Regina v Noeline ANDERSON [2002] NSWCCA 194

New South Wales Court of Criminal Appeal

CITATION : Regina v Noeline ANDERSON [2002] NSWCCA 194 FILE NUMBER(S) : CCA 60109/00 HEARING DATE(S) : Wednesday, 1 May 2002 JUDGMENT DATE : 1 May 2002

PARTIES : The Crown Noeline Anderson (Appl) JUDGMENT OF : Meagher JA at 50; Bell J at 51; McClellan J at 1

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 70048/01 LOWER COURT JUDICIAL Ireland J OFFICER :

COUNSEL : G I O Rowling (Crown) Noelene Anderson (Appl in person) SOLICITORS : S E O'Connor (Crown) CATCHWORDS : CRIMINAL LAW - appeal against conviction and sentence - murder - defence of provocation - incorrect directions by trial judge as to the meaning of provocation contrary to s 23(2)(b) Crimes Act - incorrect suggestion by trial judge that the burden of proof was on the appellant - diminished impact of correct written directions LEGISLATION CITED : Listening Devices Act 1984 Crimes Act 1900 NSW s 23(1), s 23(4) DECISION : 1. Appeal allowed; 2. Conviction recorded and sentence passed in the court below quashed; 3. Order a new trial.

IN THE COURT OF CRIMINAL APPEAL 60109/00

MEAGHER JA BELL J McCLELLAN J

WEDNESDAY, 1 MAY 2002 REGINA v Noelene ANDERSON Judgment 1 McCLELLAN J: The appellant was convicted by a jury of the murder of her husband, Robert Keith Grosse at Rocky Point between 30 June 1995 and 31 July 1995. She appeals her conviction and seeks leave to appeal her sentence. 2 The Crown case was that the appellant and the deceased were married and had lived together in a house at Rocky Point. The deceased was a bricklayer and the house was constructed on land owned by the appellant. The relationship between them had been turbulent and at various times the deceased had left the home to live in a caravan park. The deceased had a criminal record, including convictions for assaulting the appellant. During one of their physical exchanges the appellant had bitten the deceased's ear. The Crown also alleged the appellant had, by means of false documents, secured a divorce from the deceased, of which he was unaware. 3 At some time before 1 July 1995, being the date upon which the Crown says the deceased was killed, the Crown alleged that the appellant decided that she would prefer a new partner and determined that it was necessary for her to kill the deceased. 4 On 30 June 1995 the deceased worked as usual for his employer. He was a reliable worker and the evidence disclosed that he drank little. On the following day, 1 July, the appellant drove the deceased to work where he appeared to be obviously unwell and unable to walk unaided. He was not drunk. After discussion about taking him to Wyong Hospital, the appellant took the deceased away. The Crown alleges that the appellant took the deceased home where she took advantage of his weakened stage, strangled him with a piece of cord or twine and buried him under a concrete slab under the house. 5 The appellant gave different accounts of the events of that day to different people. She did not acknowledge killing the deceased until much later. 6 On 3 July the appellant went to Goulburn where she met the man she proposed to live with, Mr Weaver, who was with his daughter, Carla. They stayed in a motel that night and on 4 July 1995 Mr Weaver and his daughter moved into the appellant's house. Mr Weaver remained for only a short period and on 19 July he left with his daughter and moved to a caravan park and then interstate. 7 The appellant gave a version of the events to the deceased's employer, Charles Frost. Frost reported the disappearance of the deceased and police inquiries were commenced. Of significance was the evidence of Margaret Blinman, who was a friend of the appellant. 8 In June 1995 the appellant told Miss Blinman that Mr Weaver was moving in on 4 July and that the deceased would have to go. On 2 July 1995 the appellant told Miss Blinman that she had driven the deceased to a medical centre and that he had then gone. The appellant gave a different version of the events to police. She told them that she had taken the deceased to Gosford railway station to enable him to go to a doctor in Sydney and that the deceased had telephoned her on 2 and 4 July 1995. Telephone records did not indicate that these calls had taken place and there is no evidence that medical assistance was sought. 9 On 24 July 1997 warrants were obtained pursuant to the relevant provisions of the Listening Devices Act 1984 for the use of listening devices in the appellant's residence. On the same day a warrant was obtained to search the premises. The search was carried out and revealed the decomposed body of the deceased beneath a concrete slab under the house. 10 Thereafter in conversations which were recorded pursuant to the listening device warrants, the appellant admitted that the body the police had found was that of the deceased and that she had used some twine to strangle him. The appellant declined to be interviewed but made a handwritten statement to the police. I have related the relevant details from that statement later in these reasons. 11 On 15 December 1997 in a telephone call the appellant told Mr Weaver that she had poisoned the deceased and strangled him at the kitchen table on a date that was identified by him as 18 July 1995. 12 Post mortem evidence from a forensic pathologist indicated that the circumstances of the death were consistent with strangulation by ligature. Because of the state of the deceased's body it was not possible to determine whether or not, as had been suggested, any poison or other substances had been ingested by him. 13 On 15 December 1999 the jury found the appellant guilty of murder. On 22 February 2000 his Honour sentenced the appellant to a term of imprisonment for seventeen years, comprising a minimum term of thirteen years commencing on 6 December 1999 and ending on 5 December 2012, and an additional term of four years, commencing on 6 December 2012 and ending on 5 December 2016. 14 As I have indicated, the appellant appeals against her conviction and seeks leave to appeal against her sentence. 15 The appellant has provided a detailed written submission. The matters which the appellant advances, as I understand them, are, firstly, the jury was not adequately instructed in relation to provocation; secondly, manslaughter was not left to the jury; thirdly, the trial judge did not adequately summarise the defence case; fourthly, the jury was not given the opportunity to determine whether the appellant was suffering from such an abnormality of mind that she was not responsible for her acts; fifthly, the jury was not properly informed of the deceased's criminal record; sixthly, the jury was not adequately informed of the position of the deceased's tongue and accordingly the evidence of the forensic pathologist as to the manner and cause of death should not be accepted; seventh, the appellant submits there is fresh evidence and, finally, the appellant catalogues thirty separate matters in which she complains of the findings of the jury, the conduct of her defence counsel and draws attention to the conduct of the deceased, including his sexual conduct and other matters. 16 In order to dispose of this appeal, it is necessary for me only to consider the first of the appellant's complaints. 17 Section 23 of the Crimes Act 1900 NSW deals with provocation. Section 23(1) is in the following terms: "23(1) Where, on the trial of a person for murder, it appears that the act or omission causing death was an act done or omitted under provocation and, but for this subsection and the provocation, the jury would have found the accused guilty of murder, the jury shall acquit the accused of murder and find the accused guilty of manslaughter. (2) For the purposes of subsection (1), an act or omission causing death is an act done or omitted under provocation where: (a) the act or omission is the result of a loss of self-control on the part of the accused that was induced by any conduct of the deceased (including grossly insulting words or gestures) towards or affecting the accused; and (b) that conduct of the deceased was such as could have induced an ordinary person in the position of the accused to have so far lost self-control as to have formed an intent to kill, or to inflict grievous bodily harm upon, the deceased; whether that conduct of the deceased occurred immediately before the act or omission causing death or at any previous time." 18 Section 23(4) makes plain that the onus is on the prosecution to prove that the relevant act was not done under provocation. The subsection provides as follows: "4. Where, on the trial of a person for murder, there is any evidence that the act causing death was an act done or omitted under provocation as provided by subsection (2), the onus is on the prosecution to prove beyond reasonable doubt that the act or omission causing death was not an act done or omitted under provocation." 19 The issue of provocation was properly left to the jury. The evidence which related to it comes from the statement the appellant made to the police and the account of the events which she gave to her mother and others which were recorded on the listening device. 20 The evidence in the statement was as follows: "I wish to make a statement regarding events on the Friday 11 July, I was making a sandwich and about to watch the midday show, when Bob Grosse walked in the TV room door. He had a few whiskies and extremely shabby, he said he'd been riding the train and meals you could pick up, somewhere near Oxford Street and Newcastle, he asked how the new boyfriend was. I said there was nothing great and it was going no where. He proceeded to undress and offered himself to me. I said you're dirty and unshaven and I don't know where you've been and I'm no longer your whore of the day. An argument started and I moved into the kitchen and proceeded to cut some yellow cord and knot it to tie up my peach tree. He was drinking from a small bottle from his pocket and proceeded to tell me I wasn't worth having a good fuck (his words) with because Ian (my first husband) had spoilt and over-protected me. He said I needed a few kinky ideas, as normal his ideas and mine didn't mix. He reminded me I had nothing any more and no fellow would want me with half a tit - This hurt and was hard enough to accept, I was just beginning to move about and feel a little normal again. I was tired of his choice of words to me when drinking, such as I'm only a fuckin bitch. No one had ever spoken like this ever to me and I loathed this frequent phrase - especially when he had a drink or two. He began to rubbish my son Brett. He was a 'little