Beck v The Queen

[1989] HCATrans 296

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B36 of 1989

B e t w e e n -

VALMAE FAY BECK

Applicant

and

THE QUEEN

Respondent

Application for special

leave to appeal

MASON CJ
BRENNAN J
DAWSON J

Beck

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 5 DECEMBER 1989, AT 2.18 PM

Copyright in the High Court of Australia

C2T 42/1/DR 1 5/12/89

MR K. COPLEY, QC:  May it please the Court, I appear for the

applicant with my learned friend, MR W. McMILLAN.

(instructed by the Public Defender)

MR D.G. STURGESS, QC: If the Court pleases, I appear with

my learned friend, MR T.A. FULLER, for the

respondent. (instructed by the Director of

Prosecutions (Qld))

MASON CJ:	Mr Copley.
MR COPLEY:	I hand up an outline of the applicant's submissions.

MASON CJ: Thank you. Yes.

MR COPLEY:  If the Court pleases, the application is out of

time by a little over two weeks and we ask for an

extension of time within which to bring this

application. We understand that the Crown does not

oppose the application because of its being out of time. It was not because of the applicant's personal fault; the circumstances have been referred

to in the affidavit of Mr Harland; and practically

no additional costs have been incurred by any

party and we would point out, particularly, that the
period is rather short. It is a matter where the

Court does have power and we would ask the Court's indulgence in the circumstances.

MASON CJ: Well, you can proceed to the grounds for special

leave, Mr Copley.

MR COPLEY:  If the Court pleases, the applicant and her

husband - not a de facto husband as appears in the

affidavit - abducted one Sian Kingi from Noosa on

27 November 1987 at about 4.00 pm.

MASON CJ: You can take it we are familiar with the facts.

We have read the judgments of the Court of Criminal

Appeal.

MR COPLEY:

The particular background to the circumstances

of the connnission of the offences to which the
applicant has pleaded guil-ty to ·that of abduction or

deprivation of liberty and rape are contained in

the record of interview which was taken by the

police - it commences at page 291 of the record -

and I take the Court to page 293 and the passages

connnencing from question 26 through to 39 or 40.

(Continued on page 3)

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MR COPLEY (continuing): It might be more convenient at the

moment if I referred the Court to those passages and

invited the Court to read those rather than - - -

MASON CJ:	Yes, I agree.
BRENNAN J:	Which page is it, Mr Copley?
MR COPLEY:	Pages 293 and 294, Your Honour.
MASON CJ:	Beginning with question 26?
MR COPLEY:	Yes, Your Honour.
MASON CJ:	Yes.

MR COPLEY: Further, Your Honour, at page 307 in question 205

and the answer, in question 206 and the answer, and

question 213 and the answer are particularly relevant

for the purposes of this application.

MASON CJ:	Yes.
MR COPLEY:	Just finally, in addition to the record of

interview there were two hand-written statements made

by the applicant and one of those hand-written statements

contains relevant material at page 4 and we refer to

page 289 of the record at about line 18 and point out

that this passage encapsulates, in a sense, what appears
in the questioning at page 26 onwards already

referred to.

(Continued on page 4)

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MASON CJ:	Yes.
MR COPLEY:	At question 163, in the narrative in the record of interview,the applicant referred to her
refusal to assist, or to further assist, at
the stage that the proceedings, or Watts's
activities had reached at that time. We
refer to the answer 163.  T'hen at answer 175,
after his purpose had been achieved, appears
what occurred with the victim, with the
victim herself re-dress:ing and then:

He tied her ankles back up with the

same bit of rope.

At the bottom of page 304, answer 175. Then

we refer to the top of page 305 when, she

says:

he gagged her with the tape, taped her

mouth up really really tight ..... He said

its all finished now its all over. I

said to him can't we just leave her and

go -

and then he made the particular answer there

recorded. Up till that time, from that narrative

that has been given, that is the first indication

that he has taken it into his mind that he is

going to actually kill this girl. It was, in our submission, obvious to her

at that point because if the girl were to be
released in accordance with what appears at the

question and answer 213, to be left-in the bush,

what would be the point of her being retied,

regagged and very tightly?

(Continued on page 5)

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MR COPLEY (continuing):

I can't trust her not to give me up.

And then she says she:

didn't say anything -

and he did certain actions, and she said to him:

Barrie please don't do this and he said

shutup and go round the other side of the

car. Thenshe started to struggle which

caused the dog to get excited. I took

the dog to the other side of the car, so me

and the dog couldn't see what was happening.

Barrie called out to me to come and help him

I turned around -

she describes what she saw -

I turned away -

and there is one further passage that we need to

refer to. Answer 180:

Could you have stopped him?

I don't think so no. I wouldn't have been

strong enough to stop him anyway.

MASON CJ: But, come back to the answer at the top of the

page:

He said its all finished now its all over.

MR COPLEY:  Yes.

MASON CJ: Well, if you take that answer as it stands,

that suggests that no further action is going to

be taken at all and yet the applicant then says:

I said to him can't we just leave her and

go -

MR COPLEY:  It is not explained to whom he was speaking at

the time, whether it was to her or to the victim

and the exact context, of course, is a narrative

that she is giving a couple of weeks after the

event.

McHUGH J:	But the whole hypothesis of this argument is that you can accept this as evidence. The jury did not
have to accept all these self-exculpatory
statements of hers.  I must say it amazes me that
the case ever went to the jury the way it did.

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I mean, she took part in the kidnapping of this

girl and she is there when she is killed. Why

was that not enough for the jury to act on? They

do not have to accept all these answers of hers.

MR COPLEY:  No. If there were something in the evidence to

indicate that what she says, that has been described

by Your Honour as self-serving statements,

that they were merely self-serving and had no other
support the position, in our submission, might be

different. But, there was a tape-recording conducted

by the police of conversation between the applicant

and Watts in the cells at the Noosa Police Station

after this record of interview had been taken and

that tape-recording went on for quite some substantial

period of time and it does appear that the record of

•	interview, or at least certain parts of it, were read by or read over to Watts by the police and he
was returned to the cells at which time he upbraided

the applicant for having made confession and it

would appear that the relevant parts were read or,

at least, seen by him and as to what had in fact
occurred at the time of the killing, that she had

told the truth to the police is to be seen from

page 364, about line 44, where he says:

Everything is there, in black and white, everything that was done.

McHUGH J: Well, everything was not there that was done or

was said because, if you look at page 425, line 29,

he says:

The only thing that I didn't put in the statement was what happened to make her

romantic.

arid then,

Will you forgive me for that.

He said:	I'm glad you didn't.
Because they asked me if I was sexually turned on by it -

et cetera, et cetera. Now, what they are talking

about is difficult to know but there is obviously

something that is kept out.

MR COPLEY:  But not about the murder.

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McHUGH J: Maybe not, but the fact is that she was prepared

to conceal it from the police and I mean, take

her statement, she kept changing the hand-written

statements and so on.

MR COPLEY:	Yes.
McHUGH J:	I ~ean the jury did not have to accept

every part of her record of interview. They could

have taken part of it and that leaves a case that

she is there as a party to this thing and does

nothing in it. She kidnapped the girl. Why could

not the jury take the view that she was actively

in charge here?

MR COPLEY:  Not in light of what she has said even though

it is self-serving, where there is no other evidence

to contradict or to negate what she has in fact said

at that part.

BRENNAN J: What about page 367 where apart from the assertion

by him at about line 48 that both were as guilty

as each other, . she then offers to tailor

her statement in a particular way.

~IR. COPLEY: Yes. It is an offer to him. This woman has

committed these particular offences out of. what

of it. It is an offer that she makes to him. That she is prepared to make this statement to him to

is said by her ~o be love for him and that permeates

the whole of that transcript of the tape-recording,

further help this man and there is a further passage

in that transcript of her offering to try to construct

some case that he is insane. Again another example

of this woman's love for him.

BRENNAN J: Well, is that something which need necessarily

inspire the jury with confidence?

MR COPLEY:  When it comes to these particular parts and this

record of interview that had continued from about

10 o'clock in the evening to half-past seven the

next morning where it went for about 30 pages, one

would expect, apart from the matter that Your Honour

Justice McHugh has referred to, which did not involve

murder, hut these other parts, particularly in light

of his confirmat.ory statement ,_ that everything was
there in black and white in relation to what had

been read by or over to him., that ·what· she did i-;1 relation

to murder, she had told the truth. But there is

a further point that, when one reads this transcript

of the tape-recording and gets the sense of what Watts

says by way of comment , .if she had minimized her

role, if she had not told the truth as to what she

had done or more correctly did not do, one would expect

C2T46/l/CM	7	5/12/89
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that he would have, at that stage, very much

pointed out to her, "But what about your doing x or y

or z." Or "You did not tell them the truth about

what you did" and there is no such suggestion or

statement coming from him.

BRENNAN J: Nor was there any suggestion that she, having

alleged that murder was committed by him without her prior knowledge, ever reproached her husband in the whole of these conversations ·for having

involved her in a murder without any prior warning

to her that that was what he intended to do and indeed
there is one passage at page 398 which is

capable of being read in a fashion which indicates

that she had some prior knowledge. Page 398, line 53.

MR COPLEY:	Because you told me that it wouldn't bother ya
but I thought it would.
BRENNAN J: Yes.
MR COPLEY:	Yes. Your Honour, that particular passage, in

our submission, is quite clearly open to the

interpretation of being referable to what has

occurred after the event.

you told me that it wouldn't bother ya but

I thought it would.

She has elsewhere referred to how it has upset her

since the killing took place.

(Continued on page 9)

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MR COPLEY (continuing):  The picture, in our submission, that

the evidence presented at the end of the day was that

although for reasons of stated love by her for him

she went along with and actively assisted him in

the abduction and the offence of raue, that that

assistance stopped before the killing took place

and that from the time when he manifested his

intention to kill she no longer rendered assistance

to him in that part of his purpose and the actions
that she thereafter did, namely the burying of pants

with her foot, and that appears at answer 283 to

answer 285 on page 312 of the record of interview,

is referable to her concealment of evidence in respect

of the offence of rape with which she was actively
involved, she having cut the pants, and not a

proper basis upon which an inference of participation,

aiding or encouraging murder could be used by a jury.

The statements, in our submission, that appear

where she clearly has demonstrated it is evidence

able to be used in her defence to her assistance,

the Crown having made the whole of the record of

interview an exhibit and although different weight

might be given to different parts, in our submission
it is not correct to say that a jury should simply

disregard or put on one side or put at naught those

parts of the narrative and label them as self-serving

and therefore not to be relied upon and, further, in

our submission, particularly as there is the

independent confirmation from Watts who would have

been expected to bleat or protest very loudly if

she had minimized any role she might have played in

the killing.

If we could come to the judgment of

Chief Justice Macrossan and Justice McPherson

commencing at page 446 and proceeding straight to

page 451, His Honour, at about line 6, referred to

self-serving portions of the statement, and at

page 451 at about line 58 His Honour referred to - if

I could read the passage:	But other evidence given in a particular	case and an awareness of the possibility
that admissions against interest may
tend to be more reliable than self-serving
portions, may also be of benefit in
conducting the same exercise.

In our submission, although that may be the theoretical

basis for the admission of statements against

interest, when it comes to the actual assessment

of evidence in the context and particularly in the
circumstances such as fell in this case, it is really

of little weight.

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McHUGH J:  Well, except that she was very conscious of the

effect of her answers. There is an answer, I think

it is number 202, where she says, "I have to be

careful. It will make me an accessory and I already

am an accessory" - yes, it is question 202.	She
was asked:

Did that concern you at the scene?

I guess the answer is yes but I have to

be careful how I answer that I mean it

makes me an accessory to murder but I

guess I am an accessory to murder, it

couldn't be any worse.

So in giving her answers she was obviously conscious of the need to protect herself as far as she could, or at least the jury could take that view.

(Continued on page 11)

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MR COPLEY:  But the amount of detail that she went

into really, in our submission, would be

a strong countervailing feature, Your Honour.

The matter that one would think that she would

have some, or might have had some concern to
guard against at the earlier time when the two
hand-written statements were prepared were
her participation in the quite serious offences

of abduction, of deprivation of liberty, and

rape. Then her conscience got her, it appears,

apparently from - - -

McHUGH J: It may not have been her conscience. It

would appear from the taped record of interview

that she was aware that the police knew a great

deal.	They had the number of the van,
·they had - or .che car, and they had everything else.	They had been interviewing relatives and other
people.

MR COPLEY: There is reference to that other point,

but how strongly her conscience might have

been playing on her does not have to be gone

into. But then it does appear that she has

gone right through, and with the exception

of minor little points really, it is - - -

BRENNAN J: These are good jury points, but how do

they sound in this Court?

MR COPLEY: In relation to the independent assessment

of the evidence that the Court of Criminal

Appeal is required to conduct, in our submission,

it is not sufficient for the court to do,as was

done here in the joint judgment, to refer to

a number of matters, without making the

requisite assessment and say that these were

matters for the jury, or these were matters

for assessment, these were matters for the

jury to assess.	The judgment of
Chief Justice Macrossan has a -number of such

passages. Completely put on one side is any

statement which may be favourable to her. If

the assessment that the Court of Criminal Appeal

is to make is to be made fairly as if in the

role of the jury, those matters would have to

be taken into account, not, as it were, to be

put completely aside and not taken into account,

otherwise the assessment such as might be done

must be terribly one-sided.-unfairly

one-sided - and· in puttin~ aside,· right at the

beginning, any statement that favoured her

is being self~serving. The only evidence a~le

to be forth.cornir..g being fro1J1 her, Watts

a9:r,arentiy refusing to make any statement.

The only other matters that might be suggested

are internal matters, but no internal matter

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is identified by the Chief Justice as lending

assistance in the assessment which may be

done.

GAUDRON J: 

Mr Copley, are you putting this on the basis

that the evidence available to the jury to
convict was all in all not such as safely
to base a conviction, or, as I suspect you are,
that the jury should have had account of these
matters, because I do not think if you put it

on the last basis you proceed nowhere at all?

MR COPLEY: 

It ~as to be on the first basis that

there was -

GAUDRON J:  And I do not see how it comes in on the

first basis - - -

MR COPLEY: That the - - -

GAUDRON J:  - - - because, in any event, the whole

nature of the crime, the events which happened,

were always such as to give rise to an

inference that she was party to what in fact

eventually happened. There was always that

inference there from the very nature of the

transactions.

MR COPLEY:  Your Honour, if one were to assume just

for the moment that what she has said

in the self-serving portions just might be

correct, it might - - -

GAUDRON J: Yes, but that is the second basis on which

you put it. That has to be - that is what

you say - well, you say that is not the way

you put your case to this Court. I can

understand the arguments, but they are jury

arguments.

MR COPLEY:  I was just trying to answer Your Honour.

GAUDRON J: Yes.	(Continued on page 13)
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MR COPLEY: If one were to just assume for the purposes of

argument, that what she said was correct or might be correct, there is no evidence to the contrary.

GAUDRON J:	But there is the evidence which comes by way of inference from the nature of the transaction, the
relationship between the parties in relation
to the transaction.
MR COPLEY:	Your Honour, if what she says, in fact, did

occur, how would one ever, ever be able to exculpate

oneself, having agreed to a plan: totally inunoral,

evil though it may be, but which did not include an

agreement to murder, ydu·would always be subject to

that particular inference which, Your Honour says, the

very facts and circumstances allow to be drawn - used.

But when one considers the totality of the evidence

and including the self-serving parts, those parts

confirmed by the tape-recording, in our submission,

it is not reasonable and safe to allow a conviction

for a person to stand where the circumstances are such

that it just might be true.

BRENNAN J: But .your response to Justice Gaudron is :)osited on the

preposition that the agreement extended to the

abduction and the rape, but not to the murder.

What do you say to the proposition which seems to

underlie much of what the rrajorityin the Full Court
said, that if there are these two people who are
minded to engage in this series of criminal events,
it is inconceivable that they would not have thought
of how they were going to dispose of the victim when

the fell deeds were done.

MR COPLEY:  Part of the answer to that is provided in the

record of interview at question 213:

Do you agree that at the very best the girl who was taken to the bush was going

to be raped and left in the bush?

Thats what I thought yeah.

But in further answer to Your Honour, if it is

to be ?Osited that murder must result, that a killing

must result, it would rnean that any time there was an

abuuction, that murder must result, or, to take it
not to the stage of murder, but in order to facilitate
flight or an endeavour to escape, if the eyes of the

victim were put out; if he or she were blinded, must

it necessarily follow that that was a probably

consequence of the plan to abduct and to conunit an

offence, or, other examples might be suggested such

as cutting out the tongue, but some criminal act,

stopping short of murder - - - ?

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BRENNAN J:  One does not have to postulate a general

proposition. One looks simply at the nature of

the depraved plan that was agreed to by these two

people.

MR COPLEY: Yes

BRENNAN J:	The age of the child that was selected, the part that she took in abducting the child and what
happened up to the stage when he set about taking
the child's life. Now, looking just at those facts,
how does one say that the jury could not, from those
facts, both conclude that there was a plan which
extended to the murder, and support a rejection of
the self-serving statements in the record of interview?
MR CROPLEY:	The plan itself: one has to go to the evidence as

to just what was the plan which she had agreed to, and

it was not a plan that required the use of any weapon

on the victim that would be likely, or probably result

in death of the victifil

(Continued on page 15)

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MR COPLEY (continuing): If one of the participants takes it,

during the course of proceedings, to kill, realizing

at that stage, his lust having been sated, that he

is going to have to get out of this it may well be

something that the other participant has not even

foreseen or envisaged as being likely. That is

why, in our submission, in considering the matter

under section 8 of the CRIMINAL CODE it is not a matter merely of an act which follows on in time sequence or can, after the event, be said to be

foreseeable that that might have occurred,but it has
to be an offence of the nature that flowed from the

prosecution, that is, the furtherance of the plan.

You are going to have to look to the plan

itself and not to construct, at the end of the day,

"Well, they had to get away, therefore they had to

kill" and it is not surprising that one of them

did kill. That is taking it too far), in our

submission. Your Honour, we did refer in the

outline to matters or e~amples where the joint

judgment referred to points and some of these
appear, conm1encing at page 453, lines 46 to 50,

and this is in a passage where His Honour refers

to certain parts of the evidence that we have
already touched on and then speaks of:

The jury, having in mind other parts of the appellant's

I am reading at line 22 -

description of events, may not have

accepted that she had no inkling of what

was to come at the conclusion of the rape

particularly since she had heard Watts

express himself in this fashion.

Now, in our submission, it is not a proper test

to say that someone may have had no inkling because

if they hadbeenthe very acts that she, herself,

had performed the acts would have had to have been

done with the intention of conm1itting the murder

or grievous bodily harm and not merely with the

foresight that there was some risk or possibility

involved. Then, further down at page 453, about

line 46, His Honour says:

The jury would be entitled to draw from the

appellant's remark an indication of some

foreknowledge on her part of Watts's

intention to kill the girl.

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Now, in our submission, the evidence really

does not bear the interpretation which is placed

on it there. We have referred to answer 175.

In our submission, what is there said is a statement by her with a realization that if everything is over, why is the victim being

rebound, regagged and the binding put on her mouth
and it is in that context that the statement was

made by her, "But can't we just let her go."

That statement is said to suggest some foreknowledge

on her part of the intention to kill. In our

submission, it does not reasonably bear that

interpretation.

At page 454, about line 40, is the passage

which concludes there, S!l:arts :

The appellant said that at one stage during

the despatch of the unfortunate girl, Watts

called out to the appellant to come and

help him but she did not go to he 1 p him and turned

away. Whether, if this account was true,

she was simply exhibiting squeamishness or

something different would have been for the

jury to judge.

His Honour then suggested there may have been

a variety of emotions at that time experienced by

the applicant but nowhere does His Honour refer to

the possibility that why she did not assist was

because she was not aiding, she was not encouraging,

and that these other possibilities that the jury

- what are said to be possibilities were for the

jury to assess - whether the jury did that assessment

or not or whether, having made the assessment that

they thought there was squeamishness or whatever

other emotion, the fact still remains that it is

open that she was simply not assisting and that is

a matter which is not even addressed in the

judgment. That has already been put aside. It is our submission, this is again an indication that there is not the requisite assessment being formed.

(Continued on page 17)

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MR COPLEY (continuing):  At page 455 point 1, that

particular passage continues on and it said:

but if it was true, as she said, that

Watts called out for her to help, the jury

might think that this revealed that Watts

was continuing to view her as a potential

source of assistance and this in turn

might provide some insight into how she

had acted up to this point ..... and how she

had disclosed her own position and her

attitude and willingness ..... the plan had

been in the course of formulation.

All of those things may be accepted-hut the· fact

that she has assisted in the antecedent offences does

not indicate that at this stage she was continuing to

assist and the fact that he has asked for help, help

which had not been forthcoming, and that help was not

given does not satisfy a requirement that it has to be

proved that she aided him and, on the Crown case, by

encouragement. The mere fact that he calls on someone

for help is no evidence, in our submission, given that

she has said, "No, please don't do this"and has departed
physically from his presence although still within

eyesight of what is going on. So, in our submission,

that particular passage does not assist in deciding

this particular question and does not bear the

placed on it. interpretation that :is said that the, jury could have

TOOHEY J:  That argument, Mr Copley, is addressed in terms

of section~ is it no~ of the Code?

MR COPLEY:	That is so.
TOOHEY J:	And, so far as section 8 is concerned?
MR COPLEY:	In relation to section 8, it is a matter of its

being the probable consequence of the prosecution of

the unlawful purpose. You ~o not get any _

assistance, in our submission, from that particular

passage on-the· section·8: questio~, Your Honour

the mere fact that one participant,in what she'has already

participated in, calls on her for help, which help she

does not give, at a time when he is killing.

TOOHEY J:  Perhaps not from that particular incident but a

number of the submissions you have made to us might not

assist you at all in relation to section 8 whatever

assistance, if any, they might give you in relation to

section 7.

MR COPLEY:  Yes, in relation to section 8, the matter really

boils down to the question of whether in any case where

there is abduction and the circumstances of this case

C2T51/l/JH	17	5/12/89
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where there has been abduction for the purpose of rape,

that it must be said that on the evidence that has been

presented a jury acting reasonably could find that the

killing was a probable consequence of the furtherance

of the plan rather than, as we would submit, where Watts

has simply gone totally beyond what the plan was.

And even though it might be said that she ultimately

got some benefit in a sense from it, that is the

possibility that her participation might not be

discovered.

TOOHEY J:  In terms of probable consequence, when you have

two people who abduct a young girl with the knowledged

purpose of one of them raping her and they take her in

circumstances where neither makes any effort to conceal

identity and, as the Court of Criminal Appeal points

out, either to conceal their own identity or the

identity of the vehicle, it is not a very big step to

conclude that it was a probable consequence of that

activity that the child would ultimately be killed.

MR COPLEY:  Not as part of the prosecution of the plan,

in our submission, because that then means, in our

submission, that you really have to look to what was

foreseen objectively as being the prosecution of the plan

and not to look to what actually has resulted. You see,

there is clear evidence there that in that earlier

question 213, she is going to be:

left in the bush?

That is what this woman's state of mind is and I acknowledge that on authority under the Code it is an

objective test not what she may have foreseen herself

but objectively speaking what is the foreseeable

consequence. But if the plan of abduction and rape is

completed and then one of the participants suddenly

realizes how ill prepared, ill planned, the matter

has been and decides to kill, murder should not be

visited on the other participant. It is not the

probable consequence of the plan, it is a matter where

he has gone a stage further, in our submission.

BRENNAN J:  It may be that section 8 does not have anything

to do-with it because a further offence in section 8

is one that must be conm1itted in the prosecution of the

unlawful purpose,not subsequent to its completion.

MR COPLEY:  That is so and if the plan is completed at that

stage, answer 175, it is not done in the prosecution

of the plan, it is something subsequent to it.

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MR COPLEY: That is so, and if the plan is completed

at that stage, answer 175, it is not done

in the prosecution plan, it is something

subsequent to it.

BRENNAN J:  I do not know. You would have to go back

perhaps to the cases that deal with the

old element of murder and manslaughter in
the prosecution of an unlawful purpose.

But perhaps that does not really overcome the main problem which I understand

Justice Toohey is putting to you, and that

is that from the point of view of section 7

and presence at the scene and the complexion

that is to be put on presence at the scene

at the end of the completion of the rape,

what inference is to be drawn from that?

MR COPLEY: That she is there at that time.

BRENNAN J: Perhaps I should put it in a different way.

What inference was it reasonably open to the jury to draw from her participation in the events and her remaining at the scene while the child was killed and her accompanying the

accused thereafter until the time of arrest?

Is that capable of supporting the inference

that she was a party to the offence of murder?

MR COPLEY:  We submit, no. But it is certainly capable

of clearly showing that she did have a guilty

mind and had some community of interest with

him because of the participation that had taken

rylace between them in the acts of abduction

-and rape. It was quite a remote spot where

she was. It could be said that she could have

walked away, but it would not be a matter where

she could go for help, given how on the evidence
it was many miles into the bush at the back of

Noosa. There was evidence as to how many

kilometres from the main road and how many
kilometres further on.	But the fact that she

remained there is not a proper basis in the

circumstances to infer that she thereby

at the time of the killing encouraged the

killing, and the fact that she remained with

him, her husband, after the event up to the time

of their arrest and assisted him, again, in our

submission, is not capable of reasonably leading

to the inference that she thereby encouraged the

killing rather than she was covering up the

abduction and the rape in which she was a guilty

party.

If the Court pleases, in respect of the

cases and the authorities concerning section 7

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the matter is set out in the outline and unless

the Court wishes to hear these particular

authorities - they are well known - developed

in any way, we do not intend to take the

Court's time. This is moving to paragraph 2(b)

in relation to section 7, that is aiding.

It is our submission that her presence

at the scene, the acts that she did-were all

referable to the abduction and rape, not to

murder. Her actions are to be looked at in that

light. That where it is said that she has

encouraged, something more than mere presence

would be necessary in the circumstances of this

case and there would need to be some evidence that
v.fatts was in fact encouraged. There is simply

no evidence that there was anything said or

done by her that in fact encouraged him, and

the authorities are there referred to. It

is CLARKSON at the top of page 3, Your Honours.

On the matter of section 8 as being the offence corrnnitted in the prosecution of the

unlawful purpose, we would submit that the

court did not consider the particular question which section 8 of the CRIMINAL CODE mandates.

The Court is familiar with section 8, that

is where:

two or more persons form a corrnnon

intention to-prosecute an unlawful

purpose in conjunction with one another,

and in the prosecution of such purpose

an offence is corrnnitted of such a

nature that its corrnnission was a probable

consequence of the prosecution of- such

purpose, each of them is deemed to have

corrnnitted the offence.

That the offence has to be in the prosecution of

the purpose, namely the furtherance of the

purpose, we would refer the Court to ~SG V

PHILLIPS & LAWRENCE, (196 7) Qd R 23 7 at 259. This is the

judgment of Mr Justice Hanger, as His Honour

then was.

(Continued on page 21)

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MR COPLEY (continuing): It was not a case involving murder.

It was a case where the sense of what His Honour
has said may be gathered from the bottom of page 258.

His Honour had answered a question from the jury:

it is not necessary for the Crown to go as

far as that. If the bashing was for the purpose

of robbing and that was followed by a robbery,

it would be very clear that all who took part

in the bashing and robbery would be guilty.

If some of them bashed only and some robbed, it would not make any difference, as long as

bashing and robbing; but the Crown does not put	they were all acting for the joint purpose of
it as high as that. The Crown case is on this basis: as long as there was a common purpose,
a joint purpose for them to assault and after that joint assault robbery ensued by some one
or more, that would make all of them guilty of
robbery in company with personal violence.

His Honour points out:

This direction omits the requirement that the robbery must be done in the prosecution

of the original purpose.

t'Tot somet~ that flows afterwards. -.And_ that 1 in our sub.nission,

is made clearer in the judgment of Mr Justice Hart

at page 282 about point 6 of the . .

way down the page, where His Honour having referred

to Halsbury's Laws of England, third edition, and

we would make the submission that in this particular

context there is no relevant difference between the

common law and theGode for this purpose.

TOOHEY J: And how do you apply that principle, Mr Copley,

to the facts of the present case?

MR COPLEY:  In the facts of the present case, in our submission,

the killing would have to be shown to have been done
in furtherance of the plan and the plan did not

i~"mlve more than the leaving of the girl in the

bush.

GAUDRON J: But you put that complexion on the evidence by

reason of one question and answer in the record of

interview. The evidence is capable of giving rise
to quite a difference complexion,namely that the

common plan was to kill.

MR COPLEY:  But Your Honour, we are unable to identify any

statement that evinces an intention in the

applicant to kill, or knowledge - - -

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GAUDRON J: What I am putting to you, Mr Copley, is that

the very nature of the transaction that was

engaged upon, the relationship of the parties,

statements by the male accused that he wishes to

be the first and the last, all, when added up, give

rise to an inference which the jury was quite

entitled to take, that the common plan was to kill.

MR COPLEY:  Your Honour, if it is to be a connnon plan or the

common design, it is not what one intends, but the other does not intend; it is the connnon plan that is common to both of them. And what is common to

both of them here, in our submission, does not include the killing and particularly when the killing results,

not as part of a desire to be the first and last man,

but in order to evade capture.

GAUDRON J: You take particular complexions with particular

questions and answers to reach that decision,

Mr Copley, I think.

MR COPLEY:  It is a matter that we submit is reasonably open

on the evidence.

GAUDRON J:  Yes, but you have got to go further than that. You

have got to say that the common plan to kill is not

fairly and reasonably open on the evidence.

MR COPLEY:  The submission that we make is that the plan to

which she was a party did not involve killing and

it was not a probable consequence of the plan to

which she was a party. Some statements made by

Watts, her husband, of wanting to be the first and last person in someone's life, are equally able to be

referred to not an implied intent to murder whoever

the person was, but some fantasy of his, wanting to

be the first and last person in someone's life and

not necessarily indicative that whoever the person

was would have to be killed; certainly something that

she did not take a not part of the plan that she

was party to. (Continued on page 23)

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MR COPLEY (continuing):  The killing did not result from that

plan. The killing resulted from the perceived need

to avoid capture, something communicated to her
after that to which she had agreed had been

completed.

BRENNAN J: Mr Copley, assume for the moment that the evidence

was that these two people were identified as she

drove off the car from the park at Noosa, that she

was seen sitting next to the little girl as they

drove into the woods with the husband driving and

that the girl's body was found bound, gagged and

with signs of sexual violation and that the two of

them were then seen driving out of the woods together

without the victim and both refused to make any

statement to the police. Would that be sufficient

or insufficient to justify a conviction for murder?

MR COPLEY:  It may be. I eoncede that it may be, but this case

is differen~	Your Honou~ because she has spoken
to the police.

BRENNAN J:	But that is the only difference, is _it not?
MR COPLEY:	Yes.
BRENNAN J:	And your argument must therefore be, if bymaking

the statement to the police, the jury were bound to
take the exculpatory statements in that record of
interview as sufficient to deprive the rest of the

evidence of the cogency that was necessary to

establish guilt beyond reasonable doubt?

MR COPLEY:  The exculpatory statements were part of the material

that the jury had available to them. In ordei to

have reasonable doubt about the matter they could

properly have regard to those exculpatory statements.

They are not necessarily to be put on one side.

BRENNAN J:  Not necessarily, but your proposition goes further,

that the verdict is unsafe or unsatisfactory because

of those exculpatory statements?

MR COPLEY:	Because otherwise you are simply having no regard to the exculpatory statements at all, you are having no regard to the evidence that is available to the
jury. You take it back to a denominator much lower,
namely some observed features about the way in which
the person's life was terminated, namely the person who -was ~~en earlier in the car, driving the car, as
Your Honour has suggested.  It would then mean
that no matter what you said you would always be
able to come back to that proposition and say,
"Here are some facts.  They are not all the facts
that we have available to us, but we only rely upon those. We are going to put aside the
exculpatory facts.  Why should we? No good reason.

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We'll be capricious about it. There is independent

support for what she said. The other person who was

with her agrees that everything that was said about the murder is correct. We won't take any notice of

that." Now, in our submission, that is unreasonable

and a reasonable jury cannot act that way, otherwise

in any set of facts you are able to take sufficient

facts where there may be evidence to support them

and say, "That's enough, it doesn't matter what

you say, exculpatory or otherwise". So that it

has to be, in our submission, Your Honour, if

there are exculpatory matters in the material

she is entitled to the benefit of those exculpatory

statements, particularly if there is independent

support for them as there is here.

That independent support was not referred to by the Court of Criminal Appeal and indeed, apart from the passing reference to the fact that there were
the tapes, the particular passage that we have

referred to at page 364, I think it is, simply was

not mentioned by the Court of Criminal Appeal at all.

TOOHEY J:	What do you mean, Mr Copley, by saying that she is entitled to the benefit of the exculpatory statements?
Do you mean any more than that that is material which
the jury may take into account if they accept it as
true?
MR COPLEY:	At least that, plus it is a matter that if the Crown

puts such a statement before the jury and wishes
the jury not to be able to rely upon that particular

exculpatory statement or the exculpatory material, there must be other evidence capable of negativing

it beyond reasonable doubt.

TOOHEY J:  Yes.

MR COPLEY: If I may just return briefly to PHILLIPS AND

LAWRENCE, a passage at the top of page 284 in the

judgment of Mr Justice Hart where he refers to

section 8 of the Code - it is the first full

paragraph and refers to HODGSON's case, and says:

(Continued on page 25)

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MR COPLEY (continuing):

The boy's death in R. v. HODGSON was no doubt a probable result of the prosecution

of the common design but it was not done
in pursuance of the common design, in
furtherance of the common design or for the
purpose of the common design or in the

prosecution of the common design.

We submit that those words are equally applicable here.

The girl's death may have resulted - in the sense of coming at the end of the matter - but it was not done

in the prosecution.

TOOHEY J:  Why do you say coming at the end of the matter?

What is the end of the matter?

MR COPLEY:  The end of the matter is the end of that to which

she had agreed to participate, namely to abduct and

rape.

TOOHEY J:  Why is it that the abduction had come to an end?

I can understand that the rape part had come to an

end, but the abduction was still well and truly on

foot, was it not?

MR COPLEY:  The common design was the abduction, rape and, we

take, leaving in the bush, recognizing what

Justice Gaudron has said.

TOOHEY J: Yes, but that is a sequence of events that seems to

me to be quite artificial.	I mean, why does
abduction precede and terminate before rape?	Why is
there not a plan to abduct and rape, and the

abduction may continue for some considerable time

after the rape has been completed?

McHUGH J: And it did in this case, on any view of the case.

The rape took place during the abduction.	The
abduction was still o~ foot _on anr view of the case.

MR COPLEY~ But tbe p.la~ that they had for the abduction and

rape - the-evidence does not go any further than the

leaving in· 't;he bush. There i.L~.sbeeestion that ...:,~

·the girl was to be kept with them::..:for any period of'

time after that.

TOOHEY J:  No, but you apply an analysis which, it seems to me

at any rate, is somewhat artificial.

MR COPLEY:	It is the only matter that we can refer to from the evidence. It was there, short of the leaving in the bush. It is not as if you are dealing with
people who had a well thought out, or given proper thought to the consequences of what they are doing.

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One would think that proper thinking people would not even contemplate such action, and that may have

been - he may have tested her for substantial

periods of time. It appears that it was something

not spur of the moment in the sense of unpremeditated

at all, but something that was that particular day

that the girl was abducted. In other words, she was

a total stranger - it was just pure chance that that

girl was abducted at that time at Noosa.

Your Honours, the other matter that we wish to

refer to that, if a party does go - one person does go

beyond the scope of common design and commit an

offence which was not part of the common design,

but what we might call the inactive person, is not

liable for what the principal assailant has done.	The
particular authorities we wish to refer to are
referred to in the outline at the top of page 4. It is·;. MArJZBY's. case, the judgment of

Mr Justice Gibbs, and Justice Gibbs, as His Honour then

was giving his judgment of - that was agreed in
by three other members of the Court - he there cites

ANDERSON and MORRIS, and there is a similar passage

in the judgment of Mr Justice Stephen in

JOHNS V REG, at the particular page where the reference

is given. I do not know if it serves any purpose

to actually read the particular passages - all of the
passages, one passage to which particular reference

is made and reliance is placed on is what fell from Acting Chief Justice Gibbs at page 112 of

MARKEY, (1978) 140 CLP. 108, at p,a,;3e 12, tioint 8:

In some cases the inactive participant

in the common design may escape liability

either for murder or manslaughter. If the

principal assailant has gone completely

beyond the scope of the common design, and

for example "has used a weapon and acted

in a way which no party to that common design

could suspect", the inactive participant is

not guilty of either murder or manslaughter.

His Honour there referred to ANDERSON and MORRIS.

(Continued on page 27)

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MR COPLEY (continuing):  We would submit that the

applicant is liable under section 8 only
for such offences as are the probable

consequence of the plan, that-is the

probable consequence of the prosecution

of the plan and "probable" in this circumstance

meaning likely and not merely possible.

"Probable" here, in our submission, has the

meaning perhans of likely to happen, as

explained in REG V CRABBE, (1985) 156 CLR 464,

at-page 469 point 5.

If the Court oleases, those are the

submissions that we wish to make.

MASON CJ:  Yes, thank you, Mr Copley. The Court need

not trouble you, Mr Sturgess.

The Court has come to the conclusion that

there is no reason to doubt the correctness of

the actual decision of the Court of Criminal

Appeal.	The application for special leave to
appeal is therefore refused.	The Court will
now adjourn.

AT 3.31 PM THE MATTER WAS ADJOURNED SINE DIE

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