellant killed Tiffany and it could certainly not raise an inference that he intended to kill her when he did so. Accordingly, in whatever way the Crown meant the jury to use this evidence, which is unclear, it is apparent that the Crown could not, and did not, attempt to use the evidence as evidence proving intention to kill.
- However, the evidence was relevant to the defence case and, undoubtedly, it was called by the Crown because the defence wanted to place these facts before the jury. The defence used this evidence about Tiffany’s relations with men in order to raise the possibility that Tiffany’s way of life might have resulted in her death at the hands of some unknown client. Accordingly, defence counsel submitted to the jury that, because Tiffany lived “in a dangerous world” and “was surrounded by sharks”, there was “a percentage chance that Mr Hill [her partner] killed her” and “there’s a percentage chance that someone else – something else in her life caught up with her”. In this connection, counsel referred to the “two instances where she tried to extort men”.
- It was in the context of the way in which the case was conducted by the parties that the learned trial judge told the jury:
“In this case, the prosecution has also argued that there is evidence of motive, and has relied on this as part of its circumstantial case. The Crown argues that in this case Mr Williams’ motive was to kill Ms Taylor when she tried to extort him, as she had done before: that is, she threatened to allege she had been raped when he did not pay. It is a matter for you as to whether you consider such a motive unlikely or whether it is totally disproportionate to an intentional killing as the Crown alleges. The defence, essentially, argues that there’s no basis for such a motive.”
- After the jury retired for the day, the prosecutor raised the following issues with the learned trial judge:
“MR McCARTHY: … Your Honour included the motive direction. I don’t know---
HER HONOUR: The which one?
MR McCARTHY: The motive and the ---
HER HONOUR: The motive – yes.
MR McCARTHY: ---lack of motive direction.
HER HONOUR: I was – when I was going through, I thought I’ve forgotten motive – I’ve forgotten motive. Then it was there. So I obviously moved things around a bit.
MR McCARTHY: The motivation raised by the Crown as that there was some altercation as a result of a failure to pay. I don’t know that the motivation sat only with ---
HER HONOUR: Extortion.
MR McCARTHY: --- being extortion. It was really that the motivation was that there had been some altercation as a result of the defendant not being in a position to pay.
HER HONOUR: Well, you can add – I think you can add that to the clarity for tomorrow, as well.
MR McCARTHY: Yes. I have no ---
HER HONOUR: Yes.
MR McCARTHY: ---cavil with the direction.
HER HONOUR: I wasn’t certain – I wasn’t certain enough about there being an altercation. That.that [sic] that was the – I thought it was always that there would be a threat to – to extort.
MR McCARTHY: Physical or verbal altercation I suppose is the ---
HER HONOUR: All right.
MR McCARTHY: ---issue.”
- A little later, there was this:
“HER HONOUR: I mean you do talk about a motive. But I don’t refer to it in any great detail other than in your summary of your case. Do you articulate it in this, Mr McCarthy?
MR McCARTHY: In the sense that I talk about the contextual background and she was unlikely to take it well with someone turning – that that, essentially, is how it’s framed.
HER HONOUR: All right.
MR McCARTHY: She was unlikely to – to react well to someone turning up to that – and that’s why the motive is expressed in such a loose way. Because, as my learned friend directs attention, there’s no – apart from that, I can’t say ---
HER HONOUR: Yes.
MR McCARTHY: --- advance that ---
HER HONOUR: There’s a ---
MR McCARTHY: --- on that occasion I know she was going to extort. She hasn’t extorted every one of these men. The principle is that there’s a contextual background that might explain the killing. I think I would prefer it framed in terms of motivation ---
HER HONOUR: Certainly.
MR McCARTHY: --- in that sense.
HER HONOUR: Certainly.”
- On the following morning, at the beginning of the continuing summing up of the case, her Honour said:
“Where I finished yesterday was talking about motive. And I gave you the warning about motive. And I should remind you that the prosecution says that the potential motivation for the murder was that it was the result of a verbal or physical altercation with Ms Taylor when the defendant had no money to pay her. So it’s a fairly broad motive.”
- Her Honour directed the jury about the relevant law concerning intention and about how intention might be proved by inference and then gave the following direction about proof of intent in this case:
“It is a matter for you as to whether you consider there is evidence of motive.
So consider the lead up to the event. That is, what happened before the alleged death. You have heard the arguments of the Crown and the Defence in this regard. You have got their contacts over the Oasis platform, you have got some of the texts. There was clearly contact between Mr Williams and Ms Taylor on that morning. There was evidence of conversations on that Oasis platform which seemed friendly. They were clearly planning to meet for sex. It was clear Mr Williams did not have money to pay, and it would seem that, from the text messages, Ms Taylor was insisting on money, but you have heard Mr Mac Giolla Ri’s arguments, are you satisfied it was Ms Taylor who was sending those text messages? We also know that we have evidence from two former clients from Ms Taylor, that she had previously tried to extort money from men, and in fact, had been charged with extortion. We also know that Mr Moodie, in particular, was in a relationship which did not initially involve payment, but those demands evolved subsequently.
Now, I repeat the warnings I gave you about drawing inferences. There must be a logical and rational connection between the facts you find and the inferences you draw. So we’re talking about the drawing of an inference about intention. If there is an inference adverse to Mr Williams and one in his favour, you may only draw an inference of guilt if it so overcomes any other possible inference as to leave no reasonable doubt in your mind. As I have previously indicated to you, you can take all of that evidence of what happened before, at the time of, and after it is alleged the death occurred. You can take that into account when considering this issue of intent. The Prosecution has to prove that the defendant had the necessary intention at the time of the alleged offence. It need not have been a longstanding intent and it is sufficient for it to have been formed in a matter of seconds, say, in a sudden flash of temper. In other words, it may be a momentary intent formed immediately before the relevant event.”
- Mr Copley QC, who appeared for the appellant, submitted that the directions set out above left it open to the jury to speculate that Tiffany’s proclivity to demand and extort money was proof that the appellant intended to kill her. He submitted that this hypothesis was not open on the evidence and, indeed, had been disavowed by the Crown.
- That submission should be accepted. In my respectful opinion, the directions set out in paragraphs  and  wrongly invited the jury to conclude that they might find that Tiffany tried to extort the appellant and that, in order to prevent her from making a false complaint, he formed the intention to kill her and did kill her. No such case was advanced by the Crown nor, on the evidence, could it have been. Evidence of motive to kill is strong evidence to prove both killing and intent because, as Lord Atkinson said once, it is more probable that people are killed by those who have some motive for killing them than by those who have not. The direction created a possible path to a verdict of guilty of murder which was not open.
- Consequently, Mr Copley’s submission that there has been a miscarriage of justice must be accepted.
- The appellant’s second ground of appeal concerns another plank of the defence case. As has been said, the defence only faintly argued that Tiffany might still be alive. However, the defence urged that she was still alive after she left the company of the appellant. The theory was that, if the jury was satisfied that Tiffany was dead, then it was her partner, Hill, who had probably killed her. In support of this theory the defence relied upon the evidence of Ms McDermott and Mr Bussenius, that has been set out earlier.
- If it was the Crown that had to prove that Tiffany was alive on the dates on which Ms McDermott and Mr Bussenius claimed to have seen her, their evidence would have called for stringent warnings to be given to the jury about the risks of mistaken identification. Indeed, such warnings were given in relation to certain identification evidence relied upon by the Crown for another purpose. However, the learned trial judge also warned the jury about the use of the identification evidence for defence purposes. After reminding the jury about the evidence given by Ms McDermott and Mr Bussenius, her Honour said:
“As I’ve said before, the evidence of each individual witness, whilst important in itself, should not be regarded by you in isolation from the other evidence adduced at the trial. Where evidence is given by a stranger to Ms Taylor, or a casual acquaintance, you should be cautious about concluding that identification has been established in such a case.”
- The reference to what the learned judge had said before was evidently a reference to the warnings given immediately before this statement and which qualified the prosecution’s reliance upon identification evidence to prove guilt. Her Honour gave the orthodox warning about the risks involved in accepting evidence of identification, namely that such evidence should be treated with care before being used as evidence of guilt. A jury must be given a warning about the potential unreliability of identification evidence when a substantial part of a prosecution case to prove guilt depends upon such evidence. That is because the warning is about the dangers of convicting an accused on such evidence when it is disputed.
- But such a warning is misplaced when the defence submits that the identification evidence impinges upon the prosecution case. That is because there is no onus upon the defence to establish identity. When evidence of this kind is exculpatory, it is not tendered to prove, or establish identity.
- The possibility that Tiffany was alive after the day upon which the Crown alleged that the appellant had killed her was an important part of the defence case but the defence bore no onus to prove that as a fact. On the contrary, the Crown had to satisfy the jury that Ms McDermott and Mr Bussenius had not seen Tiffany.
- The questions for the jury in relation to this identification evidence were, first, whether the jury accepted that Ms McDermott or Mr Bussenius saw Tiffany on a date after 12 July 2015 and, second, if the jury was not prepared to make that finding, whether that evidence nevertheless left the jury with a reasonable doubt about whether Tiffany was still alive after 12 July 2015. The jury ought to have been directed in those terms, which are conventional when dealing with evidence that is relied upon by the defence.
- The direction that the jury had to exercise caution before concluding “that identification has been established” wrongly suggested that the appellant bore a burden to prove that Ms McDermott and Mr Bussenius had seen Tiffany. It wrongly implied that the warnings that had just been given about the identification evidence relied upon to prove guilt applied equally to identification evidence that was relied upon by the defence to raise a reasonable doubt. In so doing, in my respectful opinion, the direction denied the appellant a fair chance of acquittal that should have been open to him.
- For these reasons, the appeal should be allowed, his conviction should be set aside and there should be a retrial.
- MULLINS JA: I agree with Sofronoff P.
- RYAN J: I agree with the orders proposed by Sofronoff P for the reasons given by his Honour.
 See eg Mutual Life Insurance Co of New York v Moss (1906) 4 CLR 311 at 317 per Griffiths J, at 323 per Higgins J; R v Plomp  Qd R 161 at 175 per Mansfield CJ, 185-186 per Wanstall J; R v Heath  2 Qd R 182 at 195 per Shepherdson J.
De Gruchy v The Queen (2002) 211 CLR 85 at  per Gaudron, McHugh and Hayne JJ.
Zaburoni v The Queen (2016) 256 CLR 482 at  per Kiefel, Bell and Keane JJ.
R v Ball  AC 47 at 68 per Lord Atkinson.
Domican v The Queen (1992) 173 CLR 555 at 561-2 per Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ.
Domican, supra, at 561.
- Published Case Name:
R v Williams
- Shortened Case Name:
R v Williams
 QCA 120
Sofronoff P, Mullins JA, Ryan J
01 Jun 2021
- White Star Case: