R v Wills [2008] NSWSC 932

New South Wales Supreme Court

CITATION : R v Wills [2008] NSWSC 932

HEARING DATE(S) : 25/08/08; 26/08/08; 27/08/08; 28/08/08; 01/09/08; 02/09/08;

JUDGMENT DATE : 9 September 2008

JURISDICTION : Common Law Division

JUDGMENT OF : Hidden J at 1

DECISION : Verdict: not guilty

CATCHWORDS : CRIMINAL LAW: - trial by judge alone - murder - circumstantial case

CATEGORY : Principal judgment

PARTIES : Regina (Crown) Russell Clement Wills (accused)

FILE NUMBER(S) : SC 2003/6192

COUNSEL : L L Lungo (Crown) P M Paish (accused)

SOLICITORS : Solicitor for Public Prosecutions R F Bergagnin & Co (accused)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL JURISDICTION

HIDDEN J

Tuesday 9 September 2008

2003/6192 R v Russell Clement Wills

REASONS FOR VERDICT 1 HIS HONOUR: The accused, Russell Clement Wills, has been tried by me, sitting without a jury, for the murder of Hans Hoch at Surry Hills on or about 16 July 2002. The matter has had a somewhat complicated history, which it is not necessary to recite. It is sufficient to say that he was tried upon the same indictment before Studdert J and a jury in October 2004, was found guilty and was sentenced. However, for reasons which are of no present relevance, that conviction was set aside and a new trial was ordered: Wills v R [2007] NSWCCA 160. A retrial commenced before Barr J and a jury in April of this year, but the jury had to be discharged before the evidence was completed. 2 So it is that the matter is now before me, the accused having elected for trial without a jury and the Crown prosecutor having consented to that course. The accused has been represented by Mr Paish of counsel. By agreement, I have received the transcript of the evidence of all the Crown witnesses, given in one or other of the two previous trials. I have also heard brief additional oral evidence from a forensic biologist, Ms Sharon Neville, and extensive further oral evidence from a Crown witness, Mark Anthony Skerry. The accused also gave evidence before me, and called a witness in his case. 3 I was a member of the Court of Criminal Appeal which set aside the conviction after the first trial. We rejected a ground of appeal that the verdict was unreasonable, and the fact that I joined in that decision was drawn to the attention of the parties before the present trial. However, neither party asked me to disqualify myself from hearing the matter, and I saw no reason why I should do so. The Court's rejection of the ground of appeal meant no more than it could not be said that the verdict was not open to the jury on the evidence in the first trial. As I assured the parties at the outset of the present trial, I have put that decision to one side and have set about considering the matter afresh in the light of the evidence before me and the arguments of counsel. 4 Mr Hoch, the deceased, was an elderly and frail man, who lived alone in a Housing Commission flat in Belvoir St, Surry Hills. The accused was sharing a room with another man in a boarding house in Cleveland St, Surry Hills. At the relevant time the accused and the deceased had known each other for about a year. It appears that they had generally been on good terms, and not long before the death of the deceased the accused had stayed overnight at his flat for several days. 5 In the early afternoon of Wednesday, 17 July 2002, the deceased was found dead in his flat. He had been brutally assaulted and died of multiple injuries. A post-mortem examination conducted by Dr Alan Cala found a number of bruises and lacerations to his head and face. His larynx had been fractured. There was extensive bruising, together with abrasions, to his trunk and limbs, and there were a number of rib fractures. Dr Cala concluded that these injuries were the result of blunt force trauma, such as kicking. The deceased was found on the floor of his bedroom, and when police attended the flat later in the afternoon of 17 July they found two saucepans and a frypan in that area. They were bloodstained and it is obvious that they had been used as weapons. Dr Cala saw some of the injuries as consistent with having been caused by them. 6 There is no dispute that whoever inflicted these injuries is guilty of murder or, at least, manslaughter. The inference that the perpetrator intended to kill the deceased or to inflict grievous bodily harm upon him is readily available. Alternatively, the inference that the killing was the result of an unlawful and dangerous act is irresistible. There is nothing in the evidence to suggest any form of justification for such an attack. The central issue in the case is whether the accused was the perpetrator. The Crown case against him is circumstantial. There is a considerable body of evidence. However, as I have reached the conclusion that the case against the accused has not been made out, it is appropriate that I deal with it succinctly. 7 Dr Cala examined the body of the deceased at the flat at about 8pm on 17 July. From the temperature of the body and the state of rigor mortis which had developed, he concluded that death had occurred somewhere between twelve and thirty hours earlier. He acknowledged the imprecision inherent in such an estimate. He thought it unlikely that the deceased had been dead for less than twelve hours, saying that he thought it had been "substantially more than that". At the other extreme, he could not exclude a period up to thirty-six hours but described around thirty hours "as a ball park figure". 8 If one were to accept thirty-six hours as the outer limit, then death could have occurred as early as about 8am the previous day, Tuesday, 16 July. However, in cross-examination, Dr Cala made it clear that twelve to thirty hours was the "most probable" range for the time of death and that, while "theoretically" it may have been longer than thirty hours, that was "really in the realms of possibility". If thirty hours is the outer limit, death could not have occurred before about 2pm on 16 July. Equally, if death could not have occurred less than twelve hours before Dr Cala's examination, it could not have been later than about 8am on 17 July. However, as I have said, the doctor was of the view that it would have been "substantially" earlier than that. 9 As will be seen, the range of time of death is important because of evidence about the accused's movements, particularly on 16 July. It is not suggested that there was any significant lapse of time between the attack and the death. 10 The accused had been staying overnight at the deceased's flat for several days up to and including Monday, 15 July. He slept on a mattress on the lounge room floor. In the early evening of that Monday, the deceased called police to have him removed. Two police officers arrived at the flat in answer to the call. They observed that the accused appeared not to know why the deceased wanted him to leave. Nor would the deceased say why, even when one of the officers took him to another room where they could speak privately. 11 One of the officers gave evidence that the deceased seemed "a bit agitated", while the accused was "actually quite nice, helpful". Nevertheless, having ascertained that the accused was not a party to the lease of the flat and had no right to remain there, the police directed him to leave. Before doing so, he returned a key of the flat to the deceased. He packed some clothes into a black bag, and police escorted him from the flat and out of the building. 12 While the Crown prosecutor could not identify a motive for the accused to attack the deceased, he relied upon this evidence as demonstrating ill feeling between them at the relevant time. In the early afternoon of 16 July, the accused told his roommate at the Cleveland St boarding house, Tapiwa Shumba, that he had had an argument with the deceased and had been thrown out. He did not say what the argument was about. It is the Crown case that some time between the morning of the Tuesday and the morning of the Wednesday the accused returned to the flat, that whatever had been the contention between the two men on the Monday flared up again, and that this led the accused to attack the deceased. 13 Police who attended the flat on the afternoon of 17 July found no sign of forced entry. The door to the flat could be opened from the outside only with a key. Accordingly, the assailant either had a key or, perhaps more likely, was admitted to the flat by the deceased. Although the accused had returned his key, and there had been ill feeling between him and the deceased, he was obviously a person who might have been allowed in. 14 The witness, Mark Skerry, who lived in the same block of units, knew both the deceased and the accused. He gave evidence that he saw the two men at the accused's flat between about 12.30 and 1pm on Tuesday, 16 July. He said that he spent a short time in the flat with them, before leaving them to return to his own flat. If this is accepted, it is the last occasion on the evidence on which the deceased was seen alive. Moreover, it is proximate in time to the beginning of the period which Dr Cala saw as the most probable range of the time of death. 15 In the flat the police also found the accused's black bag in which he had packed his clothes on the Monday night. The mattress on which he had been sleeping was still on the lounge room floor. Under the cushion of a lounge in that room the police found a wallet containing cards identifying it as the accused's. The Crown case is that the accused returned to the flat with his belongings, perhaps expecting that he would be allowed to stay there again. However, in his haste to get away from the flat after attacking the deceased, he forgot to take his bag and wallet with him. 16 The accused's roommate at the boarding house, Mr Shumba, worked at nights. He gave evidence that between about midday and 1pm on 16 July he was awoken when the accused came into the room. He noticed that the accused seemed to have some difficulty with his left leg and was limping. When he asked him about it, the accused said that he had been hit by a car on the way home. Two other residents of the boarding house gave evidence of seeing the accused limping, although they could not pinpoint the date on which they did. To one of them, Peter Brooks, he gave an explanation for his condition. Mr Brooks' recollection in evidence of what he said was very unclear, but it was to the effect that he had been pushed against a car while trying to protect a girl. The other resident, Leslie McKenzie asked the accused what had happened to his leg and received the response, "Don't ask." 17 The accused was arrested in his room at the boarding house on Thursday, 18 July. The police noticed that his leg was apparently injured. Later that day he was escorted to Sydney Hospital because he was unwell. He was examined by Dr Christopher Gregory, who saw bruising to his left thigh. According to Dr Gregory's notes, he complained of having felt pain in that thigh "for some days". However, the notes also recorded that he was "reluctant" to say how the injury had occurred. 18 It is the Crown case that the accused injured his leg in some way during his attack upon the deceased or in the course of fleeing from the scene. This, said the Crown prosecutor, explains his reluctance to tell Mr McKenzie and Dr Gregory about the source of the injury, and such explanation as he did provide to Mr Shumba and Mr Brooks should be rejected. 19 Police took possession of the clothes the accused was wearing at the time of his arrest, which he had not changed for several days. Examination of his track suit pants revealed an area of blood staining on the top left leg near the crotch. On his polo shirt two blood stains were detected on the left sleeve and another at the opening of the collar. Testing of these stains revealed DNA consistent with that of the deceased. There was no challenge to the accuracy of these results, and it is not in dispute that there was blood of the deceased on those parts of the accused's clothing. 20 Thus, the circumstances upon which the Crown relies to establish its case against the accused are these: 1) The accused's removal from the deceased's flat on Monday, 15 July (taking with him his bag); 2) The sighting of the accused by Mark Skerry in the deceased's flat in the early afternoon of Tuesday, 16 July; 3) The absence of any sign of forced entry into the flat; 4) The injury to the accused's leg observed on 16 July; 5) The accused's reluctance to tell Mr McKenzie and Dr Gregory how he injured his leg; 6) The location of the accused's bag and wallet in the flat by investigating police; 7) The blood of the deceased on the accused's track pants and shirt. 21 The Crown relies upon the combination of these circumstances to found the inference of the accused's guilt. However, the Crown prosecutor fairly acknowledged that that inference could not be drawn unless I was satisfied beyond reasonable doubt that the blood on the accused's clothing was the result of his attack upon the deceased. Of course, that is a matter to be decided in the light of the other circumstances relied upon, and the whole of the evidence. 22 Let me turn, then, to the accused's evidence. It is sufficient to summarise briefly the effect of that evidence as it touches upon each of the seven circumstances relied on by the Crown. 23 It is necessary to sketch a little background to the events of the evening of Monday, 15 July. The evidence establishes that the deceased held himself out to be a doctor, although it appears that he had no such qualification. Mark Skerry said that he believed that he was so qualified and that, generally, he was a man of some importance and influence. Mr Skerry's affairs at the time were under the control of the Protective Commission, and he wanted to regain the ability to handle his money himself. He asked the deceased to write a letter to the Commission making representations on his behalf. On a number of occasions he pursued the deceased about this matter, to the extent that the deceased became annoyed with him and did not want him in his flat. 24 According to the accused, Mr Skerry had been banging on the door of the deceased's flat in the early evening of 15 July, seeking access to speak to the deceased, as he had been over the previous few days. The accused was insistent on answering the door and remonstrating with Mr Skerry, but the deceased did not want him to do so and demanded that he not interfere in the matter. It was this, he said, which led the deceased to order him, the accused, to leave. According to the accused, the deceased was determined not to involve anyone else in his problem with Mr Skerry. This might be seen as consistent with the deceased's refusal to tell police why he wanted the accused to leave. Equally, it would be consistent with the demeanour of the accused which the police observed, suggesting that he could see no rational reason why the deceased would want him out of the flat. 25 The accused said that, having been required by the police to leave, he felt under pressure do so promptly. He packed his belongings into his bag, but forgot his wallet. This did not pose an immediate problem for him, because he had some cash in his pocket. It was for this reason, on the defence case, that investigating police found the wallet on the Wednesday afternoon. In final address, Mr Paish noted that it was found in a concealed position under the cushion of a lounge, where it might easily have been overlooked by the accused as he left on the Monday night. 26 The accused went on to say that he repaired on foot to his room at the boarding house, where he deposited his bag. He then walked to the Evening Star Hotel in Elizabeth St, Surry Hills, which he frequented regularly. He acknowledged that he was an alcoholic, and that he drank to excess daily. On the way, manoeuvring around a pothole in Cleveland St, he fell over and injured his left hip. It was this fall, he said, which led to his limping in the manner observed by the witnesses to whom I have referred. Put shortly, he said that his reluctance to explain the injury, and the account he gave to Mr Brooks and Mr Shumba, were the result either of his feeling too ill to discuss the matter or his embarrassment at admitting that the fall was, no doubt, the result of his habitual and excessive drinking. 27 He said that the following morning, 16 July, he went back to the deceased's flat "to see how he was and how things were". He took his bag with him. He arrived at about 11am, to find that the deceased had a bleeding nose. The deceased would not say how this had happened, but he asked the accused to help him by getting some toilet paper to wipe the blood from his nose. The accused did so, making several trips to the bathroom to obtain the toilet paper. The effect of his evidence was that the deceased kept blowing his nose and that a significant amount of blood came from it. Although the accused did not say as much in evidence, it was this process which Mr Paish relied upon to explain the deceased's blood on his clothing. 28 The accused said that he was concerned for the deceased and became upset when he refused to explain how his nose came to be bleeding. The implication of his evidence was that he suspected that Mr Skerry had some involvement in the matter. Again, the deceased said that he did not want him interfering in what was happening and asked him to leave. The accused did so but, in his distress, left his bag behind. 29 He walked back to the boarding house, and it was upon his arrival there that Mr Shumba saw him and observed him to be limping. At this point I shall summarise Mr Shumba's account of what happened. He noted that the accused normally took his bag containing his personal effects with him when he left the room. On this occasion, the accused did not have the bag and he asked Mr Shumba to help him locate it. He seemed uncertain whether he had left it at the Evening Star Hotel, at a park, or at the deceased's flat. It was in this context that he told Mr Shumba that he had had an argument with the deceased. 30 The two of them set off on foot to the deceased's block of units, arriving there about half an hour later. There were some police vehicles parked outside the units. The accused said, "Shit, the cops …Hans has called the cops on me." They went into the block of the units from an entrance on the other side of the building, and the accused spoke to one of the residents whom he knew for a few minutes. They then left and repaired to the boarding house. In the early evening they went together to the Evening Star Hotel, where they remained until about 10.30pm. The accused then walked back towards the boarding house, and Mr Shumba walked to his night time employment at Darlinghurst. 31 The accused gave evidence that, when he saw police in the vicinity of the deceased's unit block that afternoon, he feared that the deceased had called police to keep him away. He denied that it was because he had done anything wrong. He said that after he and Mr Shumba left the hotel that night, he went back to the boarding house and slept until Mr Shumba arrived home from work at about 8 o'clock the following morning, the Wednesday. 32 It will be seen, then, that the accused has proffered an explanation for most of the circumstances relied upon by the Crown: his being ordered from the deceased's flat on the Monday, his being seen to be limping on the Tuesday and what he said about it, the finding of his bag and wallet at the deceased's flat on the Wednesday afternoon, and the presence of the deceased's blood on his clothing. That there was no sign of forced entry into the flat is, of itself, of little significance. There is no reason to believe that the accused is the only man whom the deceased would have admitted to the flat. Indeed, there was evidence from another resident of the block of units, Fikret Salih, that the deceased had a lot of visitors at his unit during the day and at night time. This may have had something to do with his pretence of being a doctor. 33 The only evidence that the accused was with the deceased in his flat in the early afternoon of 16 July is that of Mark Skerry. Mr Skerry was cross-examined at length, and effectively, in the course of the first trial and again in the trial before me. I need say no more than that I found him a most unreliable witness. I do not say that as a criticism of him personally. He presented as a rather sad figure, with a history of alcohol abuse and mental illness. It is perhaps not surprising that significant inconsistencies were exposed between his evidence in the two trials and his statement to the investigating police. 34 Mr Paish cross-examined Mr Skerry closely about his own movements at relevant times, suggesting that it was he who had perpetrated this attack upon the deceased. It was on that issue that a witness was called in the accused's case to give evidence about an earlier and unrelated incident of violence inflicted by Mr Skerry upon another man, against a background said to be somewhat similar to his relationship with the deceased. It was entirely legitimate for Mr Paish to explore the possibility that Mr Skerry had assaulted the deceased, so as to raise an hypothesis consistent with the innocence of the accused. However, it is not necessary to determine this matter to resolve the present case and, certainly, I would make no finding adverse to Mr Skerry about it. 35 It is sufficient to say that I would not act upon Mr Skerry's evidence that he saw the accused in the company of the deceased in the afternoon of 16 July. Quite apart from the inherent unreliability of Mr Skerry's evidence, it cannot stand with the evidence of Mr Shumba that the accused was in his company at the boarding house at that same time and the two of them were together for many hours thereafter. 36 As one would expect, the Crown prosecutor mounted a spirited attack upon the accused's credibility. Without going to the detail of it, he argued that the accused's account had all the hallmarks of being tailored to accommodate and explain the Crown case. Of course, it is trite law that the accused bears no burden of proving his innocence and that, even if I rejected his evidence in its entirety, the Crown would still bear the burden of establishing his guilt beyond reasonable doubt. That said, I can see the force of the Crown prosecutor's submission and, I must say, I approach the accused's evidence with considerable reservation. 37 Nevertheless, in one respect his account receives significant support in the Crown case. As I have said, his explanation for the injury to his left leg was a fall on the way to the Evening Star Hotel on the night of 15 July. If that explanation is accepted, the injury could not be attributable in any way to the attack on the deceased. On the most expansive view of the range of time of death expounded by Dr Cala, the attack could not have taken place before about 8 o'clock the following morning. Equally, the accused's reluctance to explain how the injury came about, whatever the reason for it might have been, could have no significance in the case. Yet, an employee of the hotel, John Egan, observed him to be "limping slightly on his left leg" while he was there. Whether this was during the night of 15 July or the small hours of the following morning is not clear, but it matters not. Mr Egan's shift ended at 3am on the Tuesday, which was still well before the deceased could have been attacked. 38 The most compelling aspect of the Crown case, undoubtedly, is the finding of the deceased's blood on the accused's clothes. If he were the attacker, it is perhaps surprising that more blood was not detected. Cross-examination of Dr Cala explored the question whether kicking the deceased would be likely to have deposited blood on the lower part of the assailant's trousers, it being noted that no blood was found in that area of the accused's track suit pants. Read as a whole, I find the doctor's evidence inconclusive on this point and, broadly speaking, it does not appear that the modest amount of blood found on the accused's clothing is inconsistent with his having been the attacker. 39 Nevertheless, I have noted the standard of proof which the Crown prosecutor acknowledged he bears on this aspect of the case. As I have said, it is a matter to be assessed in the light of the whole of the evidence. That includes the evidence of Mr Shumba, which has the accused in his company for a very significant part of the period during which, in my view, it is most likely that the deceased was attacked. I am not prepared to reject the accused's explanation of the blood on his clothes as a reasonable possibility. 40 I am indebted to counsel on both sides for their careful analysis of the evidence in final submissions, to much of which I have not referred. However, it is sufficient to say that, however much suspicion the evidence might engender against the accused, it falls short of proof to the requisite degree. I am not satisfied beyond reasonable doubt that it was he who perpetrated this attack upon the unfortunate deceased. Accordingly, I find the accused not guilty. **********