smartarse', because he built his own steel shed and home. He thinks he's got it all with his fat black widow, meaning his wife Sue. I wasn't at all impressed. Brett never did nothing to him nor Sue. Even on our last holiday with them, when an argument erupted Bob began throwing punches Brett said I won't hit an old man like you. Bob said are you gutless too - Brett said get out and off the property and ordered me to take him and don't come back. Perhaps the words were slightly different, but meant the same. We packed and moved. I had a great closeness with Brett, he was always there. Checked my car, the battery, tyres, the motor every time I visited. I didn't like abuse about him - Bob was still half dressed and offering himself among his foul outbursts and I couldn't cope with sarcasm of Ian - as he was remarried and even at family funerals, we have no communication to-gether and so slinging off about our marriage back in 50-70 was a cutting point, I have five children to this marriage and there were certain precious moments that didn't need destroying and I chose to keep these memories to myself. This was quite different to the filthy whore type sex he was talking about. He suggested I watch good videos and do things which I dislike and then said he should tie me up, fuck me up the arse and then P all over me. Because I screamed get out, he picked up the cord and was going to choke me, like he should of done to Margaret (his former wife). We struggled, when free I went outside, I was hurt, angry, fed up and sick of life, hated my breast operation and myself, I felt incomplete as a woman unloved and alone, none of my children were close to me and I couldn't unwind to Craig at the caravan park. About half an hour later I came inside, he was at the table, the bottle almost empty and he had a cup of tea. He sarcastically said Is the garden the same? My house and me were alike and he hoped I'd lose it and that's why he never intended helping to pay it off and finish it. I was again like my smartarse son Brett who knew it all. I walked to the table, picked up the cord, threaded the cord and put it over his head and said how do you like it? The bottle fell as he grabbed at me and I pulled the cord. We scuffled he fell and I ran outside. I was gone about 2 hrs I think. I didn't know what he was doing or what I should do perhaps he'd left or would be waiting. I went to the car and used my spare key and I drove to Fairhaven Shopping Centre. Perhaps he had left or would he be waiting. When I returned Bob was still on the floor. He had the knee tucked under his knee and his head was pulled back, the cord was twisted on his arm and around the shoulder. I rolled him on the floor and I knew he was dead." 21 In the conversations which were recorded on the listening device, the appellant gives an account of the events similar to that contained in her statement. 22 In one conversation she says: "He called me (inaudible) I was half a woman because I had one and a half tit off and I was his. But, beggar's had to be choosers and things like that, you know. And when he talked about the way I looked shit. He came around and had a go at me and I was getting on (inaudible) why I was (inaudible) mixing it up with the one you tie up the custard apple. … "(inaudible) and put it round the tree and pull it like I usually do and he come around (inaudible) there at me. And I just went off the deep end and (inaudible) called me a bitch (sounds like) strangled me (inaudible)." 23 The appellant later said: "You know. (inaudible) the way I talk to men, so I just sat there and the rope was still out the back on the (inaudible) chair and I was (inaudible) picked it up, wrapped it round his neck (inaudible). And I just said how do you like it? That's what you've done to me a few times. Didn't like it back. And of course (inaudible). He fell on the floor and I went and got (inaudible) and picked up out the front of (inaudible) underneath that hole, put him in there and (inaudible)." 24 There was another conversation which was recorded when the appellant's mother was present, as were a number of other persons. One person is recorded as asking the appellant: "Did you do it?" Another person says: "No, you're not". The first person says, "Why not? You shouldn't have told me. I never wanted to know." 25 The appellant says, "You have to know. Wayne knows." Another speaker: "You shouldn't have told me. You can't lie now." The appellant says: "I'm not going to lie, I'm admitting it." Another voice says: "Why didn't you tell me ages ago?" The appellant says, "How could I?" 26 The appellant then says, "I did it, mum." The mother asks whether there was a reason and says, "I know you probably had a reason for it." The appellant said, "I did have a reason: he was so abusive that day. I've written a thing out and Clerk told me last night." 27 Another speaker said, "Did you tell Clerk?" The appellant said: "Wouldn't let me home - no. I didn't want to talk to anyone till I told youse myself. He gave me till Monday and the weekend to work it out. I rang a priest last night: he was so fucking rude. He says, 'What are you doing ringing me at this hour?' and this morning I told him he was rude and I asked him who he was and he said, 'You're so evasive I don't know.'" 28 There was then a discussion about the circumstances followed by this statement by the appellant: "He come in here and he threatened me. And he was going to strangle me and do things. He was forever telling me about Ian, how Ian protected my sex life, he didn't have kinky ideas and things; he rubbished Brett and he went on and on. He picked up a piece of cord that I was going to tie a peach tree up with; he was going to strangle me. I got away from him and went outside, and when I came back he was drinking at the table and the cord was there and I went over and I thought, 'I'm sick of this, I'm sick of everything.' I put the cord, looped the cord and I shoved it round his neck and I said, 'How do you like this?' and he was drinking and in between drinking and everything - and I pulled it hard, and he fell on the floor, and I ran out the door and went to Lakehaven. When I came back he was on the floor." 29 In his directions to the jury the trial judge utilised the familiar technique of providing the jury with written directions. He correctly identified the need for the Crown to establish the elements of the crime, including that the appellant did not act under provocation. His directions included the following: "Provocation. The fourth issue upon which the Crown must satisfy you beyond reasonable doubt is that the accused did not act under provocation. The reasonable possibility that the accused acted under provocation is sufficient to reduce her crime from murder to manslaughter. Provocation consists of conduct on the part of the deceased towards the accused which induces (or causes) a loss of self-control on the part of the accused. If: (a) the act of the accused in strangling the deceased with the intention of killing him, or of inflicting grievous bodily injury (meaning really serious bodily harm) upon him, resulted from a loss of self-control on her part caused by such conduct of the deceased, and (b) that conduct of the deceased was such that it could have induced (or caused) an ordinary person in the position of the accused to have so far lost that person's self-control as to have formed an intention to kill or inflict grievous bodily harm upon the deceased, then the accused has acted under provocation. The Crown must eliminate any reasonable possibility that the accused did act under provocation. It may do so by establishing beyond reasonable doubt either: (i) that the act of the accused which caused the death of the deceased (including the intention to kill or to inflict grievous bodily harm) did not result from a loss of self-control on the part of the accused; or (ii) that any such loss of self-control on the part of the accused had not been induced (or caused) by conduct on the part of the deceased towards the accused; or (iii) that the conduct of the deceased was not such as could have induced (or caused) an ordinary person in the position of the accused to have so far lost self-control as to have formed an intention to kill or to inflict grievous bodily harm upon the deceased. The Crown need establish only one of these three. It does not have to establish all of them." 30 His Honour proceeded to explain the expressions "loss of self-control", "conduct on the part of the deceased" and "the ordinary person". There is no problem with these directions. 31 However, the jury, after retiring, sought clarification of certain matters. They asked the following question: "Can you give us clear meaning and examples of provocation and revenge?" 32 In response to this question his Honour said: "As to your question 1, 'Can you give us clear meaning and examples of provocation and revenge?' the answer is, the meaning of provocation is as I have set out for you in your written directions. It may be defined in this way, that provocation is some act or series of acts done by the dead man to the accused which would cause, in any reasonable person, and actually did cause in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make her, for the moment, not master of her mind." 33 There are, in my opinion, two significant problems with this direction. Firstly, s 23(2)(b) provides that provocation may be present where the conduct was such as could have relevantly induced an ordinary person to act in the relevant manner. His Honour, by introducing the word "would" has imposed a far more stringent test by which the jury was to assess the conduct of the deceased. 34 Although this would be sufficient to found error, the problems with the direction are emphasised by the words which immediately follow. By introducing to the jury a question of whether the relevant conduct "actually did cause in the accused" the relevant loss of control, his Honour has inadvertently suggested to the jury that the appellant was required to prove that she was actually provoked. 35 The problems are both confined and exaggerated by the further directions of his Honour. His Honour said: "It is important that you consider the question of provocation in the light of the evidence in this case when deciding if the Crown has negatived provocation. I do not think it would be helpful for me to give examples, say, from other cases where provocation has been found to be negatived or where provocation has been found." 36 These remarks of his Honour place the concept of provocation into its proper context and emphasise the obligation which the Crown bears. However, his Honour goes on to say: "It is a jury question for you to determine on the evidence in this case; in particular, whether there is evidence in this case which you accept that the accused lost her self control." 37 From these remarks the jury would be likely to understand that before provocation was available to the appellant the jury must be satisfied that she had in fact lost her self-control. 38 This is further emphasised in the immediately following remarks, where his Honour says: "Your question 2, 'Can provocation be considered over a length of time or only at the time of the event?' The answer is, provocation can be considered in the light of events occurring over a lengthy period of time but the loss of self-control must be present at the time of the killing. There is no need for a triggering incident. However, the conduct of the deceased must be such as would cause an ordinary person to lose self-control. Conduct giving rise to a sense of grievance or revenge such that, when the opportunity arises that opportunity is taken, will not be sufficient to amount to provocation." 39 This paragraph suffers from the same two difficulties as his Honour's original remarks. Firstly, he introduces the word "would" when the statute provides "could". Secondly, he instructs the jury that the loss of self-control "must be present at the time of the killing". 40 In a passage which shortly follows in his Honour's directions, he returns to a correct statement of the law. He says this: "Your question 3, 'Can provocation become revenge if there is a time period between the threat and the event - how long or short can this time period be?' The answer is, provocation has a special meaning in law. It has the meaning set out in your written directions and in the definition that I have just given you in answer to your question 1." 41 Although these remarks, which reminded the jury of the written directions, gave a correct guidance as to the law, his Honour's remarks, when dealing with question 1, departed from the terms of the statute. The impact of the written directions would have been diminished. 42 The problems with the direction are reinforced in two further passages. His Honour says, firstly: "Whether the accused suffered loss of self-control in the present case has to be considered by you in the light of the facts which you find and whether, on those facts, the loss of self-control, if you find it to have occurred, was the response of an ordinary person in the position of the accused. I refer you to paragraph 9 of your written directions." 43 Notwithstanding the reference to the written directions this passage, in my opinion, would have been understood by the jury to have imposed an obligation on them to determine whether in fact the appellant lost her self-control. Rather than framing the relevant question as being whether or not the Crown has discharged its onus of proving that the appellant had not lost her self-control, the jury would have understood the direction to have imposed a burden of proof upon the appellant. 44 Later in the further directions, his Honour returned to the relevant test and again used the word "would". He said: "As I have said, the loss of self-control must be present at the time of the killing, and the conduct of the deceased must be such as would cause an ordinary person in the position of the accused to have lost self-control." 45 Having regard to these passages in his Honour's directions, I am satisfied that the jury was not properly instructed as to the approach it should take to the issue of provocation. I appreciate the difficulties which were raised once the jury had asked questions seeking clarification of the law in relation to the issue. I have no doubt his Honour was attempting to express the law in language which the jury could adequately understand. However, in his attempt his Honour has failed, in my opinion, to adequately instruct the jury that unless the jury is satisfied that the Crown has proved that the elements of provocation were not present, the appellant was entitled to be acquitted of murder. 46 As this inadequacy goes to one of the fundamental elements of the charge of murder, in my opinion there is no alternative but to allow the appeal. 47 In coming to this conclusion I appreciate that no objection was taken to his Honour's directions by the appellant's counsel at the trial. It would appear that the appellant's counsel accepted his Honour's formulation of the law. Notwithstanding that fact, in my opinion the misdirection is such that the conviction cannot stand. 48 I am also mindful of the submissions of the Crown that it presented a strong case that the killing occurred on 1 July when no suggestion of provocation would arise. However, the issue of provocation was left to the jury and it is plain from their questions that in the course of their deliberations they were concerned to be properly informed in relation to that issue. Accordingly, it is not possible to conclude that the jury reasoned that the events occurred in the manner primarily contended for by the Crown. 49 I should also indicate that I have reviewed all of the evidence in this matter and I am satisfied that there is evidence which could have sustained a conviction on the charge of murder. For those reasons, I am of the opinion that the orders of the Court should be: