Christine Ann Lyons v The Queen
[2020] VSCA 127
•20 May 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0197
| CHRISTINE ANN LYONS | Applicant |
| v | |
| THE QUEEN | Respondent |
S APCR 2018 0198
| RONALD LYONS | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | McLEISH, EMERTON and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 24 March 2020 |
| DATE OF JUDGMENT: | 20 May 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 127 |
| JUDGMENT APPEALED FROM: | [2018] VSC 488 (Kaye JA) |
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CRIMINAL LAW – Appeal – Conviction – Murder – Attempted murder – Joint criminal enterprise – Victim mother of four young children – First applicant unable to bear children – Motive to kill victim to enable first applicant to assume care of victim’s children – Attempt by first and second applicants to kill victim by drugging with sedatives – Attempt unsuccessful – Victim violently bashed to death by co-offender on instruction by first applicant – Second applicant assisted co-offender to dispose of deceased’s body – First applicant convicted of murder and attempted murder – Second applicant acquitted of murder, but convicted of attempted murder and assist offender (murder) – Whether verdicts unsafe or unsatisfactory – Co-offender undertook to give evidence against first and second applicants – Whether co-offender’s evidence capable of being accepted – Path to conviction open on totality of evidence – Whether first applicant’s conviction inconsistent with second applicant’s acquittal on charge of murder – Verdicts not inconsistent – Applications for leave to appeal against conviction refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant Ms Lyons | Mr C T Carr with | Stary Norton Halphen |
| Mr R J de Kretser | ||
| For the Applicant Mr Lyons | Mr P J Smallwood | Victoria Legal Aid |
| For the Respondent | Mr C B Boyce QC with Ms E H Ruddle | Ms A Hogan, Solicitor for Public Prosecutions |
McLEISH JA
EMERTON JA
WEINBERG JA:
In the early hours of 23 January 2016, Samantha Kelly, a mother of four young children, was bludgeoned to death in Kangaroo Flat, in a bungalow in which she resided. She was struck approximately seven times to the head with a hammer. The blows were inflicted by a man named Peter Arthur, who later confessed to the murder. He then led police to a dry creek bed near Maryborough, where he had taken the body and partially buried it.
The circumstances leading up to, and surrounding, Ms Kelly’s murder can only be described as utterly bizarre. The motive for the crime was said to be a desperate desire on the part of the first applicant, Christine Lyons, to take over the care of Ms Kelly’s children, Christine being unable to have any children of her own. She, along with Peter, and a cousin of hers by former marriage (who is the second applicant), Ronald Lyons, were alleged to have planned the murder so as to be rid of Ms Kelly, and thereby enable Christine to assume the role of mother to Ms Kelly’s children.
To make matters even more extraordinary, the bashing to death of Ms Kelly occurred only after the three plotters had attempted, unsuccessfully, to poison her slowly by administering various sedatives over several days.
Peter pleaded guilty to the murder. He agreed to give evidence against Christine and Ronald. As a result, he received a significant discount on his sentence. Christine and Ronald both denied any involvement in either the various attempts to poison Ms Kelly, or in the bashing, which actually resulted in her death. They claimed that Peter had done all these things on his own, and without any knowledge, or imprimatur, on their part.
Christine and Ronald were both charged with attempted murder (the unsuccessful attempts to poison Ms Kelly) and murder (the bashing of Ms Kelly to death with the hammer). They were both convicted on 21 June 2018 before Kaye JA, in the Trial Division, of attempted murder. Christine was also convicted of murder, but Ronald was acquitted of that charge. He was convicted, instead, of assisting an offender by helping Peter to dispose of Ms Kelly’s body.
Christine was sentenced as follows:
Charge on Indictment Offence Maximum Sentence Cumulation 1. Attempted murder [common law] [ss 321M, 321P Crimes Act 1958] 25 years 12 years and 6 months 4 years 2. Murder [common law] [s 3 Crimes Act 1958] Life 26 years Base Total effective sentence: 30 years’ imprisonment Non-parole period: 23 years’ imprisonment Pre-sentence detention: 932 days
Ronald was sentenced as set out in the table below:
Charge on Indictment Offence Maximum Sentence Cumulation 1. Attempted murder [common law] [ss 321M, 321P Crimes Act 1958] 25 years 10 years Base — Assist offender (murder) [common law] [s 325(4)(a) Crimes Act 1958] 20 years 4 years and
6 months
2 years and
6 months
Total effective sentence: 12 years and 6 months’ imprisonment Non-parole period: 9 years’ imprisonment Pre-sentence detention: 746 days
Christine seeks leave to appeal against both her conviction for attempted murder, and her conviction of murder. She relies on two proposed grounds:
Ground 1— The verdicts of guilty on charges 1 and 2 are unsafe and unsatisfactory.
Ground 2— The verdict of guilty on charge 2 is inconsistent with the acquittal of Ronald Lyons on that charge.
Ronald seeks leave to appeal against his conviction of attempted murder. He relies upon the following proposed ground of appeal:
The verdict of the jury on charge 1 (attempted murder) is unreasonable or cannot be supported having regard to the evidence.
Particulars:
(a)The prosecution’s case in relation to the charge of attempted murder depended on certain evidence given by Peter Arthur being accepted.
(b)Peter Arthur was so lacking in credibility that that evidence could not properly have been accepted.
For the reasons that follow, we would refuse leave to appeal in both cases.
Background to the commission of the offences charged
In January 2016, Christine and Ronald lived at the same property in Kangaroo Flat. Also living at that property was Peter (who was Christine’s partner and carer). In addition, Ronald’s three sons lived with them, as well as Ms Kelly, and her four children. Ms Kelly was a close friend of Shiralee Lyons, who was Ronald’s cousin.
Christine was unable to have children. She had undergone a hysterectomy in 2006. The prosecution case was that she so desperately wanted to have children of her own that she determined to kill Ms Kelly in order to take over her children as their mother. It was alleged that Ronald and Peter were each devoted to Christine, and that they sought to help her achieve her objective by murdering Ms Kelly.
In that regard, and by way of background, the prosecution alleged that in or about mid-January 2016, Christine, Ronald, and Peter all agreed that they would arrange for Ms Kelly to be killed.
There was evidence that in the preceding months, Christine had asked a neighbouring couple to take part in a surrogacy arrangement with her. During those discussions, she told them that she had approached a number of other people with that same request. There was also evidence that she had provided care, and a home, to two teenage girls who were both subject to out‑of‑home care orders. Further, it was alleged that she had, in effect, taken over the role of mother to Ronald’s three children.
Moreover, the prosecution alleged that in the period leading up to the offending, Christine had effectively taken over the role of mother to Ms Kelly’s children. Christine had become particularly attached to the youngest of those children, a girl named ‘Dorothy’[1]. She had also begun to refer to the second youngest child, ‘Sarah’[2], by the unusual name ‘Neisha’. She referred to Dorothy as ‘Shaneeka’. There was evidence that Christine had said that if she had had daughters of her own, they would be called by those names.
[1]A pseudonym.
[2]A pseudonym.
In late December 2015, Christine and Peter took part in two conversations with Shiralee. They asked her to help them in murdering Ms Kelly. Shiralee claimed that on 18 January 2016, she was involved in a third conversation, this time with Christine and Ronald alone. During that conversation, both applicants had discussed possible methods of killing Ms Kelly.
According to the prosecution, in mid-January 2016, all three offenders agreed to the murder of Ms Kelly by poisoning her with doses of sedatives to which they had access. Peter gave evidence that on one particular evening in mid-January, Ronald crushed and mixed into a drink a number of sedatives (that had been prescribed to Christine). He said that Christine had given that drink to Ms Kelly. That event in mid-January 2016 was described as an ‘uncharged act’. It was said to form part of the background preceding the actual charge of attempted murder, which stemmed from the events of 20 January 2016, and onwards.
On 20 January 2016, Christine and Peter attended a medical clinic. Christine asked the doctor for a prescription for Oxycontin. The doctor, who was not her regular treating physician, refused. Instead, he gave her a prescription for Temazepam, a sedative and sleeping tablet.
Later that same day, Christine and Peter attended a pharmacy, where they obtained the Temazepam for which the prescription had been provided. They also attended a different pharmacy and obtained a quantity of Phenergan, which is, inter alia, another form of sedative.
That evening, Ronald crushed up some of the Temazepam and Phenergan which had been obtained earlier that day. He mixed the drugs into a drink that Christine, once again, gave to Ms Kelly. The following morning, Ms Kelly was seen to be unsteady on her feet. She said that she had been sick twice during the night.
Peter’s evidence was that over the ensuing two days, Christine and Ronald had both given Ms Kelly further doses of medication, which they had on hand.
A toxicological analysis revealed that Ms Kelly had ingested some six different medications, all of which had sedative or associated properties. These included Temazepam and four other drugs which had specifically been prescribed to Christine. The toxicologist concluded that three of the drugs were probably ingested by Ms Kelly in the day or two before she died.
Peter’s evidence was that, in the early hours of 23 January 2016, the three offenders all agreed that the plan to poison Ms Kelly was taking too long. They also agreed that she should be killed by other means. Peter said that, with Ronald’s assistance, he obtained a hammer, and later went alone to the adjoining bungalow where Ms Kelly slept. He said that he could only recall striking her twice, but accepted, when confronted with the evidence, that he must have inflicted at least seven blows to the head.
Before this Court, Mr Carr submitted, on behalf of Christine, that by the jury’s verdict on the charge of murder, they must have accepted a particular aspect of Peter’s evidence to the effect that Christine had either directed him to kill Ms Kelly there and then (rather than continuing with the plan to poison her gradually), or at least that she had specifically endorsed that change of plan. We shall return to that particular submission shortly.
According to Peter, he and Ronald then jointly removed Ms Kelly’s body from the bungalow and put it in the rear of a van. Peter then, on his own, drove towards Maryborough, where he buried the body in the bed of a dry creek, at Shelbourne.
In the days following Ms Kelly’s murder, Christine told a number of people, at least 16, that Ms Kelly no longer lived in the bungalow at Kangaroo Flat. She told them that Ms Kelly had said to her, in the early hours of 23 January 2016, that she had ‘had enough’ and that she no longer wished to care for her children. She had then left, and not been seen since.
There was evidence that following Ms Kelly’s disappearance, Christine took a number of steps in furtherance of her goal of becoming the ‘mother’ of Ms Kelly’s children. The prosecution alleged that those children had become so used to the two youngest daughters being referred to as ‘Neisha’ and ‘Shaneeka’ that they had all reacted strongly and adversely when either girl was referred to by her correct name.
Further, at the commencement of the 2016 school year, Christine withdrew Sarah from the pre-school that she had been attending the previous year. She subsequently re‑enrolled her under the name ‘Neisha Lyons’. The enrolment form listed Christine and Ronald as the child’s parents.
The police investigation
On 9 February 2016, Christine and Ronald made separate statements to police. In substance, each repeated the same false account regarding Ms Kelly’s disappearance that Christine had earlier given to others.
On 11 February 2016, Christine, Ronald, and Peter were all interviewed separately. During the course of her interview, Christine said that she had last seen Ms Kelly on the evening of 21 January 2016. She now claimed, for the first time, that Peter had told her that he had put a pillow over Ms Kelly’s face and that she had fought him off. Christine said that Peter had told her that Ms Kelly had left to go to the police. Christine said that she believed that Ms Kelly was dead.
When asked why she had lied to police on 9 February 2016, Christine gave a number of explanations. She said that she was frightened of Peter. She also said that she wanted to protect him, as well as all of the children, and herself. Christine was taken into custody at that time and remained in custody thereafter.
On that same day, in the course of his interview, police played to Peter the recording of that part of Christine’s interview in which she implicated him in Ms Kelly’s death. Thereafter, Peter admitted to having killed Ms Kelly. He claimed, however, that he had acted in self-defence. He said that she had swung a hammer at him, and he had responded by seizing it and using it to protect himself. Importantly, he told police that Christine had no involvement whatsoever in Ms Kelly’s death.
In the course of Ronald’s interview with police, he claimed that Ms Kelly had mistreated her children. He told police that she had been besotted with Dorothy’s father, who had been physically abusive towards her.
On the following day, 12 February 2016, Ms Kelly’s body was located. Ronald then told police that he believed that Peter may have killed her. After further questioning, he admitted to having assisted Peter in putting Ms Kelly’s body into the van.
On 23 March 2016, Ronald was released on bail. At that stage, he was suspected of having assisted in the disposal of Ms Kelly’s body, but not of having had any involvement in her actual death.
Months later, in September 2016, there was a dramatic turn of events. Peter, at his own request, took part in a further interview with police. He now said, for the first time, that in the two days leading up to Ms Kelly’s death, he, along with Christine and Ronald, had attempted to murder her by administering sedatives, and other medication, in drinks given to her.
As a consequence of Peter’s interview and follow up statement, Ronald was again arrested. He was interviewed again on 26 September 2016. He continued to deny having had any involvement in Ms Kelly’s death, or in having drugged her. He was held in custody from that date.
Procedural history
In November 2016, Peter pleaded guilty before Lasry J to Ms Kelly’s murder. At that point, he gave an undertaking to his Honour that he would give evidence on behalf of the prosecution at the trial of Christine and Ronald. As a result, Peter received a much reduced sentence for Ms Kelly’s murder of 16 years’ imprisonment, with a non-parole period of 13 years. Peter was not charged with any involvement in the attempted murder of Ms Kelly. This lenient sentence turned out to be a somewhat ‘pyrrhic victory’ since an appeal was brought against it by the Director of Public Prosecutions on the ground of manifest inadequacy. As a result, this Court increased Peter’s sentence to one of 22 years’ imprisonment, with a non-parole period of 18 years.[3]
[3]DPP v Arthur [2018] VSCA 37.
After Peter was sentenced, but before he gave evidence against the applicants, he was examined by psychiatrists engaged by both the prosecution and the defence. The reasons for that will become apparent. Both sets of experts agreed that there was no evidence at all that Peter’s memory was affected by any recognised psychiatric disorder.
The prosecution case against the applicants, at trial, was based substantially, though not exclusively, on Peter’s evidence. The jury was, of course, directed that they must treat that evidence as potentially unreliable. They were warned that they should view the evidence with caution. Nonetheless, they were correctly told that they were entitled, if they saw fit to do so, to act upon what Peter said.
In summary, Christine contends before this Court that it was not open to the jury, acting reasonably, to have been satisfied beyond reasonable doubt of her guilt. She submits that this is true of both her conviction on the charge of attempted murder and her conviction on the charge of murder.
Ronald contends that it was not open to the jury, acting reasonably, to have been satisfied of his guilt on the charge of attempted murder.
Essentially, each applicant relies upon what are said to be fundamental and irremediable deficiencies in the credibility and reliability of Peter’s evidence at trial.
Peter Arthur’s evidence in detail
Peter began by giving largely uncontentious evidence as to how Christine, Ronald, and he all came to live together at the same premises in Kangaroo Flat. He described how, just before Easter 2015, Ms Kelly and her children, together with Shiralee, had moved into the property, with Ms Kelly occupying a bungalow that adjoined the main premises.
Peter said that he was Christine’s carer. In that role, he assisted her with taking her prescribed medication for depression and high blood pressure and generally looked after her wellbeing. He said that he was aware that she had a mild intellectual disability and a series of physical ailments. He said that he had acted as Christine’s carer for about four years, prior to January 2016.
Peter said that about two or three weeks before Ms Kelly’s murder, he and Christine had moved from a bedroom in the bungalow, into the main house. The aim was to give Ms Kelly, and her children, more space.
Peter’s evidence was that he had met Christine when she was aged about 13 or 14. They were initially just friends. Later, when he was about 19, their relationship developed into one of intimacy. He said that he had, at that stage, asked Christine to marry him, but her family had disapproved. He had subsequently moved away and lost contact with her.
Many years later, when Peter was aged about 39, Christine’s brother contacted him. He asked Peter whether he wanted to get in touch with Christine, and Peter indicated that he did. Indeed, they met up and subsequently lived together. After several months, Peter and Christine moved into Ronald’s home in Bendigo. Peter again asked Christine to marry him. On this occasion, she agreed. They went through a marriage ceremony, which Peter believed, at the time, was lawful. However, he discovered after Ms Kelly’s murder, and while he was in prison, that he and Christine were not legally married.
Peter gave a detailed account of Christine’s fervent desire to have children of her own. He said that she spoke of this regularly, ‘every two or three days’. He claimed that in October or November 2015, she had asked a friend to have a baby for her. She told him that her friend had agreed to do so.
Peter said that when Ms Kelly first moved into the premises at Kangaroo Flat, she and her children slept in the lounge room of the bungalow. Peter and Christine occupied the bedroom, and Shiralee slept in the lounge room of the main house.
Peter’s evidence was that there was a time when Ms Kelly returned to her former home, in Ballarat, in order to retrieve her possessions. She was away for some weeks. She left her three eldest children in the care of Christine, Ronald, and himself. The two eldest daughters slept at the end of the bed that Peter shared with Christine. Ms Kelly’s youngest daughter slept in a cot in the same room.
Peter said that he recalled a conversation in or around Christmas 2015, ‘where Christine had asked Shiralee to take [Ms Kelly] somewhere and make sure she didn’t come back.’ Christine said that she wanted to get rid of Ms Kelly, and told Shiralee to arrange for that to occur. Christine had, on that occasion, spoken of taking Ms Kelly to Mount Gambier, and pushing her into what was known as the ‘Blue Lake’. She told Shiralee that this would enable her to take over the role of mother to Ms Kelly’s children.
Peter then recounted a further discussion which, he said, occurred towards the middle of January 2016. Christine initiated the conversation, and Ronald was present. There was a debate as to whether Ms Kelly was a good mother and a discussion as to whether Christine would be a better mother to the children. Ronald and Christine spoke of ‘spik[ing]’ Ms Kelly’s drink with various medications. Christine said that she had some of the drugs already, and would purchase the rest. The idea that was discussed was to kill Ms Kelly gradually, by means of an overdose.
According to Peter, this plan to murder Ms Kelly by poisoning her was put into effect ‘one Friday night’. Ronald crushed up Christine’s tablets in the bathroom and brought them to the kitchen. Peter was preparing a drink for Ms Kelly, and Christine was present. The drink was administered but had no apparent effect upon Ms Kelly. She simply went back to the bungalow and went to sleep.
For several days, there was no further talk of killing Ms Kelly. Then Christine told Ronald and Peter that she wanted to go to the doctor to obtain a prescription for Oxycontin, which she would tell the doctor she needed for her knee. However, it was agreed that the Oxycontin would actually be put in Ms Kelly’s drink.
Peter said that he accompanied Christine to the doctor. As previously indicated, she was instead prescribed Temazepam. Peter then accompanied her to two separate pharmacies, where she obtained both the Temazepam and Phenergan.
That night, Peter said that he was preparing drinks for Christine and Ms Kelly. Ronald brought in crushed up tablets in powder form and mixed them into Ms Kelly’s drink. Peter handed Ms Kelly her drink. Peter later gave Ms Kelly three more drinks, all of them containing crushed up tablets. As before, however, the drinks appeared to have no immediate effect upon her, and she returned to her bungalow.
The following morning, Ms Kelly came back into the main house. She appeared unsteady on her feet. She said that she had been sick a couple of times during the night.
Peter claimed that later that evening, he took part in a further discussion with Christine and Ronald. It was agreed that Peter would take the Phenergan and other medication out to the bungalow, and tell Ms Kelly, falsely, that these drugs had been prescribed for her. Peter said that he went to the bungalow and gave Ms Kelly the tablets, which she took. Later that night, Christine took still more tablets out to Ms Kelly.
The following morning, Ms Kelly was, again, unsteady on her feet. Christine insisted that it was time for Ms Kelly to take more medication, and she gave a number of tablets to Peter, to give to Ms Kelly. He said that he gave her four tablets, and flushed another four down the toilet. He said that later that day, he gave Ms Kelly a further five tablets. He added that Ronald had given her four more. Peter said that still later, he gave Ms Kelly a further six tablets.
The following morning, Christine gave Peter still more tablets to take out to Ms Kelly. He said that he did so, and that she had taken them.
All of this evidence gave rise to the charge of attempted murder against both Christine and Ronald (charge 1).
Peter’s evidence was that on that night, after the children had gone to sleep, Christine said words to the effect that the tablets were ‘taking too long to do the job’. Peter said that later that night, at about 12:30 am (on the morning of 23 January 2016), Ronald and Christine had said to him that ‘it was time’ to ‘make sure that Samantha was dead.’
Peter gave evidence that ‘Christine said that Ronald could take me out to the unit, to show me … what to use on Samantha.’ He added that ‘Ronald took me out to the unit [the bungalow], took me into the bathroom where I kept me tools, and passed me the hammer and said to use the hammer.’ Peter said that Ronald had told him ‘this is what you’ll use’, and he had replied ‘fair enough.’ According to Peter, he then placed the hammer ‘at the end of the bed in the bedroom’ of the bungalow.
In cross-examination by Mr Williams, who appeared as counsel on behalf of Ronald at the trial, Peter agreed that he had never, in any of his previous statements to police, mentioned Ronald’s assisting him in going out to the unit and selecting the hammer.
Peter said that, meanwhile, Ms Kelly was conscious, on the couch. He and Ronald then returned to the main house. Peter said that there, he drank four or five cans of Jack Daniels in the lounge room. When asked whether Christine had said anything to him at about that time, Peter said that ‘Christine wanted the job done — then and there — but I wasn’t up to it at the time.’ Christine had replied ‘that it was time to kill Samantha.’
Peter said that after he had finished his drinks, ‘that was enough to get up the Dutch-courage to go back out to the unit.’ He then went out to the bungalow and picked up the hammer from the bedroom. He returned to the lounge room of the bungalow, where Ms Kelly was ‘standing in front of the couch’ and struck her to the forehead. She fell back onto the couch. Peter said that he then:
gave Samantha another hit [to the side of the head] with the hammer and then I don’t know what happened after that … I blacked out, but I went back out — back into the main house … where Ronald and Christine were in the lounge room and I told Christine that … the job had been done, where she’d turned around to Ronald and said ‘Can you go and make sure that Samantha is dead?’
According to Peter, Ronald then went out to the bungalow, came back, and said to Christine ‘you’re the mother of … the four children.’ Christine was said to have replied ‘about time’.
The following morning, Christine told Peter to tell anyone who asked after Ms Kelly that she had come into the house at about 3:30 am, and said that she had ‘had enough’. Peter should tell anyone who asked that Ms Kelly wanted nothing more to do with the children.
Peter then recounted how, later that morning, he had gone out to the bungalow and covered Ms Kelly’s body with a gown. In the early hours of the following day, Peter and Ronald went out to the bungalow, carried the body out, and put it in the back of a van, on top of a tarpaulin. As previously indicated, Peter then drove towards Maryborough, and buried the body near a dry ‘wash bank’.
After his return, Peter cleaned the bungalow. He said there were bloodstains on the couch, the carpet, and the walls. Christine had assisted him in that process. Peter also said that he had broken up the couch that was in the lounge room of the bungalow. Ronald had no part in cleaning up, but hired a trailer to take the broken up couch to the tip.
Peter said that when the media began reporting on Ms Kelly’s disappearance, he did as he had been told. He carried out Christine’s instruction as to what he was to say regarding Ms Kelly’s having taken off in the early hours of the morning. When police began investigating her disappearance, Peter gave them the same false account of her having left in the middle of the night, which he repeated in his first statement to police. He, of course, acknowledged, in cross-examination, that what he had said in that statement was completely untrue.
Peter then gave evidence about his arrest on 11 February 2016, and his record of interview, on the following day. In cross-examination, he agreed that ‘about half of his responses’ in his second police interview had been lies. During that interview, Peter was told by police that Christine had said that Peter was responsible for the death of Ms Kelly.
The police then played the recording of Christine’s record of interview to Peter, which prompted him to admit, for the first time, that he had killed Ms Kelly. He claimed that he had acted in self-defence because she had ‘lashed out’ at him. He said that he had ‘grabbed something’, and that he had ‘hit her over the head’. He said that this conduct was entirely unplanned and that he had acted in response to Ms Kelly having swung a hammer at him.
At trial, Peter acknowledged that throughout that record of interview, he made no mention of either Christine or Ronald having had anything to do with Ms Kelly’s death.
In evidence in chief, Peter’s attention was drawn to a letter that Christine had sent to him after they had both been taken into custody. The letter was sent about a month after he had been remanded. Christine had written ‘you need to make sure your lawyers know we did nothing and let them know you were threatening us to keep us quiet.’
Peter’s evidence was that he had made no such threats. He said that he had responded to that letter by saying that he would, as instructed, tell his lawyers that he had threatened Christine.
Peter agreed that he had been informed by police that Christine and Ronald had recommenced an earlier relationship. He said that it was at this point that he finally decided to ‘tell the truth’ regarding Ms Kelly’s murder.
In cross-examination, Peter agreed that he had written to his sister, from gaol, telling her that Christine and Ronald had nothing to do with the killing.
When asked about having been reinterviewed by police in September 2016, and about his second statement, which he made three days later, on 19 September, Peter said that, by that stage, he had discovered that he was not married to Christine. He said that he had decided that it was time ‘for the truth to finally come out’.
Peter acknowledged, however, even by this stage, when he made his 19 September 2016 statement, he had continued to lie about what had occurred. He had still claimed, at that stage, that Ms Kelly had come at him with a hammer, and that he had killed her in self-defence. He had also continued to maintain that Christine had had no role in arranging for him to go out to the bungalow. By the time he gave evidence at the trial, Peter said that this had been a lie.
In the course of the 16 September 2016 interview, police told Peter that the forensic investigations which had been conducted indicated that Ms Kelly had strong sedatives in her system. They told Peter that this would have made her very groggy, and possibly even rendered her unconscious. That did not fit with his description of Ms Kelly having attacked him with a hammer. Even then, that is, in the course of the 16 September 2016 interview, Peter insisted that he had acted in self-defence and that it was a ‘very groggy attempt at a swing’.
Police put to Peter that he, Christine, and Ronald had, for some time, been planning the murder of Ms Kelly. They further put to him that the three of them had agreed on 23 January 2016 that she should be killed that very night. In his interview with police, Peter denied this, insisting that when he went out to the bungalow, he had no plan at all to kill Ms Kelly. When police specifically asked him whether Christine had sent him out to the bungalow, he denied that. He claimed that he had merely gone out there to get a ‘Walker, Texas Ranger’ DVD. He maintained that assertion, notwithstanding the fact that, on his account, it was 2:30 am at the time.
The 16 September 2016 record of interview continued:
Q:I will ask you again, was there an understanding between you, Christine and Ronald that night that Samantha was to be killed?
A: No, it was not an understanding, no.
Q: What do you mean by that, Peter?
A:It means it was never discussed with me on killing Samantha that night.
…
Q:One last question from me. I’m going to put to you a scenario and ask — and invite you to comment. Now, I put it to you there’d been a number of attempts to overdose Sam Kelly?
A: True
Q: On the evening and date of her death and prior to that date?
A: True
Q: And those attempts were not successful?
A: True
Q:And I put it to you — I put to you that in the end, it was decided that she would be finished off by different means which is why she was killed in the manner that she was, what do you say to that?
A: Probably agree with it too. Most likely agree.
At the trial, Mr Kilduff, counsel for Christine, put to Peter a number of passages from his statement of 19 September 2016, made several days after he was reinterviewed by police. He agreed he had written those passages in the statement. He agreed that this statement formed part of his plea of guilty, and constituted the basis of his undertaking to give evidence against Christine and Ronald.
In cross-examination by Mr Williams, Peter claimed that he did not know at the time he made the 19 September 2016 statement that giving evidence against the applicants would entitle him to a reduction in sentence. When pressed on that, he wavered somewhat, saying ‘I knew there might be [some benefit], I wasn’t quite sure.’
In re-examination, Peter confirmed that the following exchanges had occurred in his 16 September 2016 record of interview:
Q:All right. I’ll just get you to concentrate on that night where you say you’ve — you killed Samantha with the hammer, so I’m talking about that night. Now before that actually happened, that is you entering Samantha’s unit, what were you, Ronald and Christine doing in the house before that happened?
A:I was watching a DVD. I was watching Walker, Texas Ranger and Christine spent most of that time in Ronald’s room. Ronald and Christine — Ronald was in and out his room quite a lot. I don’t know what they were talking about and that but it — I know it — towards the end, Christine and Ronald had come out and said that sooner or later Samantha had to go, she had to be killed.
…
Q:But you say, you said earlier, that it was your belief that they were trying to overdose her?
A: Yes
Q: To what end?
A: So they could get control of Samantha’s kids.
Q: Overdose her meaning what?
A: To kill her, to get her- - -
Q: M’mm?
A: To kill Samantha
Q:Was there a discussion at the house that night in your presence of killing Samantha?
A:Not in my presence, no. It — that — I believe that it was done in the bedroom, but it was also said in the lounge room that on this particular night that ‘sooner or later Samantha had to be gone or be killed.’
Q:You see, Peter, I put it to you that there’d been ongoing discussion amongst Ronald and Christine and to some degree, yourself, about killing Samantha and there was clearly discussion that evening which you’ve told us about, about Samantha having to be killed and it was decided by all three of you that it would take place that night. What do you say to that?
A: No.
In cross-examination, Mr Kilduff played to Peter the audio recording of his arraignment before Lasry J on 30 November 2016. Peter agreed that it had been explained to him, by that stage, that he was a potential witness at a committal proceeding against Christine and Ronald, which was scheduled to take place on 13 January 2017.
Peter also agreed that he knew at that time that he would be subject to cross‑examination at that committal hearing. At the time, he confirmed to Lasry J, through his lawyer, that he was willing to swear that his 19 September 2016 statement was true and correct and that it should form the basis of the assistance for which he would be given credit by way of a reduction in sentence.
Peter further agreed, in cross-examination, that Lasry J told him on his plea that he would receive a reduction in sentence, provided he adhered to his 19 September 2016 statement. He agreed that he had given sworn evidence before Lasry J that the statement was true. He acknowledged, however, that some parts of that statement contained lies. He admitted that he knew as much when he swore that those parts of the statement were true.
In cross-examination by Mr Williams, Peter agreed that he understood that if he did not give evidence to the effect that Christine and Ronald had attempted to murder Ms Kelly by poisoning her, the prosecution could apply to have his sentence increased.
The following exchange took place between Mr Kilduff and Peter with regard to his having been questioned at the committal about the 19 September 2016 statement:
MR KILDUFF: And … he asked you this question, ‘When’ — he was reading from your statement, your true and correct statement, do you remember that?
PETER:Yes.
MR KILDUFF: ‘When I went out to the unit that night, I did not plan to kill Samantha at all and Christine didn’t send me out there. Do you see that?’ Answer, ‘Yes.’ Were you asked that question and did you give that answer?
PETER:Yes.
MR KILDUFF: Were you asked this question, ‘This is true and correct?’ Answer, ‘Yes.’ Were you asked that question and give that answer?
PETER:Yes.
MR KILDUFF: On oath, you said yes, that was true and correct?
PETER:Yes.
MR KILDUFF: Lie?
PETER:Yes.
MR KILDUFF: On oath?
PETER:Yes.
MR KILDUFF: Next question, ‘I went out there to get a DVD at 2:30 am.’ Is that correct?
PETER:No.
MR KILDUFF: No, no, I’ll just take you through the questions and answers that were put.
HIS HONOUR: You’re being asked the questions and answers you’re put?
PETER:Yep, sorry.
HIS HONOUR: The question was ambiguous, it’s not your fault. So counsel at the committal read to you this part of your statement where you said ‘I went out there to get a DVD at 2.30 am, is that correct?’ And at committal, you responded, ‘Yes’?
PETER:Yes.
MR KILDUFF: Were you asked that question and did you give that answer?
PETER:Yes.
MR KILDUFF: Lie?
PETER:Untrue.
MR KILDUFF: Untrue. When you were giving evidence at the committal, you knew, didn’t you, that your sentencing discount was on the line there, wasn’t it?
PETER:That did not worry me.
MR KILDUFF: Didn’t worry you?
PETER:No.
MR KILDUFF: Didn’t want a discount?
PETER:All I was concerned about was everyone that was involved get — makin’ sure everyone involved got dealt with by the um law.
MR KILDUFF: You’re a justice man, aren’t you?
PETER:I — I’ve had my fair shares of breaking the law.
MR KILDUFF: You were there, weren’t you, I thought you were there to sort of do justice to Samantha Kelly’s family, weren’t you?
PETER:I was there to — yes.
MR KILDUFF: Well can you tell the jury how it is doing justice to Samantha Kelly’s cause that you lie to the court?
PETER:There’s no justice in it.
MR KILDUFF: I’ll just take you to some more questions and answers … Were you asked this question, ‘And that the sole purpose for going out there was to get the DVD for Walker, Texas Ranger?’ Answer, ‘That’s correct.’ Were you asked that question and did you give that answer?
PETER:Yes.
MR KILDUFF: Lie?
PETER:Yes.
MR KILDUFF: Did you have a fight with her?
PETER:No.
MR KILDUFF: So when you were asked this question, ‘That is right, and did something happen out there, when you went out, went out to get the DVD, that caused you to have a fight with her. Don’t describe it, but did something happen?’ Answer: ‘Yes.’ Were you asked that question and did you give that answer?
PETER:Yes.
MR KILDUFF: Lie?
PETER:Yes.
MR KILDUFF: ‘Whatever that thing was and had I suggest to you’ — this is the question that was being asked of you by [counsel for Christine at committal] — ‘nothing to do with tablets that you’d been taking in and out during the day?’ Answer: ‘No, the fighting had nothing to do with that?’ ‘No’?
PETER:No.
MR KILDUFF: Were you asked that question and did you give that answer?
PETER:Yes.
MR KILDUFF: Lie?
PETER:No.
MR KILDUFF: Truth?
PETER:Yes.
…
MR KILDUFF: Were you asked this question; ‘Do you say that Samantha had a hammer in her hand, is that right’?
PETER:No.
MR KILDUFF: Answer: ‘That’s correct.’ Were you asked that question and did you give that answer?
PETER:Yes. Yes.
MR KILDUFF: Lie?
PETER:Yes.
MR KILDUFF: Were you asked this question … Question: ‘Lost your cool and so far as you were concerned, this case is just that. That incident were you’ve just lost your temper and lost your cool, as you say?’ Answer: ‘M’mm.’ Were you asked that question and did you give that answer?
PETER:Yes.
MR KILDUFF: ‘Is that what it was — is that what it is?’ Answer: ‘Yes.’ Were you asked that question and did you give that answer?
PETER:Yes.
MR KILDUFF: Then were you asked this; ‘That’s the start and the end of it?’ Answer: ‘Yes’?
PETER:Yes.
MR KILDUFF: And what [counsel for Christine at committal] is there doing, isn’t he, he’s relying on what you say in your statement, isn’t he?
PETER:Yes.
MR KILDUFF: Because that’s what you say in your statement, isn’t that right?
PETER:Yes.
MR KILDUFF: You went out there, she came at you with a hammer, you lost control and killed her?
PETER:Yes.
MR KILDUFF: And this is after a period of being explained to you on numerous occasions that you were there to tell the truth?
PETER:Yes.
In cross-examination by Mr Williams, Peter was asked about the evidence that he gave at the committal hearing. Peter agreed that at the committal hearing, he had given the answers read to him:
[COUNSEL]:Is it fair to say you’d been drinking alcohol that night?
PETER:Yes
[COUNSEL]:That you were not in the best condition to respond to this altercation?
PETER:Yes
[COUNSEL]:And you’ve lost your temper and hit her with the hammer?
PETER:She took a swing at me first and—
[COUNSEL]:Yes, well?
PETER:Yes, I — um, lost me cool, yes.
[COUNSEL]:Lost your cool; and so far as you’re concerned, this case is just that, that incident where you’ve just lost your temper and lost your cool as you say?
PETER:M’mm
[COUNSEL]:Is that what it is?
PETER:Yes
[COUNSEL]:That’s the start and the end of it?
PETER:Yes
…
[COUNSEL]:So firstly, coming on from what you said in response to [counsel for Christine at committal]’s questions, I take it there was no agreement between you and Ron, that you go out and kill someone with a hammer?
PETER:No.
In cross-examination, Mr Kilduff took Peter through a series of questions and answers taken from the transcript of his plea hearing before Lasry J on 3 and 4 April 2017. The clear intent of this cross-examination was to demonstrate that Peter was prepared to say anything that might assist him in achieving a reduction in sentence.
Mr Kilduff suggested that, in response to Lasry J’s obvious scepticism as to the truthfulness of Peter’s evidence on the plea, Peter had added a series of allegations against Christine. It was suggested that these additional allegations were all false, but were intended to assist Peter in achieving a reduced sentence. The relevant passages of Mr Kilduff’s cross-examination are somewhat lengthy, but central to the argument presented before this Court:
MR KILDUFF: Question, ‘Now turning to the night in question, just before the break we had’, that was the break where you had to get with your lawyer and work out your story. Remember that?
PETER:I remember the break.
MR KILDUFF: ‘You heard his Honour [Lasry J] pose to me a question about how things developed from a discussion, where Samantha had to be killed, to a situation where you ended up being out in that bungalow with a hammer. Do you recall his Honour’s enquiry before the break?’. Answer, ‘Yes’. Were you asked that question, did you give that answer?
PETER:Yes.
MR KILDUFF: You remember that?
PETER:Yes.
MR KILDUFF: Next question, ‘And what do you say, on your oath to the Court, about what happened on that particular night?’. Answer, ‘On that particular night, Ronald Lyons had taken me out to the unit. Ronald Lyons picked up the hammer to show me what to use. We’d both gone back into the main house where Ronald told Christine what was going to be used, where Christine has said, go for it and where in a matter of fifteen minutes, I drank four Jack Daniels cans to get the courage to go and do it. To go and kill Samantha’. Asked that question, you gave that answer?
PETER:Yes.
MR KILDUFF: And then you were asked this, ‘And you can see that you haven’t, prior to giving evidence today about that matter, you have not previously told the police, the prosecution of that aspect of it’?
PETER:No.
MR KILDUFF: Answer, ‘No’?
PETER:No.
…
MR KILDUFF: A question from his Honour, ‘That wasn’t true?’ Answer, ‘That’s the only thing I left out’?
PETER:Yes.
MR KILDUFF: Asked that question, did you give that answer?
PETER:Yes.
MR KILDUFF: The only thing you left out. Question by his Honour, ‘But you left it out deliberately, did you? I’m sorry, that was a question. Did you leave that out deliberately?’ Answer, ‘No, I did not. It’s during the flashbacks of what I and the nightmares, it came to me, I picked it up what had happened’, is that right?
PETER:Yes.
MR KILDUFF: Were you asked that question and give that answer?
HIS HONOUR: You were asked that question and gave that answer?
PETER:Yes.
HIS HONOUR: Was it a truthful answer?
PETER:Yes.
MR KILDUFF: You’re telling the truth there?
PETER:Yes.
MR KILDUFF: Flashbacks?
PETER:Yes.
MR KILDUFF: Question, ‘It’s a pretty important detail, isn’t it?’ From his Honour. Answer, ‘It is, but I could not remember it until I started to have flashbacks of what I’d done and it’s one thing that I wish I did say in the first place’?
PETER:Yes.
MR KILDUFF: Asked that question and you gave that answer?
PETER:Yes.
MR KILDUFF: My learned friend, the Crown Prosecutor, asked you some questions … she’s asking you ‘What was the first thing you did when you went in there?’ Answer, ‘Um Samantha had walked back around near the couch. I walked into the bedroom, picked up the hammer and walked back out to the lounge room.’ Were you asked that question and did you give that answer?
PETER:Yes.
MR KILDUFF: ‘What happened then?’ Was the question. Answer, ‘Then I struck Samantha.’ Were you asked that question and did you give that answer?
PETER:Yes.
MR KILDUFF: True or false?
PETER:True.
MR KILDUFF: ‘Where was she when you struck her?’ Answer, ‘Standing near the couch?’ True or false?
PETER:True.
MR KILDUFF: Question, ‘What happened when you struck her?’ ‘She fell down onto the couch. I remember striking her once more and then I don’t know what, but I believe on — but I went on to believe that I’ve struck her six or seven or more times.’ Is that right?
PETER:Yes.
MR KILDUFF: Asked that question and you gave that answer?
PETER:Yes.
MR KILDUFF: True or false?
PETER:True.
MR KILDUFF: And that was the end of that in the sense that was your new story, is that right?
PETER:Yes.
In re-examination, the following exchange occurred between the prosecutor and Peter:
[PROSECUTOR]: Do you understand there’s a difference between not giving that evidence because you were trying to protect Ronald and Christine, and not giving that evidence because it hadn’t not come back to you, until you’d had the flashbacks?
PETER:Yes.
[PROSECUTOR]: Which is the truth?
PETER:Didn’t come back to me until I had the flashbacks.
In cross-examination by Mr Williams, Peter agreed that he had pleaded guilty to Ms Kelly’s murder before Lasry J on the basis of a series of facts, set out in the summary of the prosecution opening (which reflected the contents of his 19 September 2016 statement). That particular version of events involved Peter’s never having been directed by anyone to murder Ms Kelly by attacking her with a hammer. Peter also agreed that his counsel on his plea had urged Lasry J to sentence him on the basis that he had been wholly manipulated by the others, and that Christine should be viewed as the ‘architect’ of the murder. Peter agreed that Lasry J had expressed justifiable scepticism regarding that submission.
Peter’s attention was drawn to the fact that Lasry J had ordered that the matter be stood down so that Peter could give his counsel further instructions. After a short adjournment, Peter had elected to give sworn evidence on his plea.
While there is some overlap with what was derived from Mr Kilduff’s questioning above,[4] it is necessary to set out the relevant parts of the transcript of what Peter said, after the break in the plea hearing:
[4]See above, [95].
[COUNSEL]:Now turning to the night in question, just before the break we had … you heard His Honour pose to me a question about how things developed from a discussion where Samantha had to be killed to the situation where you ended up being out in the bungalow with the hammer. Do you recall His Honour’s enquiry before the break?
PETER:Yes
[COUNSEL]:And what do you say on your oath to the court about what happened on that particular night?
PETER:On that particular night, Ronald Lyons had taken me out to the unit. Ronald Lyons picked up the hammer to show me what to use. We’d both gone back into the main house where Ronald told Christine what was going to be used, where Christine has said, ‘Yes, go for it,’ and where in a matter of 15 minutes, I drank four Jack Daniels cans to get up the courage to go and do it, to go and kill Samantha.
[COUNSEL]:And you concede that you haven’t, prior to giving your evidence today about that matter, you’ve not previously told the police, the prosecution of that aspect of it?
PETER:No
[COUNSEL]:Can you indicate why that was?
PETER:Because I still was trying to protect Christine and Ronald.
[COUNSEL]:You accept, don’t you, the version you’ve given previously about this being a situation where you went out and dispossessed Samantha Kelly of a hammer, to be not factually correct?
PETER:Yes
HIS HONOUR: So you haven’t ever told anyone what you’ve just said before today?
PETER:No, I have not.
HIS HONOUR: You made a statement though, to the police, which was produced when you pleaded guilty to the charge [of] murder, didn’t you?
PETER:Yes
HIS HONOUR: And do you remember on a previous occasion in the Supreme Court I think before me, you were asked whether you’d give evidence in accordance with that statement?
PETER:Yes
HIS HONOUR: You were asked whether that statement was true and correct?
PETER:Yes
HIS HONOUOR: And you said it was?
PETER:Yes
HIS HONOUR: That wasn’t true?
PETER:That’s the only thing I left out.
HIS HONOUR: But you left it out deliberately, did you? I’m sorry, that was a question. Did you leave it out deliberately?
PETER:No, I did not. It’s during the flashbacks of what I — and the nightmares that came to, picked it up what had happened.
HIS HONOUR: It’s a pretty important detail isn’t it?
PETER:It is, but I couldn’t remember it until I started to have flashbacks of what I’d done, and it’s one thing I wish I did say in the first place.
Not surprisingly, Mr Williams strongly challenged Peter’s revised account of having been instructed by Ronald to kill Ms Kelly with a hammer. Mr Williams also challenged Peter’s account of having been told by Christine to ‘go for it’ which, it was suggested, was a fabrication. Mr Williams focused upon Peter’s explanation of how he had come to add these allegations against Ronald (and Christine) in the course of his plea. Peter said that his memory of these events had been refreshed over time by ‘flashbacks’ and ‘nightmares’. This explained how he could now say that both Christine and Ronald had played pivotal roles in the change of plan, which led to Peter’s having bashed Ms Kelly to death with the hammer.
Mr Williams’ cross-examination of Peter regarding this matter was effective and instructive.
MR WILLIAMS: When did you first start having these flashbacks?
PETER:It would’ve been a week after I got into prison.
MR WILLIAMS: When you say you had flashbacks, what happened?
PETER:I’d just go still and just lose concentration of what — whatever I was doin’ and just a picture will come — come into mind.
MR WILLIAMS: So you just lie there and things just come into your mind?
PETER:Yes.
MR WILLIAMS: Were they all jumbled, all these things?
PETER:At the start, yes.
MR WILLIAMS: Did you tell anyone about these flashbacks?
PETER:No.
MR WILLIAMS: Why not?
PETER:Because I didn’t want to at the time.
MR WILLIAMS: When you gave your evidence at the committal hearing, had you been having these flashbacks before then?
PETER:Yes.
MR WILLIAMS: The flashback hadn’t come to you then about these allegations that you made about Ronald Lyons picking up a hammer and showing you and so on?
PETER:Not clearly.
MR WILLIAMS: That flashback hadn’t come to you then?
PETER:Not clearly, no.
MR WILLIAMS: Mention it to anyone?
PETER:No.
MR WILLIAMS: It’s a lie, that’s why you hadn’t mentioned it?
PETER:No.
MR WILLIAMS: So you say look, it all became sort of clearer as time went on?
PETER:Yes.
MR WILLIAMS: Put all these pieces together from these flashbacks?
PETER:Yes.
MR WILLIAMS: Well at what point did it become clear?
PETER:It came clear just after the committal.
MR WILLIAMS: After you gave evidence at the committal, just after that, it became clear?
PETER:A few months after it.
MR WILLIAMS: So when you gave evidence at the committal, what you’re saying now is the evidence you gave them was true?
PETER:Yes.
MR WILLIAMS: True, that was your memory as you remembered it?
PETER:Yes.
MR WILLIAMS: This other memory about being directed to go out and do this is something that came to you afterwards?
PETER:Yes.
MR WILLIAMS: Didn’t mention it to anyone?
PETER:No.
MR WILLIAMS: Why not?
PETER:Because I didn’t.
MR WILLIAMS: It’s a pretty important thing, isn’t it, Mr Arthur?
PETER:Yes, it is.
MR WILLIAMS: Didn’t think that’s something you should contact the police about, look I’ve remembered something else?
PETER:Yes.
MR WILLIAMS: Didn’t think that was an important thing?
PETER:Yes, I did but I didn’t contact the police, no.
MR WILLIAMS: So before you had these flashbacks after you gave evidence on oath at the committal, you had no memory of this event of Ronald Lyons taking you out to the unit, picking up a hammer, showing you where it was and saying this is what you’re going to go and do?
PETER:No.
HIS HONOUR: You agree you had no memory of that?
PETER:Yes.
MR WILLIAMS: Is this something that comes to you in dreams?
PETER:Nightmares.
MR WILLIAMS: Nightmares. It comes to you in nightmares.
HIS HONOUR: What, while you’re asleep?
PETER:Yes.
MR WILLIAMS: So you wake up in the morning, you’ve had this nightmare and you think that’s what happened?
PETER:Yes.
MR WILLIAMS: When you first start having these flashbacks, you say it’s all blurry?
PETER:Yes.
MR WILLIAMS: Trying to piece things together?
PETER:Yes.
MR WILLIAMS: It all came together in your mind conveniently when you were pulled up by the judge on your plea when you were giving evidence, did it?
PETER:No.
MR WILLIAMS: Before then?
PETER:Before then.
MR WILLIAMS: Just didn’t tell anyone?
PETER:No.
MR WILLIAMS: So you had a dream that Ronald Lyons gave you the hammer?
PETER:It was a flashback, not a dream.
MR WILLIAMS: Nightmare?
PETER:Flashback.
MR WILLIAMS: When you first start having these flashbacks did you think — do you wonder whether they were true or not, wondering - - - ?
PETER:Yes.
MR WILLIAMS: - - - whether they were real memories?
PETER:Yes.
MR WILLIAMS: Thought they might have been false memories?
PETER:Yes.
MR WILLIAMS: Weren’t sure whether this is actually what happened or not?
PETER:Wasn’t sure, no.
MR WILLIAMS: Are other things — other things you’ve given evidence about in this trial — the result of these flashbacks that you’re talking about?
PETER:No.
MR WILLIAMS: Just this?
PETER:Yes.
MR WILLIAMS: Do you still have doubts about whether this is a real memory, Mr Arthur?
PETER:Some days, yes.
MR WILLIAMS: You decided it was a real memory when it was convenient for you?
PETER:No.
MR WILLIAMS: In fact, these flashbacks Mr Arthur, this is a load of rubbish?
PETER:Bullshit.
MR WILLIAMS: I’m sorry?
PETER:You heard.
MR WILLIAMS: These flashbacks are bullshit?
PETER:They come. When — when you’ve gone through — to — what I’ve done, then yes you have flashbacks about it, and bad nightmares.
MR WILLIAMS: So you remember before you pleaded guilty, your solicitor sent you to see, or before that period that you’ve given about before Justice Lasry, your solicitor sent you to a psychologist, remember that?
PETER:Yes.
MR WILLIAMS: Simon Kennedy?
PETER:Yes.
MR WILLIAMS: He interviewed you, didn’t he?
PETER:Yes.
MR WILLIAMS: Wrote a report for the judge?
PETER:Yes.
MR WILLIAMS: Your barrister relied upon that report in making submissions to the judge?
PETER:Yes.
MR WILLIAMS: When you spoke to the psychologist, Simon Kennedy, did you mention anything about flashbacks then?
PETER:No.
MR WILLIAMS: It’s all bullshit?
PETER:Is not.
MR WILLIAMS: To use your words?
PETER:The flashbacks are not bullshit.
Putting to one side Peter’s evidence of the role played by ‘flashbacks’ and ‘nightmares’ in reviving his memory, Peter was vigorously cross-examined by both Mr Kilduff and Mr Williams regarding many other aspects of his evidence.
For example, in December 2017, after Peter’s plea had been heard, he told Associate Professor Peter Doherty, a psychiatrist, that his earlier account of Ms Kelly having attacked him was true. On this occasion, he said that she had come at him with a closed fist and that he had acted in self-defence in picking up the hammer from the bed. Indeed, he said that he had felt that there was something ‘controlling his mind’ at the time.
Mr Kilduff also challenged Peter with regard to his self-professed history of nonviolence. Peter said that right up until the murder of Ms Kelly, he had never even threatened anyone. He insisted that he had never bashed a woman. However, when pressed, he conceded that he had struck one of Ronald’s children, then aged only seven.
Peter also agreed that in June 2017, he had told his own psychologist, Claudia Mueller, that there were times where he felt like punching others. He had also told her that he had a history of assaults. He acknowledged that he had problems with anger management. Yet, even in the face of the savage beating that he had inflicted upon Ms Kelly, he insisted that he was not a violent man. He maintained that Christine had forced him to kill Ms Kelly because she desperately wanted children.
This latter account, which largely differentiates ‘version three’ from ‘version two’, stems from the ‘flashback’ evidence which, given Ronald’s acquittal on the charge of murder, the jury must also have rejected.
The final item of evidence directly implicating Christine in the murder was Peter’s statement that she had told him, shortly before Ms Kelly was killed, that it was ‘time to kill Samantha’. Peter said that Christine said this to him after he had drunk several cans of Jack Daniels in order to be ‘up to’ killing Ms Kelly. Again, there was no specific challenge to Peter’s evidence as to this statement. Although Peter said that the conversation happened after he and Ronald returned from the bungalow, connecting it in time to the evidence about being shown the hammer, the evidence of this statement was not given before Lasry J and the making of the statement was not said to have been the subject of any ‘flashback’. Peter said that Ronald did not say anything but had gone into the bathroom. This was, therefore, evidence against Christine alone.
The other evidence that was relevant to Christine’s participation in the joint criminal enterprise to murder Ms Kelly, but that might be thought to fall short of a direction to Peter (and that was not left to the jury as evidence of an act or acts in participation or support of an arrangement or understanding to kill Ms Kelly) includes the evidence that Christine said to Peter that the tablets were taking too long to do what ‘she wanted them to do with Samantha’. Once again, this evidence was not specifically challenged in cross‑examination.
In addition, there was Peter’s affirmation of his assertion in the September 2016 statement that Christine had said that ‘sooner or later Sam has got to go — Sam’s got to be killed’.[22]
[22]It emerged in cross-examination, but there was no specific challenge to Peter’s evidence in this regard. See [84] above for the relevant extract of the record of interview.
Finally, there was Peter’s adoption of his September 2016 answer to a leading question put to him by the police officer who interviewed him that ‘it was decided that she would be finished off by a different means’.
All of these matters were capable of bearing on the jury’s decision whether or not to accept the evidence that Christine had told Peter that it was ‘time to kill’ Ms Kelly shortly before he did so.
In addition, the prosecution, as Kaye JA noted in his sentencing remarks, adduced a substantial body of evidence in support of the motive upon which it relied in relation to Christine’s involvement in both the attempted murder and the murder of Ms Kelly. Christine had suffered cancer and undergone a hysterectomy. She desperately wanted to have children of her own and was motivated to kill Ms Kelly in order to take over her children and treat them as her own.
As previously indicated, there was evidence that in the period leading up to the commission of the offences, Christine had proposed to a neighbour that she and her husband be involved in a surrogacy arrangement, whereby the neighbour would bear a child for Christine. In those discussions with the neighbour, Christine had told her that she had approached a number of other people, requesting that they be involved in such an arrangement on her behalf. This was evidence against Christine and not Ronald.
Also as indicated, in addition, in the period leading up to the offending, Christine had provided a home to two teenage girls who were subject to care orders. She had acted as a mother to those girls. She had also taken over the role of mother to Ronald’s children, as well as Ms Kelly’s four children. In particular, Christine had become closely attached to the youngest girl, Dorothy. This too was evidence against Christine and not Ronald.
Accordingly, it was clear from the evidence that in the period leading up to the commission of the offences, Christine had a strong desire permanently to assume the role of mother to Ms Kelly’s children. As Kaye JA observed, this was powerful evidence that Christine engaged in the attempt to kill Ms Kelly, and in her ultimate murder, in order to fulfil her strong desire in that regard.
The prosecution alleged that Ronald and Peter both knew how much Christine wanted to have children of her own. They were both said to be so devoted to her that they were prepared to help her achieve that object by killing Ms Kelly.
The prosecution case was that the agreement to kill Ms Kelly was arrived at in about mid-January. Shiralee gave evidence that several weeks before that period, and specifically in late December 2015, she took part in two conversations between Christine and Peter, on the one hand, and Shiralee on the other, in which Christine and Peter asked Shiralee to help them murder Ms Kelly. Justice Kaye was satisfied, in his sentencing remarks, that those conversations had occurred. This was evidence against Christine and not Ronald.
Although the conversations which Christine had with Shiralee in December 2015 did not form part of either of the offences for which Christine was convicted, they were plainly relevant in establishing that the idea of killing Ms Kelly had been formulated weeks before the plan was implemented.
Justice Kaye accepted that the prosecution case against Christine depended heavily upon Peter’s evidence. The jury was directed to treat that evidence as potentially unreliable, but his Honour considered that it was open to them to act upon it. As he observed:
As a result of its verdicts, it would seem clear that the jury accepted part, but not all of [Peter’s] evidence. In that respect, it is to be noted that some important aspects of [Peter’s] evidence were supported by other independent evidence.[23]
[23]Sentencing remarks, [17].
In that regard, there was independent evidence to the effect that on 20 January 2016, Christine and Peter had obtained Temazepam and Phenergan from two different pharmacies. There was independent evidence that these drugs, or drugs of this kind, were administered to Ms Kelly within the day or two of her having been battered to death.
Justice Kaye concluded that although Ronald was involved in the process of drugging Ms Kelly with sedatives over a period of two days or so, his level of involvement was significantly less than that of Christine and Peter.
As regards the charge of murder, it is true that Peter’s evidence was that both Christine and Ronald determined, in the early hours of 23 January 2016, that Peter should kill Ms Kelly by a different means. According to Kaye JA, by their verdict, the jury was satisfied beyond reasonable doubt that Christine was a party to that decision, but not satisfied that this was true of Ronald as well. In his Honour’s opinion, that part of Peter’s evidence implicating Ronald in the killing of Ms Kelly, concerning the obtaining of the hammer and the instruction to Peter to use it, was ‘artificial and contrived’.[24] It was not surprising that the jury had not accepted that part of Peter’s evidence and had, therefore, acquitted Ronald on the charge of murder.
[24]Ibid [27].
However, the jury must have found that, based on the evidence as a whole, Christine and Peter, together, had agreed in the early hours of 23 January 2016 that an alternative means of killing Ms Kelly should be put into effect. This meant that the jury must have been satisfied that Christine had, in one form or another, directed Peter to kill Ms Kelly there and then, rather than waiting for the sedatives to bring about that result.
There was other evidence admissible against Christine, though not against Ronald. In the days immediately following Ms Kelly’s death, she told at least 16 people that Ms Kelly no longer lived at the premises. She invented a story to the effect that Ms Kelly had said to her, in the early hours of the morning of 23 January 2016, that she had ‘had enough’, and no longer wished to care for her children. She had allegedly walked out, and not been heard from since. That evidence was relied upon as post-offence conduct in relation to the charge of murder. It was said to be an implied admission by Christine, but admissible only against her and not Ronald.
There was also a body of evidence concerning the steps Christine took to further her goal of becoming established as the mother to Ms Kelly’s four children. This included the use of the names ‘Neisha’, and ‘Shaneeka’, and the nomination of herself and Ronald as ‘Neisha’s’ parents.
There were other lies told by Christine upon which the prosecution also relied. These included her assertion that Ms Kelly had physically mistreated her children, that Ms Kelly was obsessed with her former partner, and that he had threatened to kill her. In addition, there was evidence that Christine had assisted Peter in his removal of Ms Kelly’s body by opening a gate to enable the van in which it had been placed to leave. According to Peter, Christine had also, of course, helped to clean the bungalow.
In essence, the prosecution case against Christine was that she had formulated the intention to murder Ms Kelly sometime in late December 2015 and, by mid‑January 2016, had developed a plan to do so by drugging her with sedatives. Justice Kaye, in his sentencing remarks, stated that he was satisfied on the evidence that Christine was the ‘key architect’[25] of the plan to kill Ms Kelly, and that she had ‘orchestrated the means’[26] by which it was put into effect. It was she who had been involved in purchasing the medication necessary to carry out the plan, and in administering each dose of the medication. It was she who had decided when it should be given to her and the dosages by which it should be administered.
[25]Ibid [47].
[26]Ibid.
According to Kaye JA, the part played in the attempted murder by Ronald was less substantial than that of Christine, but not insignificant.
With regard to the actual murder itself, his Honour found that Christine was the principal instigator of the altered plan to kill Ms Kelly, by which she requested and directed Peter, in the early hours of 23 January 2016, to proceed to the bungalow and kill her there and then.
The Crown’s position before this Court largely replicated the findings of fact made by Kaye JA in the course of sentencing both Christine and Ronald. It was submitted that there was a substantial body of circumstantial evidence, admissible against Christine, but not Ronald, which provided independent support for some, but not all, of Peter’s evidence. It was submitted that this body of evidence meant that the jury was entitled to convict Christine of Ms Kelly’s murder, while not being satisfied of Ronald’s direct involvement in the actual killing itself. It was further submitted that there was no inconsistency of a legal or factual kind that would vitiate the verdict of guilty, so far as Christine was concerned.
Conclusion
In our opinion, the Crown’s submissions in this regard should be accepted. The case against Christine on the charge of murder was a powerful one, irrespective of whether the jury accepted everything that Peter said regarding what occurred in the early hours of 23 January 2016. The notion that he acted on a frolic of his own, having lost patience with the process of drugging Ms Kelly to death, can be dismissed as almost fanciful, having regard to the totality of the evidence.
Further, once it is accepted, as it surely must be, that there was an overwhelming case against Christine on the charge of attempted murder, her conduct in that regard was powerfully supportive of her guilt of the murder itself. Peter’s evidence as to what she said to him was sufficiently supported by independent evidence to justify the jury’s verdict. Certainly, it cannot be said that it was not open to the jury to be satisfied beyond reasonable doubt of her guilt of either the attempted murder or murder itself.
For these reasons, we would refuse Christine leave to appeal against either conviction.
The case against Ronald was plainly of sufficient strength to enable the jury to conclude, beyond reasonable doubt, that he was involved in Ms Kelly’s attempted murder. In that regard, we refer to the Crown’s submissions regarding this matter, as set out at [179]–[181], with which we agree. Certainly, it cannot credibly be said that it was not open to the jury to arrive at that conclusion.
Accordingly, we would refuse Ronald leave to appeal against his conviction on the charge of attempted murder.
It follows that leave to appeal must be refused in relation to both applications.
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