Dodd v The State of Western Australia
[2014] WASCA 13
•17 JANUARY 2014
| JURISDICTION | : | SUPREME COURT OF WESTERN AUSTRALIA |
| TITLE OF COURT : | THE COURT OF APPEAL (WA) | |
| CITATION | : | DODD -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 13 |
| CORAM | : BUSS JA |
NEWNES JA
MAZZA JA
| HEARD | : | 17 MAY 2013 |
| DATE OF FINAL | ||
| WRITTEN |
| SUBMISSIONS | : 4 OCTOBER 2013 | ||
| DELIVERED |
| ||
| FILE NO/S |
| ||
| BETWEEN | : MATTHEW SHANE DODD |
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
| Jurisdiction | : | DISTRICT COURT OF WESTERN AUSTRALIA |
| Coram | : WISBEY DCJ | ||
| File No |
|
[2014] WASCA 13
Catchwords:
Criminal law - Appeal against conviction - Manslaughter - Miscarriage of justice - Edwards direction - Post-offence conduct - Error of law - Evidence of alleged admission adduced pursuant to s 155 of the Criminal Investigation Act 2006 (WA)
Legislation:
Criminal Code (WA), s 280
Criminal Investigation Act 2006 (WA), s 118, s 155
Result:
Leave to appeal on ground 1 granted
Appeal dismissed
Category: A
Representation:
Counsel:
| Appellant | : | Mr S B Watters |
| Respondent | : | Mr L M Fox |
Solicitors:
| Appellant | : | Lumlan & Associates |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in judgment(s):
Allami v The State of Western Australia [2013] WASCA 230
Banks v The Queen [2003] WASCA 198
Broadhurst v The Queen [1964] AC 441
Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314
Cooper v The Queen [2012] HCA 50; (2012) 87 ALJR 32
Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1
Dodd v The State of Western Australia [2013] WASCA 80
[2014] WASCA 13
Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207
Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193
Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593
Hedgeland v The State of Western Australia [2013] WASCA 97
Martinez v The State of Western Australia [2007] WASCA 143; (2007) 172 A
Crim R 389
McKey v The Queen [2012] NSWCCA 1
NAD v The State of Western Australia [2013] WASCA 2
Nestorov v The Queen [1999] WASCA 303
Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316
Peacock v The King [1911] HCA 63; (1911) 13 CLR 619
R v Ciantar [2006] VSCA 263; (2006) 16 VR 26
R v Hartwick [2005] VSCA 264; (2006) 14 VR 125
R v Konstandopoulos [1998] 4 VR 381
R v Nguyen [2001] VSCA 1; (2001) 118 A Crim R 479
R v Wildy [2011] SASCFC 131; (2011) 111 SASR 189
RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620
Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573
Watharow v The State of Western Australia [2013] WASCA 112
Wright v The State of Western Australia [2010] WASCA 199; (2010) 43
WAR 1
Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 334
[2014] WASCA 13
TABLE OF CONTENTS
BUSS JA:
An overview of the unlawful killing .......................................................................................... 5
The evidence adduced at the trial ............................................................................................... 6
The critical issue at the trial ........................................................................................................ 6
The appellant's defence ............................................................................................................... 6
The grounds of appeal ................................................................................................................ 7
Ground 1: the belated written submissions ............................................................................... 8
Ground 1: the prosecutor's opening address .............................................................................. 8
Ground 1: Mr Minney's evidence ............................................................................................ 12
Ground 1: the overhead photograph ........................................................................................ 13
Ground 1: the evidence of Mr Farrell ...................................................................................... 13
Ground 1: the evidence of Cassandra (Cassie) Comeagain ..................................................... 14
Ground 1: the evidence of Tonia Comeagain .......................................................................... 14
Ground 1: the evidence of Jack Comeagain ............................................................................ 14
Ground 1: the video footage at the Wintersun Hotel ............................................................... 14
Ground 1: the evidence of Dariece Barndon ........................................................................... 14
Ground 1: the evidence of Tramille McDonald ....................................................................... 14
Ground 1: the evidence of Detective Senior Sergeant Gregory McDonald ............................ 15
Ground 1: the evidence of Mr Ross Hedley ............................................................................ 15
Ground 1: the evidence of Dr Brian McDonald ...................................................................... 16
Ground 1: the prosecutor's closing address ............................................................................. 16
Ground 1: the trial judge's summing up .................................................................................. 20
Ground 1: the appellant's submissions .................................................................................... 26
Ground 1: applicable legal principles ...................................................................................... 26
Ground 1: its merits ................................................................................................................. 34
Ground 2 ................................................................................................................................... 39
Conclusion ................................................................................................................................ 39
| NEWNES | JA: .......................................................................................................................... 39 |
MAZZA JA:
An overview of the case ........................................................................................................... 41
A summary of the evidence adduced at trial ............................................................................ 42
The opening addresses .............................................................................................................. 47
The State's closing address ....................................................................................................... 47
Defence counsel's closing address ............................................................................................ 49
His Honour's directions ............................................................................................................ 51
Ground 1 ................................................................................................................................... 54
Ground 2 ................................................................................................................................... 59
The background .................................................................................................................... 61
The evidence of Detective Senior Sergeant McDonald........................................................ 64
Merit of ground 2 .................................................................................................................. 68
Conclusion and orders .............................................................................................................. 72
[2014] WASCA 13
BUSS JA
BUSS JA: This is an appeal against conviction.
2 On 10 September 2012, the appellant was convicted, after a trial in
the District Court before Wisbey DCJ and a jury, on one count in an
indictment.3 The count alleged that on or about 18 December 2010, at Spalding,
the appellant unlawfully killed Shannon Lee Gail Pearce, contrary to
s 280 of the Criminal Code (WA) (the Code).
Spalding is a suburb of Geraldton.
An overview of the unlawful killing
The victim was aged 27 when she was killed. The appellant was 25.
6 About one month before 17 December 2010, the appellant met the
victim after interacting with her on a social network site, 'Divas Chat'. A
casual sexual relationship developed between them.
The victim and the appellant did not reside in Geraldton. However, each of them had relatives and friends who lived there.
8 On 17 December 2010, the appellant travelled with the victim from
Perth to Geraldton in a motor vehicle hired and driven by Sean Minney. Mr Minney was the appellant's 'cultural uncle'. The appellant called Mr Minney 'Uncle Sean' as a mark of respect.
9 On 18 December 2010, at about 3.30 am, the victim, the appellant
and Mr Minney arrived at 5 Tamblyn Street, Spalding. That address is very close to an area of coastal bushland. The victim, the appellant and Mr Minney alighted from Mr Minney's vehicle at 5 Tamblyn Street. The victim walked towards the area of coastal bushland. On 22 December 2010, a report was made to the police that she was missing.
10 On 25 December 2010, the victim's body was discovered in the
bushland. Her body was decomposed to a significant degree. The decomposition affected the capacity of Dr Clive Cooke, a forensic pathologist, to determine the nature and extent of the victim's injuries and the cause of her death.
Dr Cooke was able to conclude, however, that the victim had
suffered:
(a) a fracture of the left side of the maxilla (upper jaw);
[2014] WASCA 13
BUSS JA
(b) a fracture of the left side of the mandible (lower jaw); (c) fractures of the nasal bones; (d) separation of a previously non-healed facial fracture which had been pinned with surgical plates; and (e) the dislodgement of the left upper incisor teeth.
These injuries resulted from the application of substantial blunt force to the victim's head.
13 Dr Cooke excluded death from natural causes. It was possible for a
person to die from facial injuries, if he or she was rendered unconscious, because of interference with breathing or unprotected exposure to the environment. Dr Cooke was of the view that the victim's injuries could have been caused by a kick, a punch or a blow from a blunt instrument.
14 Dr Cooke noted that the victim's clothing had been disturbed. Her
jeans were unfastened and partly displaced to the mid-hip region. Her
crop top was above her breasts.
The evidence adduced at the trial
15 The evidence adduced at the trial is summarised in the reasons of
Mazza JA. I will not repeat his Honour's summary except to the extent necessary to explain my reasons.
The critical issue at the trial
The State's case against the appellant was circumstantial in character. beyond reasonable doubt that it was the appellant who had killed the victim.
17 The critical issue at the trial was whether the State had proved
The appellant's defence
18 The appellant elected not to give evidence, on oath or affirmation, at
the trial. He relied on what he had told the police in a video-recorded
interview on 26 December 2010.19 In the interview, the appellant denied having caused the victim's
death. He said he did not have any fights with the victim. They had 'too much love for each other' (VROI 21). The journey from Perth to Geraldton was 'an awesome trip' (VROI 20). Everything was 'good'
[2014] WASCA 13
BUSS JA
between him and the victim (VROI 20). The appellant denied having assaulted the victim during the journey. According to the appellant, he and the victim had a slight disagreement concerning his former de facto partner, Tramille McDonald, who lived in Geraldton. Ms McDonald is the mother of the appellant's infant daughter. He said that, on arrival at 5 Tamblyn Street, the victim 'just got up and walked off' (VROI 24). He thought she was planning to stay at a relative's house nearby. The victim walked towards Broome Street. The appellant did not follow her. He 'never left the road'; he 'never left the yard' at 5 Tamblyn Street (VROI 26). According to the appellant, 'it was breaking [his] heart to see [the victim] go … we chose each other' (VROI 25). He said he spent the night in a shed at 5 Tamblyn Street. The appellant acknowledged that he had given the victim's mobile telephone to a police officer. The telephone did not have a SIM card. The appellant claimed he did not know where the SIM card was.
20 Defence counsel put to Mr Minney in cross-examination that the
victim had left her mobile telephone in the back of his vehicle on arrival at 5 Tamblyn Street. Mr Minney said he did not know whether that was the case.
21 In his closing address, defence counsel suggested there may have
been a random, sexually motivated attack upon the victim by an
unidentified person.22 It was also submitted by defence counsel, in his closing address, that
the State did not have 'any real proof' that the appellant had killed the
victim, and 'certainly not proof beyond a reasonable doubt' (ts 65).
The grounds of appeal
The appellant relies on two grounds of appeal. The grounds, as amended, read:
Ground 1
1. There was a miscarriage of justice when His Honour failed to direct the jury adequately, or at all, in relation to the post offence conduct of the appellant.
Particulars:
1.1
His Honour should have directed the jury that such conduct could only be used by them as proof of guilt of manslaughter if they were satisfied that the appellant only
[2014] WASCA 13
BUSS JA
engaged in the conduct because of a consciousness of guilt
of manslaughter.
Ground 2
2. The trial judge erred in admitting into evidence, over objection, a conversation between Detective Greg McDonald and the appellant ('the conversation');
Particulars:
2.1 The conversation contravened section 118 of the Criminal
Investigation Act 2006 ('the Act');2.2 The conversation was not otherwise properly admissible
pursuant to Section 155 of the Act;2.3 (abandoned at the hearing) 2.4 (abandoned at the hearing) 2.5 It was an error for his Honour to find the breach of
Section 118 of the Act was not serious.
24 On 17 December 2012, McLure P granted leave to appeal on
ground 2 and referred the application for leave to appeal on ground 1 to
the hearing of the appeal.
Ground 1: the belated written submissions
25 After the hearing of the appeal the court wrote to the parties and
raised an issue concerning ground 1 that had not been properly developed by counsel for the appellant at the hearing. This correspondence culminated in the filing of additional written submissions in relation to ground 1. The appellant filed supplementary submissions on 11 September 2013, the State filed supplementary submissions on 1 October 2013 and the appellant filed submissions in reply on 4 October 2013.
Ground 1: the prosecutor's opening address
The prosecutor's opening address was, relevantly and in summary, as
follows.
27 The victim was a 'voracious user' of the social network site, 'Divas
Chat'. She used her mobile telephone to access that site every day and, frequently, more than once a day.
[2014] WASCA 13
BUSS JA
28 About one month before 17 December 2010, the victim and the
appellant 'met' each other through this site. Shortly after, they met in
person and an intimate relationship developed.29 On 17 December 2010, the victim and the appellant travelled to
Geraldton as passengers in a motor vehicle hired and driven by Mr Minney. Mr Minney had arranged to stay in Geraldton with his nephew, Kelvin Farrell, and Mr Farrell's partner, Cassandra (also known as Cassie) Comeagain. Mr Farrell and Ms Comeagain lived at 5 Tamblyn Street, Spalding. Mr Farrell was also the appellant's cousin.
30 During the journey from Perth to Geraldton, the victim and the
appellant were drinking alcohol. Mr Minney asked Mr Dodd what family the victim was from. The appellant replied to the effect 'she's a Pearce, the dog cunt'.
31 Also, during the journey the appellant asked Mr Minney to stop the
vehicle. After Mr Minney stopped, the appellant dragged the victim from the vehicle and assaulted her. She began crying. The appellant dragged the victim back into the rear seat of the vehicle and sat beside her.
32 On resuming the journey, Mr Minney turned up the volume of the
stereo to drown out the sounds from the rear seat. He heard the appellant call the victim a 'bloody dog cunt'. Also, he heard the victim sobbing throughout the rest of the journey. He saw the appellant make sharp movements towards the victim, consistent with him continuing to assault her. On arrival at 5 Tamblyn Street, Mr Minney noticed the victim had a swollen eye. He told the victim and the appellant to take their belongings and leave. There had been no previous arrangement for the appellant or the victim to stay at the house at 5 Tamblyn Street.
33 As the victim and the appellant left, Mr Minney heard the victim say
to the appellant, 'Matty, I can hardly see; my eye is shut'. Mr Minney heard them arguing and shouting. That was the last occasion on which the victim was seen alive by anyone other than the appellant.
34 The State's case was that after the victim and the appellant left
5 Tamblyn Street, they walked past Broome Street, and made their way into the bushland nearby. In this area the appellant continued to assault the victim until he caused her death. After causing her death, the appellant placed the victim's body under a canopy in the bush. This was the location where her body was found a week later. As he placed her body under the canopy, the appellant received some scratches to his body (in particular, his back).
[2014] WASCA 13
BUSS JA
35 Later on the morning of 18 December 2010, at about 7.30 am,
Mr Minney and Mr Farrell were together at 5 Tamblyn Street. They saw the appellant walk towards the house from the direction of Broome Street. The appellant was dishevelled. He had scratches, was covered in dirt and sand, and had dried grass and twigs on his clothes and in his hair. They asked him where his 'Missus' was. He told them she had walked away from him to go to her 'auntie's place'. The appellant stayed at 5 Tamblyn Street for a while. He left later on the morning of 18 December 2010 with some other members of his family. However, he returned to 5 Tamblyn Street that afternoon. On his return, the appellant was seen to have a number of mobile telephones. He appeared to be taking a SIM card from one telephone and placing it in another.
36 On the morning of 19 December 2010, the appellant contacted his
former de facto partner, Ms McDonald. She was unaware the appellant was coming to Geraldton until someone told her on the afternoon of 18 December 2010 that the appellant was 'in town'.
37 On 19 December 2010, the appellant sent Ms McDonald text
messages asking her to travel to Perth with him for Christmas. He said he
wanted to spend time with their daughter.38 Ms McDonald and the daughter went to 5 Tamblyn Street. The
appellant met them at the front of the house. Ms McDonald saw he was wearing two socks which did not match and one of them appeared to have blood on it. Ms McDonald and the appellant went to the back of the house where there were other people. The others eventually left. Ms McDonald saw that the appellant had two mobile telephones. He told her one of them belonged to the victim. The appellant asked Ms McDonald repeatedly if she would come to Perth with him and bring the baby so they could spend Christmas together. Eventually, the appellant and Ms McDonald went inside the house. She asked him about the victim's whereabouts. He told her the victim was in Geraldton but he would not tell her where she was. The appellant and Ms McDonald ate dinner together and went to the house of Yvette Mitchell. They spent the night there. The appellant fell asleep on a couch in the lounge room and Ms McDonald slept with her daughter on a mattress next to the couch.
39 On the morning of 20 December 2010, Ms McDonald asked the
appellant if he still wanted her to come to Perth with him. He said he did. There was no further discussion about the victim. The appellant, Ms McDonald and their daughter returned to Perth with Mr Minney. There was very little conversation throughout the journey.
[2014] WASCA 13
BUSS JA
40 Ms McDonald stayed with the appellant for two nights at a house in
Redcliffe. The appellant ordinarily resided at this house with his mother and sister. During their time at the Redcliffe house, the appellant and Ms McDonald never spoke about the victim.
41 On 22 December 2010, the appellant commenced drinking alcohol at
about 10.00 am or 11.00 am. Later, as the appellant and Ms McDonald were walking to the Guildford railway station, the appellant looked at Ms McDonald and said, 'Am I a murderer? Do I look like a murderer?' Ms McDonald asked the appellant what he meant but he did not answer. A couple of minutes later the appellant said, 'I can smell [the victim] on my hat'. He held his hat to his face as he made the statement. The appellant then said, 'She must be here in Perth'.
42 In the meantime, the victim's family and friends had become very
worried about her. No-one had seen or heard from the victim after she and the appellant left 5 Tamblyn Street at about 3.30 am on 18 December 2010. The victim's father contacted the police about her disappearance. Police found her body in the bushland on 25 December 2010. The extent of her body's decomposition was consistent with death having occurred on or about 18 December 2010.
43 A bloodstain found on a white sock seized by police from the house
at Redcliffe matched the victim's DNA profile. A partial DNA profile matching that of the victim was found on the rear seat of the vehicle driven by Mr Minney from Perth to Geraldton. The police collected some twigs near the head and feet of the victim's body in the bushland. A partial DNA profile recovered from one of these twigs matched that of the appellant.
The prosecutor concluded his opening address as follows:
Ladies and gentlemen, in this trial you will hear evidence of the background events which preceded the journey made by [the appellant] and [the victim] on Friday, 17 December 2010. You will hear evidence from Mr Sean Minney, who was the only other person in the car on that journey. You will hear evidence from various people who saw [the appellant] in Geraldton throughout the weekend of 18 and 19 December 2010 and who observed his behaviour during that weekend. You'll hear evidence from Tramille McDonald, who travelled back to Perth with [the appellant] on Monday, 20 December 2010 and who spent a further two nights with him in Perth. You'll hear evidence from investigating police as to the nature of the police investigation into the circumstances of her death. You'll hear evidence from forensic officers who collected exhibits from the primary crime scene and from other
[2014] WASCA 13
BUSS JA
locations. You'll hear evidence from a forensic scientist who compared the cellular material found on the forensic exhibits with the reference samples from [the victim] and [the appellant]. You'll hear evidence from the fingerprint expert. You will hear the evidence from medical specialists as to the cause of [the victim's] death. At the end of this trial you will be satisfied beyond a reasonable doubt that [the appellant] unlawfully killed his then girlfriend, [the victim], in the early hours of 18 December 2010 at Spalding. He had been assaulting her in the hours beforehand. He left ... Tamblyn Street with her in the early hours of 18 December [and] he had the opportunity to commit this offence (ts 56).
Ground 1: Mr Minney's evidence
Mr Minney gave evidence, relevantly and in summary, as follows.
46 During the journey from Perth to Geraldton, Mr Minney, in reference
to the victim, asked the appellant who his girlfriend was. The appellant
said she was a 'Pearce Berlotti dog cunt' (ts 74).
The appellant and the victim drank alcohol as they travelled to
Geraldton.
48 Shortly after passing Dongara, the appellant asked Mr Minney to
stop the vehicle. When Mr Minney stopped, the appellant got out and grabbed the victim. He pulled her from the vehicle. Mr Minney said the victim 'sort of flew out of the car' and he saw her hit the ground (ts 76). Mr Minney remained in the vehicle, listening to music, and did not look at the appellant or the victim while they were outside. He said in examination-in-chief that the appellant and the victim argued outside the vehicle for about 15 to 20 minutes (ts 76), although he accepted in cross-examination that the period could have been 30 to 45 minutes (ts 129). Mr Minney told the appellant and the victim to get back in the vehicle.
49 As Mr Minney continued driving to Geraldton, he heard the
appellant and the victim arguing from time to time in the back seat. Mr Minney turned up the stereo and did not look at what was happening between the appellant and the victim. He thought the appellant may have called the victim 'a dog, a bloody dog cunt once or twice' (ts 78). He did not see the appellant hit the victim.
50 Mr Minney said they arrived at 5 Tamblyn Street, Spalding at about
3.00 am or 3.30 am. He told the appellant and the victim 'to find their own way to wherever they were going to stay' (ts 79). As the appellant and the victim alighted from the vehicle, they were still arguing. The victim was crying and upset. She said 'I can't really see where I'm going
[2014] WASCA 13
BUSS JA
with my eyes closed' (ts 80). She was sobbing and said 'leave me alone' (ts 80). The appellant and the victim walked away from him towards Broome Street (ts 80, 138). They walked into the darkness (ts 80 - 81). After they had walked about 20 m, Mr Minney could no longer see or hear them (ts 80 - 81).
Mr Minney then drank two beers on the porch at 5 Tamblyn Street. He was alone. He slept that night in his vehicle.
52 At about 7.00 am on 18 December 2010, Mr Minney was sitting with
Mr Farrell outside the house at 5 Tamblyn Street. He saw the appellant walking from the direction of Broome Street to 5 Tamblyn Street. The appellant told Mr Minney he had 'slept in the park' (ts 83). The appellant was covered in grass and sand and he had scratches on one of his shoulders. Mr Minney asked the appellant where his girlfriend was. The appellant said she was 'at one of her auntie's [sic] place' (ts 84). Mr Farrell commented to the appellant that he 'looked finished' (ts 84).
53 Some other family members arrived at 5 Tamblyn Street. The
appellant left with a cousin. The appellant returned that afternoon and watched television before falling asleep. Mr Minney noticed the appellant had 'a couple of mobile telephones on him' (ts 87). One of the telephones was the same kind of telephone as the victim's.
On 20 December 2010, Mr Minney saw the appellant at 5 Tamblyn Street with Ms McDonald and her baby.
On 21 December 2010, Mr Minney drove from Geraldton to Perth with the appellant, Ms McDonald and her baby.
Ground 1: the overhead photograph
56 The prosecutor tendered an overhead photograph (exhibit 2). The
photograph shows that Broome Street abuts the bushland. Tamblyn Street terminates at, and forms a T-junction with, Broome Street. The distance from 5 Tamblyn Street to Broome Street is about 50 m. Some of the witnesses at the trial referred to the bushland as the park.
Ground 1: the evidence of Mr Farrell
57 Mr Farrell gave evidence that he and his partner, Cassandra (Cassie)
Comeagain, lived at 5 Tamblyn Street. On the morning of 18 December 2010, he saw the appellant arrive at 5 Tamblyn Street. Mr Farrell said he did not 'see him actually coming from anywhere but sort of straight up the driveway' (ts 147). The appellant appeared to
[2014] WASCA 13
BUSS JA
Mr Farrell 'to be a bit under the weather … from drinking' (ts 147). Mr Farrell noticed the appellant had a few scratches on his arms and forehead.
Ground 1: the evidence of Cassandra (Cassie) Comeagain
58 Cassandra (Cassie) Comeagain gave evidence that at about 7.00 am
on 18 December 2010 she saw the appellant arrive at 5 Tamblyn Street. He was walking from the direction of Broome Street. The appellant told Ms Comeagain he had 'slept at a park but didn't say which one' (ts 176).
Ground 1: the evidence of Tonia Comeagain
59 Tonia Comeagain gave evidence that on the morning of
18 December 2010 the appellant told her 'he lost his phone at the park and
then he woke up at the park' (ts 209).
Ground 1: the evidence of Jack Comeagain
60 Jack Comeagain gave evidence that on the morning of
18 December 2010, after 8.30 am, he saw the appellant and noticed a scratch on the appellant's face. Mr Comeagain asked him if he had been in a fight. The appellant did not answer.
Ground 1: the video footage at the Wintersun Hotel
61 Jack Comeagain gave evidence that in the late morning on
18 December 2010 he and others, including the appellant, commenced drinking alcohol. Later, they went to the Wintersun Hotel and drank beer. A video surveillance tape at the hotel showed the appellant was only wearing one sock.
Ground 1: the evidence of Dariece Barndon
62 Dariece Barndon gave evidence that on 18 December 2010, 'just
before lunch' (ts 195), he saw the appellant holding a black Samsung
touch-screen mobile telephone.
Ground 1: the evidence of Tramille McDonald
63 Tramille McDonald gave evidence that the victim's aunt, Nicolette
Pearce, lived in Bennett Street, Spalding. Yvette Mitchell lived next door to Nicolette Pearce.
Ms McDonald said it took her about 10 or 15 minutes to walk from 5 Tamblyn Street to Yvette Mitchell's home in Bennett Street.
[2014] WASCA 13
BUSS JA
Ground 1: the evidence of Detective Senior Sergeant Gregory McDonald
65 Detective Senior Sergeant Gregory McDonald gave evidence of a
conversation he had with the appellant on the afternoon of
24 December 2010. In particular, he gave this evidence:STANDISH, MR: ... what's your general recollection about what was said---I questioned or spoke to the [appellant] in relation to what he knew of [the victim] and whether he was aware that she'd been reported missing. In that conversation, he disclosed that he had travelled to Geraldton with [the victim] and Sean Minney, that he had had a fight with [the victim] over going to Kelvin Farrell's house, that he had walked down the road to - near a park at which time he'd given [the victim] directions to a friend's house in Bennett Street, that he hadn't seen [the victim] since that time and he didn't know where she was.
You said that he said that he'd walked down the road, did he say whether he walked down the road by himself or in company with someone else---I - I can't recall specifically whether he said he was with [the victim] but he - he walked down the road at which time he's indicated he'd given [the victim] directions to somewhere else so he didn't - I don't recall specifically whether he said he'd walked down the road with [the victim] but he - at that point, near the park is where he'd indicated he'd given her directions to Bennett Street which was some distance away (ts 641). (emphasis added)
66 Detective Senior Sergeant McDonald said in evidence that, as a
consequence of this conversation with the appellant, on 25 December 2010 he gave instructions to the Geraldton Detectives Office to search the bushland near Broome Street. The victim's body was found in the bushland within a short period.
Ground 1: the evidence of Mr Ross Hedley
Mr Ross Hedley is a forensic DNA scientist employed by PathWest.
68 Mr Hedley examined twigs which had been collected by a police
officer from the area in which the victim's body was discovered. In particular, he analysed twigs located near her foot. Mr Hedley gave evidence that he obtained a partial DNA profile from these twigs which matched the appellant's reference profile. The probability of this cellular material coming from someone other than and unrelated to the appellant was less than one in 122 million.
69 A police officer located a sock at the house in Redcliffe where the
appellant lived. The sock was in a plastic bag with some other clothing. The appellant's fingerprint was on the plastic bag. Mr Hedley examined
[2014] WASCA 13
BUSS JA
the sock. DNA extracted from a bloodstain on the sock matched the victim's reference profile. The probability of that cellular material coming from someone other than and unrelated to the victim was less than one in 3.5 billion.
70 Mr Hedley examined a bloodstain found in the middle of the rear
seat of the motor vehicle driven by Mr Minney from Perth to Geraldton. DNA extracted from that bloodstain matched the victim's reference profile.
Ground 1: the evidence of Dr Brian McDonald
71 Defence counsel called evidence from Dr Brian McDonald, a
consultant molecular geneticist. He did not dispute Mr Hedley's findings or his statistical analysis. However, he said the DNA found on the twigs was at such a low level that secondary transfer or contamination could not be excluded as a reasonable possibility. He explained that, as the appellant and the victim had been in an intimate relationship, his DNA could have been transferred innocently to her and she, in turn, could have transferred the DNA to the twigs.
Ground 1: the prosecutor's closing address
The prosecutor's closing address was, relevantly and in summary, as
follows:
(a)
The State's case was circumstantial in character. It had been presented on the basis that 'all of the … circumstances surrounding this incident, when you apply them and put them together globally, they point to the identity of the person who's committed this crime' (ts 2 - 3) (emphasis added).
(b) There was no doubt the victim did not die of natural causes (ts 3). (c)
The appellant claimed in his video-recorded interview with police to have loved the victim. He told the police that when the victim walked away from him at 5 Tamblyn Street it was 'breaking [his] heart to see her go. We chose each other'. The prosecutor invited the jury to consider the appellant's assertions as to his feelings about the victim by reference to his behaviour on the weekend he was in Geraldton. Was his behaviour consistent with someone who was distraught or shattered about the victim having walked away from him (ts 2)?
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(d) The prosecutor referred in detail to the DNA evidence from Mr Hedley that was relied on by the State (ts 5 - 8). (e) On 19 December 2010, the appellant went to Ms McDonald's house, something he would not have done if he had known the victim was alive because the appellant thought Ms McDonald would cause problems in his relationship with the victim (ts 12, 28). (f) A witness, Jack Comeagain, gave evidence that on the weekend in question the appellant appeared to be 'a mess' (ts 24). Another witness, Tonia Comeagain, said in evidence that the appellant was quieter than normal during that weekend (ts 21). (g) The appellant had the victim's mobile telephone on 19 December 2010 (ts 32). The victim used her telephone frequently including, in particular, to access and use 'Divas Chat' (ts 12, 15, 24). Also, the appellant was in possession of the victim's clothing. He did not attempt to return the victim's belongings to her before he left Geraldton. Instead, he replaced the victim's SIM card with his own SIM card and used her mobile telephone (ts 32). (h) The victim's father, and not the appellant, reported the victim's disappearance to the police (ts 25). (i) The prosecutor referred to a statement allegedly made by the appellant to Mr Minney on 18 December 2010 to the effect that the victim was at the home of her auntie. The prosecutor said:
So just bear that in mind when you come to examine the conflict in the evidence of what people say [the appellant] was aware of when he returned from the area of Broome Street that morning. And when he came back, Mr Minney said, he said to [the appellant], 'Where's your girlfriend': I asked him where his girlfriend was and he sort of said ... at one of her aunty's place. Well, we know, don't we, from the evidence of Nicki Pearce, the aunty, that she did in fact live in Bennett Street, not very far away from Tamblyn Street. And that indicates, does it not, that [the appellant] knew that [the victim's] aunt lived in Bennett Street? In fact, he says so in his record of interview, doesn't he? Doesn't he say ... in the record of interview that Nicki Pearce lived in Bennett Street (ts 11).
(j)
The prosecutor referred to the appellant's possession of the victim's mobile telephone, and submitted:
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Why has [the appellant] got [the victim's] phone and what's the explanation for that? Well, it has been suggested to Mr Minney, that Mr Minney, you know, used the remote control to open the car doors and then [the appellant] got the phone out of the car at that stage. But [the victim] didn't leave with the phone, it was always there amongst the rubbish in the back seat and [the appellant] just picks it up there when the doors were opened for him. And really, Sean Minney didn't see what [the appellant] got from inside the car or put inside the car at that time that he opened the doors. Let's assume just for one moment, that [the victim], contrary to everything that you would expect about this woman that was 24/7 on Divas Chat, that she did leave that car without taking her phone. Let's just assume that for a moment. The man who loves her, you know, only true lovers, finds her phone in the car, in the morning, so what would he do, the man who loves her? Well, of course, he'd go around to the aunty's place and say, '[the victim], here's your phone'. He didn't do that. And why didn't he do that? Because he knew she was already dead. He knew that because he killed her. Why would he be taking the SIM card out of her phone (ts 15)?
(k) The prosecutor referred to the appellant's conduct in having sought out and re-engaged with Ms McDonald, and submitted: It was [the appellant] who was initiating contact with Tramille McDonald on that weekend. Tramille McDonald didn't hunt him up, [the appellant] went and tried to locate her. Now, this is the young woman who causes him all those problems. You know, the woman who, if the fate of the aboriginal race depended on it, he wouldn't hook up with her again he hated her so much. And he knew that ... the slight disagreement that he had with the woman he loved, [the victim], was based upon the fact that Tramille and [the victim] might come into contact with each other over the course of that weekend.
Well, [the victim's] gone missing for less than 12 hours. I wanted to know if anything untoward happened to her at that stage, and yet [the appellant] goes to Vincent Street looking for Tramille on that Saturday, in the company of Dariece? Why would he do that? He could only have done that, you might think, because he knew that [the victim] was already dead (ts 19 - 20).
(l) Towards the end of his address, in the course of summarising the State's case, the prosecutor submitted that a number of aspects of the appellant's behaviour on the weekend in question indicated the appellant knew the victim was dead and he had that knowledge because he had killed her: Now, he had all of the couple's possessions in his possession, you know. He had her phone, he had her change of clothes. He let her
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walk away without a change of clothes according to his version. And he never attempted at any time during that weekend to ever get that change of clothes back to her. And he left Geraldton without ever attempting to give her a change of clothes. Now, why would he do that? Why did he not attempt to return those clothes to her? Because he knew she was dead and he killed her. He never attempted to return that phone to her. We've spoken about this before lunch. She lived on that phone. It is inherently improbable that she would have walked away from that car without it and if she had have, then as a loving partner, he would have returned that phone to her, and he didn't. Instead, he just took the SIM card from that phone and he claimed it as his own. He never took that phone back to her because he knew she was dead and he knew she was dead because he killed her. He initiated that contact with Tramille and he wouldn't have initiated that contact unless he knew she was dead. He never called any of her family or friends. He never made a single inquiry about her well being. He didn't even go across the street from Yvette Mitchell's place to Nikki Pearce's place to just ask her, 'Have you seen [the victim]?' And why didn't he do it? Because he knew she was dead and he knew that because he killed her. He never reported her missing to the police. He never made any inquiries of any hospitals, he just didn't make any inquiries at all. Remember, all he did was get on the piss - in his words. He didn't make any inquiries and he didn't report it to the police because he knew she was dead and he knew she was dead because he killed her (ts 32 - 33).
(m) The prosecutor emphasised, in conclusion, the circumstantial character of the State's case and the manner in which the jury must examine the evidence: Now, this is a circumstantial case. No one has seen him do this, but a circumstantial case means you look at all of the evidence and you put it all together. You don't look at just one piece in isolation. I mean if you looked at that DNA evidence in isolation, and particularly ... whatever prospect there is of secondary transfer of DNA, you might be left with some sort of doubt perhaps, because of ... the very small possibility of secondary transfer. You know, if the circumstances were different, if [the appellant] was actually in Perth and his DNA was found on those twigs, well, you'd have probably some substantial doubt. But when you have his proximity to the scene in that he was in Geraldton at that time and he was staying at the Tamblyn Street address which is so close to the primary crime scene where the body was found, where you have him saying to a number of people, 'Well, I slept in the park', where you have a number of people who see him with scratches on his body, where you have him not attempting to contact her at all, where you have him not attempting to return her phone or you have him not attempting to return her clothing or you have him not
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reporting at all to the police and just going on his way, when you have the DNA of ... her blood in [Mr Minney's] car and you have the DNA and blood in the sock that was in his house. When you have Sean Minney talking about the journey up to Geraldton, when you put all of that together, ladies and gentlemen, it only leads to one conclusion. [The appellant] killed [the victim] (ts 33). (emphasis added)
Ground 1: the trial judge's summing up
The trial judge's summing up was, relevantly and in summary, as
follows.
74 His Honour stressed it was the jury's role to carry out 'an objective
and analytical assessment of the evidence', to determine by that process 'what facts are established by that evidence' and then to determine 'whether those facts enable you to conclude that the State has discharged the burden of proof … in respect to the charge' against the appellant (ts 711).
The trial judge added:
In performing your duty, your role, it's vital that you have regard to the total factual material that's been placed before you, that is, the whole of the evidence, what's been said by the witnesses and what is said by the exhibits that has been put in evidence during the course of the trial and also what has been said by the witnesses and the manner in which it has been said (ts 711). (emphasis added)
76 His Honour directed the jury that it was not bound in any way by any
comments on the evidence made by his Honour, the prosecutor or defence counsel. In particular, his Honour directed the jury that it was not 'to confine yourselves only to the matters of fact about which [counsel] might have spoken' (ts 711). It was for the jury, as the judges of the facts, to determine 'what you make of the evidence, and in particular, what inferences you can draw from the facts which you find proved' (ts 715).
77 The trial judge said that, before it could find the appellant guilty, the
jury must be satisfied of his guilt, beyond reasonable doubt, 'having regard to the total factual material that has been placed before you' (ts 715) (emphasis added). His Honour then gave this direction:
In assessing the evidence as it relates to the charge before you there are several positions that can be reached. If on all the evidence you're satisfied beyond reasonable doubt of the guilt of [the appellant] in respect of the charge, then it is your clear duty to return the verdict of guilty. If you believe that [the appellant] was giving a truthful account of events in the
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recorded interview, or you're unable to reasonably exclude that account as truthful, then you'd be obliged to return a verdict of not guilty. If, at the end of the day, you're left with a reasonable doubt as to where the truth lies on matters fundamental to the elements of the offence, as I'll explain those elements to you, then you'd be obliged to return a verdict of not guilty since if you couldn't determine what the true position was [the appellant] would be entitled to the benefit of the doubt which [you] would clearly then hold (ts 715). (emphasis added)
78 His Honour told the jury 'there [was] no evidence directly identifying
the [appellant] as the offender and of … course the State case against him
is circumstantial' (ts 717).
The trial judge explained the difference between direct evidence and circumstantial evidence:
Now, evidence given at trial, broadly speaking, can be divided into two categories, direct evidence and circumstantial evidence. Direct evidence of a fact consists of the assertion of that fact by a person claiming to have witnessed it, to have perceived [it] with his own senses, to have seen it, heard it, smelt it or sensed it. So direct evidence may also be in the form of a document or other exhibit which is objective evidence of the facts conveyed by that exhibit. So the photograph of a person is direct evidence of the person's state at that time. Now, circumstantial evidence, on the other hand, is evidence which proves or tends to prove a fact or facts from which a further fact in dispute may be inferred or an evidentiary conclusion reached (ts 717).
His Honour then elaborated on the nature of a circumstantial case:
In a circumstantial case the guilty participation of the offender is proved in a circumstantial way by the jury putting together an evidentiary jigsaw puzzle and drawing an inference of guilt from the direct evidence, from the facts that it finds proved. In a circumstantial case the jury is required to consider the weight which is to be given to the united force of all of the circumstances considered together. It necessarily calls upon a process of reasoning that involves the drawing of inferences from a combination of facts (ts 718). (emphasis added)
The trial judge referred to the drawing of inferences in a circumstantial case as follows:
And in a circumstantial case it may not matter that one fact or circumstance considered alone does not justify the drawing of an inference of guilt, it being necessary to consider the weight which is to be given to the united force of all the circumstances. In evaluating evidence you decide whether to accept the evidence of a particular fact ... not by considering the evidence directly related to that fact in isolation, but in the light of the whole of the evidence. And you may be justified in drawing an
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inference of guilt from a combination of facts, none of which, when viewed alone, would support such an inference. An inference, I'm sure you'll appreciate, is simply a logical deduction drawn from facts which you find proved. So apart from taking account of the direct evidence from witnesses, you are entitled to draw inferences of fact from facts which you've found established (ts 719). (emphasis added)
82 His Honour emphasised that an inference adverse to the appellant
could not be drawn if there was any other inference, consistent with
innocence, reasonably open on the evidence:It's important, however, to remember in a criminal trial that before an accused person can be found guilty, it is necessary that there be proof of guilt beyond reasonable doubt.
That means that you must be very careful when considering whether you're able to draw an inference from the established facts. You must examine any inference or deduction that you draw. You must see whether it is logical and reasonable. You must ask yourselves whether there are any other explanations that common sense and human experience tell you are not fanciful because an inference of guilt cannot be drawn from the surrounding circumstances unless such circumstances as you find to exist or prevail exclude any reasonable hypothesis consistent with innocence. That is simply another way of saying what I said earlier that the guilt of the accused must be established beyond reasonable doubt and you must entertain such a doubt when there are any other inferences consistent with innocence that are reasonably open. (ts 719). (emphasis added)
83 The trial judge noted that the State's case was circumstantial 'and in
broad terms, it says you can be satisfied on all the evidence that [the victim's] death was a direct consequence of a vicious assault upon her and that the evidence is eloquent of the fact that the perpetrator was [the appellant]' (ts 720) (emphasis added).
84 His Honour told the jury it may think that the critical issue to be
determined was the identity of the person who assaulted the victim. He
then observed:The State says the totality of the evidence - that is the combination of all the facts established by the evidence - is eloquent of the fact that it was [the appellant] (ts 720 - 721). (emphasis added)
85 The trial judge summarised the matters particularly relied on by the
State to prove that the victim's death was a direct consequence of an assault upon her by the appellant:
(a)
The appellant had a lack of regard for the victim and her whereabouts after arriving in Geraldton. This was significant
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because the appellant was in a relationship with her. He did not suggest in his video-recorded interview with police that there had been any significant altercation between them (ts 721).
(b)
The appellant did not attempt to locate the victim's aunt, Nicolette Pearce, who lived close to 5 Tamblyn Street, even though the appellant had informed Mr Minney that the victim had gone to her aunt's house. It would not have been difficult for the appellant to ascertain where Nicolette Pearce lived (ts 721).
(c)
Detective Senior Sergeant McDonald gave evidence that on 24 December 2010 the appellant told him that he walked down Tamblyn Street to a point near a park and gave the victim directions to a friend's house in Bennett Street, being the street in which Nicolette Pearce lived. On the day after the conversation, the police searched the bushland or park and located the victim's body (ts 721 - 722).
(d)
Mr Minney's evidence in relation to the journey from Perth to Geraldton and what occurred when they arrived at 5 Tamblyn Street (ts 722 - 723).
(e)
The evidence of Mr Minney, Mr Farrell and Cassandra (Cassie) Comeagain as to the appellant arriving on foot at 5 Tamblyn Street at about 7.00 am on 18 December 2010, including his arrival from the direction of Broome Street, his physical condition and his statement that he had spent the night in the park (ts 723).
(f)
The evidence of Tonia Comeagain that the appellant had told her he had woken up in the park and had lost his mobile telephone in the park; and her evidence that a short time later she observed him using a black Samsung touch-screen mobile telephone (ts 723).
(g)
The appellant had the victim's mobile telephone in his possession on the day after her disappearance. This was important because it was unlikely the victim would have left the telephone in Mr Minney's vehicle as she appeared to use her telephone frequently and was in a place (Geraldton) where she did not ordinarily reside (ts 724).
(h)
The appellant did not attempt to locate the victim and return her telephone (ts 724).
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(i) The appellant sought out his former de facto partner, Ms McDonald, the day after the victim's disappearance, and returned to Perth with her. This was inconsistent with the appellant expecting to have further contact with the victim (ts 724).
(j) The evidence of Mr Hedley in relation to his DNA analysis of the cellular material recovered from the twigs, the sock and the rear seat of the motor vehicle driven by Mr Minney from Perth to Geraldton (ts 726 - 727).
The trial judge, in the course of that summary, referred to various matters relied on by the State that were contested by the defence.
87 His Honour reiterated it was the State's case that, 'on the totality of the material', the jury could be satisfied beyond reasonable doubt that it was the appellant who assaulted the victim and caused her death (ts 727) (emphasis added). In other words, on the State's case, that was 'the only reasonable inference to be drawn from that material' (ts 727) (emphasis added).
The trial judge devoted a significant part of his summing up to the case advanced on behalf of the appellant:
On behalf of [the appellant], it [is said] that you should accept the account of events given in his recorded interview and that in the circumstances, the only proper verdict would be one of not guilty. As I said to you earlier, if you accepted what he has said in the recorded interview or were unable to reasonably exclude it then the proper verdict would be one of not guilty.
It is said essentially that the police investigation had been blinded by a preliminary and entirely inappropriate assumption that [the appellant] was guilty. It was pointed out that there are obvious reasons why he did not pursue the whereabouts of [the victim] after she left in the morning.
Such matters [are] firstly that he was emotionally hurt because she had, in effect, deserted him when they reached Geraldton. It was said he would not be expected to report her missing, as he believed she was safe at her aunty's house. He was not aware of the aunty's residence; that is he was not aware of where she was or where to locate her. That in his recorded interview, he indicated he contacted several persons whom he thought he could talk to and was precluded from making further inquiry because of animosity towards him from [the victim's family]. He said he examined whether she had been online on Divas Chat. The defence says that it would be entirely consistent with the fact that [the victim] would find it objectionable to be in the vicinity of Tramille and her family, that she would walk off in the circumstances suggested by [the appellant]. Also
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having regard to the fact that [the appellant] would not want an unseemly domestic situation outside the Tamblyn Street property, it's totally understandable that he would not pursue [the victim]. Then it is said on his behalf that there is nothing surprising about him making contact with Tramille McDonald, since she was the mother of his baby daughter and contact with Tramille was a necessary precondition to having contact with the daughter and to having the daughter come to Perth for Christmas.
It was said it's significant that the photographs do not demonstrate any recent injuries to [the appellant's] hands and there is no evidence of blood on his shoes or clothes. In respect of the sock, it is said there's no proof that he ever wore that particular sock that found its way to Geraldton. His DNA was not identified on the rim of the sock and it's said you might conclude that if anyone wore the sock, it was [the victim]. In the police interview … [the appellant] was unable to offer an explanation as to how [the victim's] blood would have been on the sock. In respect to the DNA from the twigs, it is said, having regard to Doctor McDonald's evidence concerning the possibility of secondary transfer, that that and/or associated contamination is a real possibility. In respect to the blood in the car, there is no evidence as to how or when it got there, and there was no evidence of, if one looks at the evidence of Doctor Cooke, there was no evidence of [injuries] other than facial injuries to [the victim].
And on behalf of [the appellant], it is said, firstly, that you should accept this account of events in his recorded interview and that, in any event, you could not be satisfied beyond reasonable doubt on the material that has been placed before you that the only inference reasonably open on that material is that [the appellant] was the person who assaulted [the victim] (ts 727 - 730).
89 His Honour concluded his summing up by emphasising that the
jury's task was to analyse the evidence objectively, to determine from that analysis what facts were established, and to decide whether those facts enabled the jury to conclude that the State had proved beyond reasonable doubt that it was the appellant who assaulted the victim (ts 730). His Honour said the jurors will have been true to their oath or affirmation 'if you proceed, having regard to the matters which I have outlined to you ... to carry out an objective and analytical assessment of the evidence and determine from that whether the State has satisfied you beyond reasonable doubt that it was [the appellant] who assaulted [the victim]' (ts 730).
90 The appellant was represented at the trial by an experienced and
competent criminal defence counsel. He sought, and his Honour gave, a further direction on the defence case (ts 731 - 740). Defence counsel did not, however, complain about the issues raised in ground 1 of the appeal.
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Ground 1: the appellant's submissions
91 Counsel for the appellant submitted that the trial judge was obliged
to give the jury 'directions in accordance with' Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 in relation to the post-offence conduct relied on by the State.
92 It was contended that the State sought to rely on the appellant's
post-offence conduct 'as evidence of consciousness of guilt on behalf of the appellant' and that the State relied, in part, on 'this evidence to prove that it was the appellant who killed [the victim]'.
93 Counsel for the appellant asserted in his supplementary submissions
dated 11 September 2013 that, in directing the jury, his Honour should
have:
a) Identified the evidence of post-offence conduct upon which the State relied; b) Identified the issue in respect of which that evidence was relied upon, namely, that the evidence could be used to identify the appellant as the offender; c) Identified the factual circumstance[s] by which the State contended that the post-offence conduct betrayed a consciousness of guilt; d) Explained to the jury that there may be other reasons, consistent with innocence, for the post-offence conduct apart from a consciousness of guilt. In particular, His Honour should have directed the jury that one reasonable explanation for the post-offence conduct was the appellant's concern that he had assaulted [the victim] on their trip to Geraldton on 17 and 18 December 2010. e) Directed the jury that, unless they were satisfied beyond reasonable doubt that the post-offence conduct could not be explained by anything other than a consciousness of guilt, the evidence of post-offence conduct could not be used for the purpose of identifying the offender.
It was asserted that his Honour's failure to give these directions occasioned a miscarriage of justice.
Ground 1: applicable legal principles
95 Evidence which suggests a consciousness of guilt is admissible as an
implied admission against interest. If the State relies on such evidence in a criminal trial it is open to the accused to offer some explanation,
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consistent with innocence, which may nullify its force. Various categories of evidence suggesting a consciousness of guilt have been recognised in the case law. See Cooper v The Queen [2012] HCA 50; (2012) 87 ALJR 32 [86] - [87] (Heydon J).
96 In Edwards, the High Court distinguished between lies told by an accused which affect only his or her credit and lies told by an accused that are evidence because they constitute implied admissions against interest. Lies will constitute implied admissions if they are told out of a consciousness of guilt; that is, the accused told the lies because of a realisation of guilt and a fear of the truth.
97 An Edwards direction is ordinarily essential if the State relies on a lie told by the accused as evidence of his or her guilt. As Lord Devlin observed in Broadhurst v The Queen [1964] AC 441, 457, there is a natural tendency for a jury to think that, if an accused is lying, it must be because he or she is guilty. The rationale for giving an Edwards direction is the avoidance of a perceptible risk of a miscarriage of justice if the jury were to misuse the lie so as to make a finding of guilt by impermissible reasoning. There is no precise verbal formula for the direction. A trial judge should tailor the direction to the circumstances of the case. See R v Konstandopoulos [1998] 4 VR 381, 388 (Callaway JA, Winneke P & Kenny JA agreeing); Nestorov v The Queen [1999] WASCA 303 [11] (Kennedy J, Ipp J agreeing).
If an Edwards direction is required, the direction must ordinarily encompass the following:
(a) the lie must be precisely identified; (b)
the jury must be told that the lie will not be evidence against the accused unless the lie was deliberate;
(c)
the jury must be reminded that there are many reasons why people tell lies, apart from the realisation of guilt;
(d)
the jury must be told that it cannot use the lie as evidence against the accused if it accepts an explanation for the lie that is consistent with innocence;
(e)
the jury must be told that the lie will not be evidence against the accused unless the lie was told out of a consciousness of guilt (that is, the accused knew that the truth would implicate him or her in
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the offence) and the lie reveals knowledge of the offence charged
or some aspect of it; and
(f) the facts, events and circumstances relied on by the State to indicate that the lie constitutes an admission against interest must be precisely identified. See Edwards (209 - 211); Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316 [42] fn (83) (Gaudron & Gummow JJ); R v Hartwick [2005] VSCA 264; (2006) 14 VR 125 [94], [113] (Charles, Chernov & Nettle JJA); R v Ciantar [2006] VSCA 263; (2006) 16 VR 26 [81] - [85] (Warren CJ, Chernov, Nettle, Neave & Redlich JJA); Martinez v The State of Western Australia [2007] WASCA 143; (2007) 172 A Crim R 389 [275] - [285] (Martin CJ, Steytler P & Miller JA); Hedgeland v The State of Western Australia [2013] WASCA 97 [86] (Buss JA, Martin CJ agreeing); Allami v The State of Western Australia [2013] WASCA 230 [78] (Buss JA, Hall J agreeing).
99 It is legitimate for the State to rely on an accused's post-offence
conduct in support of its case. See Ciantar [44] - [45]; McKey v The Queen [2012] NSWCCA 1 [26] (Latham J, Whealy JA & Hislop J agreeing); NAD v The State of Western Australia [2013] WASCA 2 [71] (Buss JA, McLure P & Mazza JA agreeing).
100 In Wigmore on Evidence (Chadbourn rev 1978), vol 2, § 276(4), the admissibility of post-offence conduct as evidence of consciousness of guilt is discussed:
Flight from justice, and its analogous conduct, have always been deemed indicative of a consciousness of guilt. ...
It is universally conceded today that the fact of an accused's flight, escape from custody, resistance to arrest, concealment, assumption of a false name, and related conduct, are admissible as evidence of consciousness of guilt, and thus of guilt itself. (footnote omitted)
101 Circumstantial evidence is evidence which, if accepted, tends to
prove a fact from which the tribunal of fact may infer the existence of a fact in issue. See Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593 [5] (Gleeson CJ). Circumstantial evidence can prove a fact or facts beyond reasonable doubt only if all other reasonable hypotheses are excluded. See Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207, 211 (Deane, Dawson, Toohey, Gaudron & McHugh JJ).
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In Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573,
Dawson J said:
The learned trial judge gave the customary direction that, where the jury relied upon circumstantial evidence, guilt should not only be a rational inference but should be the only rational inference that could be drawn from the circumstances: see Hodge's Case ((1838) 2 Lewin 227 [168 ER 1136]); Peacock v The King ((1911) 13 CLR 619); Plomp v The Queen ((1963) 110 CLR 234). Whilst a direction of that kind is customarily given in cases turning upon circumstantial evidence, it is no more than an amplification of the rule that the prosecution must prove its case beyond reasonable doubt. In many, if not most, cases involving substantial circumstantial evidence, it will be a helpful direction. In other cases, particularly where the amount of circumstantial evidence involved is slight, a direction in those terms may be confusing rather than helpful. Sometimes such a direction may be necessary to enable the jury to go about their task properly. But there is no invariable rule of practice, let alone rule of law, that the direction should be given in every case involving circumstantial evidence. It will be for the trial judge in the first instance to determine whether it should be given (578).
103 An accused's post-offence conduct is circumstantial evidence. A jury
may accept and act upon evidence of the accused's post-offence conduct, if the conduct constitutes an implied admission against interest, without being satisfied beyond reasonable doubt that the evidence establishes guilt (that is, without being satisfied that there is no other explanation of the post-offence conduct which is reasonably open on the facts), unless the post-offence conduct is the only evidence against the accused or is an indispensable link in the chain of reasoning on which proof of guilt depends. See Edwards (210); Ciantar [45]; Hedgeland [80]; Allami [81]. As Deane, Dawson and Gaudron JJ observed in Edwards:
Although guilt must ultimately be proved beyond all reasonable doubt, an alleged admission constituted by the telling of a lie may be considered together with the other evidence and for that purpose does not have to be proved to any particular standard of proof. It may be considered together with the other evidence which as a whole must establish guilt beyond reasonable doubt if the accused is to be convicted (See Shepherd v The Queen (1990) 170 CLR 573). If the lie said to constitute the admission is the only evidence against the accused or is an indispensable link in a chain of evidence necessary to prove guilt, then the lie and its character as an admission against interest must be proved beyond reasonable doubt before the jury may conclude that the accused is guilty. But ordinarily a lie will form part of the body of evidence to be considered by the jury in reaching their conclusion according to the required standard of proof. The jury do not have to conclude that the accused is guilty beyond reasonable doubt in order to accept that a lie told by him exhibits a consciousness of guilt. They may accept that evidence without applying any particular standard of
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proof and conclude that, when they consider it together with the other
evidence, the accused is or is not guilty beyond reasonable doubt (210).
104 So, ordinarily, an accused's post-offence conduct that constitutes an
implied admission against interest may be considered by the jury together with other evidence (whether direct or circumstantial) without it being necessary for the State to prove beyond reasonable doubt that the post-offence conduct demonstrates a consciousness of guilt, unless the post-offence conduct is the only evidence against the accused or is an indispensable link in the chain of reasoning on which proof of guilt depends. Ordinarily, the accused's post-offence conduct that constitutes an implied admission against interest is merely part of the evidence as a whole which the jury must consider in determining whether the State has proved its case against the accused beyond reasonable doubt.
In the present case, counsel for the appellant relied, in particular, on
R v Nguyen [2001] VSCA 1; (2001) 118 A Crim R 479 and Ciantar.
106 In Nguyen, the appellant was convicted, after a trial, of murder. He was alleged to have shot his stepson with a firearm. The principal issue at the trial was whether the prosecution had proved the appellant had deliberately discharged the firearm with intent to kill or do really serious injury to the victim. The prosecution alleged the appellant deliberately, and with the relevant intent, shot the victim. The appellant, in his evidence, alleged the killing was unintentional and the firearm had discharged accidentally while he was cleaning it. The prosecution relied on the appellant's post-offence conduct. Almost immediately after the shooting, the appellant left the house where the shooting had occurred and disposed of the weapon. It was never recovered. He pretended to the police that an unknown intruder had been responsible for the shooting. He encouraged his wife and stepdaughter to make similar allegations to the police. At the trial, the prosecutor invited the jury to conclude that the appellant's post-offence conduct was itself evidence of his guilt of murder; that it was evidence inconsistent with his claim of accident; and that it was evidence which demonstrated that the appellant had the necessary intent to support the charge of murder.
107 The Court of Appeal of Victoria allowed the appellant's appeal in
Nguyen and ordered a new trial. Winneke P (Chernov JA agreeing) held the appellant had made out his ground of appeal which alleged the trial judge misdirected the jury by 'failing to give to the jury a direction in accordance with Edwards' and 'in failing to direct the jury that there may be reasons for the telling of a lie other than those which might be thought
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to affect the [appellant's] credit, including panic, the desire to escape an unjust accusation, the desire to avoid a consequence extraneous to the offence, the desire to organise the deceased's burial according to ritual, and the cultural and personal factors that led to the [appellant's] distrust of the police' [17]. Winneke P, after describing the circumstances of the case as 'peculiar', said:
Notwithstanding the trial judge's general directions to the jury that they could only use such lies as they found the [appellant] had told to police in assessing the credibility of his evidence, and that they could not jump from lies so found to guilt, it seems to me that there was a real risk in this case that the jury would use the [appellant's] immediate post-offence conduct as probative of his guilt. It was the conduct of the [appellant], immediately after the shooting, in concealing the weapon and thereafter pretending to police that an intruder had shot the deceased, which, because it was capable of being used to prove intent, put the [appellant] at risk in the absence of proper directions. It was this combination of the concealment and pretence which gave the evidence its probative value. It did not lose its probative value, as the judge appears to have thought, simply because the [appellant] thereafter conceded that he was holding the gun when it discharged. If anything, that only accentuated the materiality of the evidence because the issues were narrowed to 'voluntariness' and 'intent' [18].
On the issue of 'voluntariness' and 'intent', the prosecution in Nguyen relied wholly or substantially on the appellant's post-offence conduct.
109 In Ciantar, a motor vehicle driven by the offender was involved in a collision. He fled from the accident scene. The offender was charged with and convicted, after a trial, of culpable driving causing death. The Court of Appeal of Victoria considered whether the offender's flight could be used as evidence of consciousness of guilt of culpable driving causing death or whether the evidence in question was neutral in that it was equally consistent with the hypothesis that the offender was conscious of having committed some lesser offence, for example, failing to render assistance.
Warren CJ, Chernov, Nettle, Neave and Redlich JJA said:
We accept that there may be some circumstances in which post-offence conduct is equally consistent with two or more possible offences or is otherwise intractably neutral. Where that is so, it may not be open, even on the totality of the evidence, to draw an inference that the accused had a consciousness of guilt of some particular conduct at the time that he told lies or performed some act which the prosecution relies upon as constituting post offence conduct. But where such lies or conduct are considered in the context of all of the evidence it is not to be assumed that
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it will usually be so. Indeed, in the scheme of things, it is not likely to be so in many cases (cf Woon v R (1964) 109 CLR 529 at 541-2) [40]. (emphasis added)
111 Later, their Honours developed this reasoning by reference to murder
cases where other evidence (apart from post-offence conduct) implicating the accused in the primary count laid by the prosecution is of greater or lesser strength:
Of course, there will be circumstances in which post-offence conduct is incapable of being probative of guilt of the charged offence as opposed to a lesser alternative or, another count on the presentment where there is a multiple count presentment, or another offence where it is disclosed by the evidence. For example, if a case of murder were presented to a jury on the sole basis that the accused admitted that he killed the deceased unlawfully, but denied murder, and the only evidence of the killing, apart from the admission, was that the accused had fled the killing and initially denied involvement in it, the jury could not properly be satisfied that the accused was guilty of murder. On the limited evidence available, one could not exclude as a reasonable possibility that the accused was guilty of manslaughter or possibly some lesser included offence. And the jury would need to be so instructed.
But in most murder cases the evidence is more extensive than that. Usually, the Crown presents evidence about the relationship if any between the deceased and the accused, the events leading up to the time of death, the place and time and the circumstances of the death, the means of killing and the cause of death, other injuries which may have been inflicted on the deceased and any injuries suffered by the accused in the course of the killing.
Although the post-offence conduct may not be enough in itself to sustain an inference that an accused killed with intent to kill or cause really serious injury, as opposed to some lesser state of mind, such evidence, when combined with evidence of the accused’s words and conduct before and during the killing and forensic evidence may well satisfy the jury beyond reasonable doubt that the accused killed the deceased with murderous intent (see, for example, R v Burrows at 538, [27] per Charles JA). And comparable reasoning is equally applicable in trials for other offences [65] - [67].
112 Their Honours concluded that 'where evidence of consciousness of
guilt, which although by itself is equally consistent with consciousness of guilt of an included offence or another count on the presentment or another offence disclosed by the evidence, is capable in conjunction with other evidence of sustaining an inference of consciousness of guilt of the charged offence, it must be left to the jury to determine whether it demonstrates consciousness of guilt of the charged offence' [72].
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On the issue of directions as to consciousness of guilt, Warren CJ, Chernov, Nettle, Neave and Redlich JJA said:
Trials which concern a one-count presentment with lesser included offences, or a multiple-count presentment or a case where the evidence adduced to prove a particular charge discloses the possible commission of other offences all raise the question of whether the post offence conduct relates to a particular offence charged or to 'other offences'. Accordingly, in such cases the jury may have to be alerted to the fact that, before they can treat the post-offence conduct or lies as proof of guilt of the offence they are then considering, they must be satisfied, having regard to all the evidence, that a consciousness of guilt of such 'other offence' does not provide a possible reasonable explanation for the lies [78]. (original emphasis)
114 In Allami, the appellant was convicted, after a trial, of the attempted murder of his brother. The State's case relied, in part, on the appellant's flight from the scene of the crime and his purchase of a one-way airline ticket from Perth to Brisbane. The appellant's appeal against his conviction was dismissed.
115 I held (Hall J agreeing) in Allami that it was unnecessary, in the circumstances of the case, for the trial judge to direct the jury that the appellant's post-offence conduct may have been attributable to his consciousness of guilt in relation to one or other of the alternative offences alleged against him (namely, grievous bodily harm with intent, contrary to s 294 of the Code, and grievous bodily harm, contrary to s 297(1) of the Code). Such a direction was not required because, relevantly:
(a)
the trial judge directed the jury that it could not conclude from the circumstantial evidence in the case (including the post-offence conduct) alone that the appellant was guilty of attempted murder;
(b)
his Honour directed the jury that it could only draw an inference as to the appellant's guilt of attempted murder from the circumstantial evidence and the direct evidence (including the appellant's confession and admissions to a witness, Mr Elyas Ali) if the only inference open to the jury was that he was guilty;
(c)
the post-offence conduct was not to be evaluated in isolation: it had to be evaluated together with the direct evidence and the other circumstantial evidence; and
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(d) when the post-offence conduct was examined in combination with the direct evidence and the other circumstantial evidence it was plain that the post-offence conduct, viewed in the proper context, was not neutral as between the primary count of attempted murder, on the one hand, and one or both of the alternative offences, on the other [99]. 116 Also, I held (Hall J agreeing) in Allami that, in any event, the Court of Criminal Appeal held in Banks v The Queen [2003] WASCA 198 that a direction, generally of the kind referred to in Ciantar [78], was not required in Banks and that the facts and circumstances of Banks were not relevantly distinguishable from the facts and circumstances of Allami [101].
222 As I have mentioned, in oral submissions the appellant's counsel
submitted that the appellant had suffered a miscarriage of justice because his Honour failed to direct the jury that the appellant's post-offence conduct may have been consistent with the appellant having assaulted Ms Pearce in the car on the trip to Geraldton, rather than being consistent with Ms Pearce's manslaughter. This submission must be rejected. Unlike R v Ciantar, this was not a case where the jury was required to consider alternative verdicts. The appellant was charged with manslaughter and no other offence with respect to Ms Pearce. In other words, it was not alleged that the appellant had committed a different, lesser offence. Even when alternative offences are charged, it does not necessarily follow that the consciousness of guilt in respect of that other offence provides a possible reasonable explanation for the conduct: see Banks v The Queen [2003] WASCA 198 and Allami.
223 Further, it was never suggested on behalf of the appellant at trial that
his post-offence conduct was consistent with the appellant having assaulted Ms Pearce in the car on the way to Geraldton. Such an argument would have been entirely inconsistent with the appellant's case that he did not assault Ms Pearce and, if Ms Pearce was assaulted in the car, it was not by him. His case was that Mr Minney might have been the perpetrator. A direction that the appellant's post-offence conduct may
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have been consistent with the appellant assaulting Ms Pearce would have
been prejudicial to the appellant's case.224 Finally, it must be acknowledged that the appellant's experienced and
competent defence counsel did not seek an Edwards-type direction. This has caused me to pause and carefully reflect upon whether there was, in fact, any miscarriage of justice as a result of the failure to give the direction. I am unable to see any rational forensic reason why a direction was not sought, and none was suggested. I have concluded that a miscarriage of justice has occurred. Leave to appeal in relation to ground 1 should be granted and the ground upheld.
Ground 2
225 Ground 2 alleges that his Honour erred in law in allowing the State
to adduce, pursuant to s 155 of the Criminal Investigation Act 2006 (WA) (the Act), evidence of an alleged admission made by the appellant to Detective Senior Sergeant McDonald on 24 December 2010 in an interview that was not visually recorded, contrary to s 118 of the Act.
Sections 118 and s 155 are in these terms:
118. Admission in serious case inadmissible unless recorded
(1) In this section - admission means an admission made by a suspect to a police officer or a CCC officer, whether the admission is by spoken words or by acts or otherwise;
adult means a person who has reached 18 years of age; child means a person who is under 18 years of age; reasonable excuse, for the absence of an audiovisual recording of
an admission, includes -
(a)
the admission was made when it was not practicable to make an audiovisual recording of it;
(b)
equipment to make an audiovisual recording of the admission could not be obtained while it was reasonable to detain the suspect;
(c)
the suspect did not consent to an audiovisual recording being made of the admission;
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(d)
the equipment used to make an audiovisual recording of the admission malfunctioned.
(2) This section applies in respect of a suspect who is -
(a) a child charged with an indictable offence, irrespective of whether, if an adult were charged with it, it could be dealt with by a court of summary jurisdiction; or (b) an adult charged with an indictable offence that cannot be dealt with by a court of summary jurisdiction. (3) On the trial of the suspect for the offence, evidence of any admission by the suspect is not admissible unless -
(a)
the evidence is an audiovisual recording of the admission; or
(b)
in the absence of an audiovisual recording of the admission -
(i)
the prosecution proves, on the balance of probabilities, that there is a reasonable excuse for the absence; or
(ii) the court decides otherwise under section 155.
(4)
Subsection (3) does not apply to an admission by a person made before there were reasonable grounds to suspect that he or she had committed the offence.
…
155. Inadmissible evidence, court may allow admission
(1)
This section applies if under another section a court may make a decision under this section in relation to evidence that is not admissible in proceedings in the court.
(2)
The court may nevertheless decide to admit the evidence if it is satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.
(3) In making a decision under subsection (2) the court must take into
account -
(a)
any objection to the evidence being admitted by the person against whom the evidence may be given;
(b)
the seriousness of the offence in respect of which the evidence is relevant;
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(c)
the seriousness of any contravention of this Act in obtaining the evidence;
(d)
whether any contravention of this Act in obtaining the evidence -
(i) was intentional or reckless; or (ii)
arose from an honest and reasonable mistake of fact;
(e) the probative value of the evidence; (f) any other matter the court thinks fit.
(4) The probative value of the evidence does not by itself justify its
admission.
The background
227 As I have already described, at 12.05 pm on 24 December 2010, a
meeting took place concerning Ms Pearce's disappearance. In attendance at the meeting were officers of the Major Crime Squad, including Detective Bragg and Detective Senior Sergeant McDonald. Later that day, Detective Senior Sergeant McDonald spoke to the appellant at the Redcliffe house concerning the last time the appellant had seen Ms Pearce.
228 The admissibility of this conversation was first raised in the course
of the trial on 3 September 2012, that is, on the sixth day of the trial. The prosecutor indicated that he proposed calling Detective Senior Sergeant McDonald the following day. He informed his Honour that he intended to lead from Detective Senior Sergeant McDonald evidence of the unrecorded conversation with the appellant on 24 December 2010. The prosecutor alerted his Honour to the fact that it was not visually recorded, but submitted that s 118 of the Act did not apply. This was because, the prosecutor contended, the interview occurred before there were reasonable grounds to suspect that the appellant had unlawfully killed Ms Pearce (ts 527 - 528). Defence counsel told the learned trial judge that he intended to object to the admission of the evidence, saying, in effect, that s 118 of the Act applied and that the interview occurred in breach of that provision. Defence counsel foreshadowed making those submissions the following day, 4 September 2012.
When the proceedings resumed on 4 September 2012, his Honour raised the possibility of a voir dire to decide the issue (ts 534).
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230 The issue was not immediately dealt with that day. Other witnesses
were called, including Detective Bragg. As I have said, Detective Bragg testified that it had been 'floated' at the meeting that the appellant was a potential suspect. After Detective Bragg's evidence, but before Detective Senior Sergeant McDonald was called to testify, and in the absence of the jury, the prosecutor said that as a result of Detective Bragg's testimony he would not press for the admission of the unrecorded conversation. His Honour raised the possibility that if s 118 of the Act applied, the evidence may nevertheless be admissible under s 155. The prosecutor pressed for its admission under that section of the Act. He explained that he had not wished to be understood as having abandoned the application to lead the evidence (ts 628).
231 Defence counsel submitted that the conversation on 24 December
2010 was inadmissible pursuant to s 118 of the Act because it was not recorded by audiovisual means and that his Honour should not allow it to be admitted pursuant to s 155. Defence counsel acknowledged that in the appellant's video record of interview, Detective Senior Sergeant McDonald put the conversation to the appellant, but it was not conceded that the appellant had confirmed it.
232 Neither party sought a voir dire requiring Detective Senior Sergeant
McDonald to give evidence on the issue. It was resolved on the basis of Detective Bragg's evidence and the contents of the videotaped record of interview.
233 On the morning of 5 September 2012, the learned trial judge ruled
that the evidence of the conversation was admissible pursuant to s 155 of the Act. His Honour's reasons were delivered orally. It is apparent from them that he had some difficulty accepting that the conversation should have been recorded. However, proceeding on the basis of the prosecutor's concession that Detective Senior Sergeant McDonald was obliged to record the conversation, his Honour found that the evidence of the conversation was nevertheless admissible. The relevant portion of his Honour's reasons is as follows:
I have difficulty in reaching the conclusion that there were then reasonable grounds to suspect the [appellant] had committed the offence, whatever that offence was. Nevertheless, the State accepts that, prima facie, the conversation was required to be visually recorded.
That, however, is not the end of the matter because it's necessary to have regard to section 155, which enables the court to admit the evidence notwithstanding, if it is satisfied the desirability of admitting it outweighs the undesirability of not doing so.
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In making that determination, the court is required to have regard to the matters set out in subsection 3 of section 155. In that respect, I am mindful of the basis of the [appellant's] objection to the admissibility of the evidence.
The [appellant] is charged with manslaughter, being an extremely serious offence, involving, as it does, the loss of life. The seriousness being reflected in a potential penalty of up to 20 years' imprisonment.
Having regard to what was known to the police at the time of the conversation, and the purpose and nature of the conversation, namely to locate Shannon Pearce, I do not regard the failure to video record the conversation as a serious contravention of section 118.
It was not suggested that there should be a voir dire and, in all the circumstances, I've formed the view, on the material before me, that the contravention was, at worst, reckless. The evidence is, in the context of this case, of significant [probative] consequence.
When the [appellant] was later interviewed in a situation where the interview was video recorded, the earlier conversation was put to him and in substance he appeared generally to acknowledge that it had taken place. Also the fact that shortly after the alleged conversation the police carry out a grid search of the park in searing heat on Christmas Day is eloquent of the fact that the conversation took place.
I'm satisfied that the interests of justice support the admission of the evidence and that in the circumstances the breach of section 118, if such there was, is not too high a price to pay (ts 637 - 638).
As I understand his Honour, he admitted the evidence pursuant to s 155 for the following reasons:
1. The charge was serious. 2.
The contravention of s 118, if there was one, was not a serious contravention.
3. The evidence had significant probative value. 4.
The appellant agreed in the video record of interview that a conversation had taken place.
5.
As to its reliability, it was telling that, shortly after the conversation, Detective Senior Sergeant McDonald gave instructions for a search of the park to be carried out. The implication from this reasoning was that the order for the search on Christmas Day was a result of the appellant telling the police
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on 24 December 2010 that Ms Pearce had walked in the direction
of the park.
The evidence of Detective Senior Sergeant McDonald
235 Following his Honour's ruling, Detective Senior Sergeant McDonald
gave evidence. He testified that he attended a meeting on 24 December 2010 at about midday with other police officers where the disappearance of Ms Pearce was discussed (ts 640).
Following that meeting and later that afternoon he spoke with the appellant. His evidence as to the conversation was as follows:
STANDISH, MR: Detective Senior Sergeant McDonald, when you arrived at 93 Central Avenue, Redcliffe you were in company with Detective Tarryn Jones?---That's right.
And did you then, at that time and at that place, meet with the
[appellant]?---Yes, I did.And did you have a conversation with him at that - at that location at that time?---Yes.
Do you recall what was discussed between yourself and [the appellant]?---Well, I had a conversation over a period of about 10 minutes. I did make notes of that conversation immediately following the conversation.
Did you subsequently make notes?---Yes, I did.
When did you make those notes?---Immediately following the conversation. We were parked on the street outside the house, walked across the road to the house, had the conversation, went back to the car, sat in the car and made notes at that time. So that was within a minute or two of completing the conversation.
All right. And do you have an independent recollection of what was discussed between yourself and [the appellant] at that time?---I have a - a general recollection but I can't recall the specific - specific words that were spoken or exactly what was said, which is the purpose of taking notes at the time.
All right. Do you have those notes with you?---I have a copy of those notes, yes.
Your Honour, might Detective Senior Sergeant McDonald have access to his notes?
WISBEY DCJ: Perhaps, if he says he's got a general - just see how far he goes.
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STANDISH, MR: All right. Yes, well, what - what - what - what's your general recollection about what was said?---I questioned or spoke to the [appellant] in relation to what he knew of Shannon Pearce and whether he was aware that she'd been reported missing. In that conversation, he disclosed that he had travelled to Geraldton with Shannon Pearce and Sean Minney, that he had had a fight with Shannon over going to Kelvin Farrell's house, that he had walked down the road to - near a park at which time he'd given Shannon directions to a friend's house in Bennett Street, that he hadn't seen Shannon since that time and he didn't know where she was.
You said that he said that he'd walked down the road, did he say whether he walked down the road by himself or in company with someone else?---I - I can't recall specifically whether he said he was with Shannon but he - he walked down the road at which time he's indicated he'd given Shannon directions to somewhere else so he didn't - I don't recall specifically whether he said he'd walked down the road with Shannon but he - at that point, near the park is where he'd indicated he'd given her directions to Bennett Street which was some distance away (ts 640 - 641). (emphasis added)
He then testified about what he did on Christmas Day, in these terms:
STANDISH, MR: And did you conduct some further inquiries into the whereabouts of Shannon Pearce on Christmas Day?---Yes, I did.
And did you receive some additional information on that day?---Yes, I was contacted by Carnarvon Detectives in relation to additional information. I returned to work, made further investigations and contacted Geraldton police.
All right. Is it the case that, at about 12.30 or so in the afternoon on Christmas Day, you contacted Geraldton police and - and directed them as to their continuing investigation?---Yes, I - I - I directed them to conduct a search of bushland to the south of Broome Street in Spalding, which is a suburb of Geraldton.
And then at about 1.50 in the afternoon on Christmas Day, were you contacted by a Detective Langer from Geraldton who told you that he had discovered the location of a body?---Yes, I was.
And that was in that bushland area?---Yes, it was.
And at that moment the missing person investigation had been converted into a homicide investigation?---That's correct. Yes (ts 642).
238 The prosecutor then adduced through Detective Senior Sergeant
McDonald the recording of the interview which occurred on 26 December 2010. In that interview, the appellant gave an account of what occurred when he and Ms Pearce arrived at 5 Tamblyn Street:
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Q. All right. So what did she do? A. She just got up and walked off and, like, I waited for her to look back to get eye contact connection to see I could ask her a question (indistinct) could be sorted You know? No, there was no turning back and, yeah, like, I just went and sat back at (indistinct) yeah, didn't want to escalate or make any arguments out of anything, like, chasing her up and down the street and so and so, I just went and sat back out the back and had a few drinks - couple more drinks.
Q. All right. So get to Kelvin's, and you're saying she didn't want to stay. Is that right?
A. Yeah. Q. Where was she going? A. I'm not too sure. I thought that she was going to go out to Broome Street, uh, Bennett Street, sorry. Or maybe go to her cousin's house somewhere (indistinct) not too sure.
Q. All right. So which way did she go about getting to - - - A. Well, from Kelvin's house that's, like, I don't know, four houses until where Broome Street is.
Q. Yeah? A. And, like (indistinct) took her about one and a half hours before I was walked in, like, the back yard of Kelvin's so as she was walking towards Broome Street way I know she turned left - right or whatever, I didn't get to see that far (blue AB 29 - 30).
239 The appellant said that he did not follow Ms Pearce when she walked
off (blue AB 43 - 44). Detective Senior Sergeant McDonald then put to the appellant the conversation that he had with him on Christmas Eve 2010. That exchange was in these terms:
Q. Okay. Do you remember the conversation when we were talking to you on Christmas Eve on Friday at your house? Yesterday [sic] at about 5 o'clock in the afternoon or thereabouts we came to your house and spoke to you with Detective Jones, and we got, um, Shannon's phone from you. You gave us her phone. All right? Do you remember that conversation with me?
A. Yeah. Oh, not, not all the way, but yeah, I remember - - - Q. So you remember talking to me about it? A. Yeah, yeah.
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Q. Do you remember what you told me about Shannon and how - um, the last contact you had with her?
A. Yeah. Q. What was that? A. Oh, I'm not too sure what I said then, but yeah. Can't be too far off, um, in Tamblyn Street there.
Q. Okay. What you said to me was you had an argument. A. Yeah. Q. You walked with her away from Tamblyn Street. A. Oh, yeah. Just - oh, to show her, like - just to, just to show her which way, which way is Bennett Street and which way is thing. But as, as I walked with her, I wasn't walking with her. I was waiting, like I said, I was waiting, like, waiting for, um, like, eye contact so I can, like, give her signals. You know? Could it be sorted out or everything. And, like, as I - like, I didn't go any more further than off the yard. Like, I did walk a little bit, but not that - - -
Q. Well, what you said to me was you walked down to the bush - you
called it a park - with her, and you gave her directions to Bennett Street.
That's what you told me.
A. Yeah. Oh, well, it's, it's only, like, like, strolling distance. Um, um, a mail [sic] flick away.
Q. Well, there is a fair bit of difference between saying, 'I never left the property where the car was,' saying a day earlier, 'I walked down towards the park with her and showed her the directions to Bennett Street.' That's a big difference.
A. Yeah. Q. Now, which is true? A. Well, the truth - well, the truth is I never left, I never left Kelvin's yard. Only, only when I went with, um, my cousins and that. That's the only time I left the yard. I didn't walk, like, off with Shannon. I was, like, just waiting for - to see if she was gonna, like, walk back. Like, as, as she turned and walked that way, I didn't just turn my back on her. I was, like, actually trying to get her to see - well, wait to see if she was gonna, like, look at me, like, eye contact, so I can get eye contact back with her. Like, like instead of me talking and her not listening, I, I would have had a fair idea whether she wanted to listen to me or not. So yeah (blue AB 44 - 45).
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240 It is apparent from this exchange that the appellant accepted that he
had spoken to Detective Senior Sergeant McDonald on 24 December 2010. Further, the appellant recalled that he showed Ms Pearce the way to Bennett Street. This is consistent with Detective Senior Sergeant McDonald's evidence about the conversation on 24 December 2010 to the extent that he said that the appellant told him that he had given Ms Pearce directions to a friend's house in Bennett Street.
241 As to whether the appellant and Ms Pearce walked together from
Kelvin Farrell's house, there can be no contradiction between Detective Senior Sergeant McDonald's evidence and the video record of interview, as Detective Senior Sergeant McDonald said that he could not recall whether the appellant told him that he had walked down the road with Ms Pearce. The material difference between Detective Senior Sergeant McDonald's evidence of the conversation on 24 December 2010 and the appellant's version of events in the video record of interview is that, in the latter, the appellant did not say that he had walked near the park.
242 In cross-examination, Detective Senior Sergeant McDonald said that
in respect of the conversation on 24 December 2010, he did not consider the appellant to be a suspect and that he spoke to him in the context of a missing person investigation (ts 653 - 654). He denied that his intention on 24 December 2010 was to get the appellant to make admissions that could be used against him later on (ts 654).
Although in examination-in-chief Detective Senior Sergeant McDonald said that he was unable to recall whether the appellant told him that he walked off down the road with Ms Pearce, that evidence was adduced by defence counsel in cross-examination in the following exchange:
And I'd suggest to you what he actually said to you in that conversation on the 24th was to the effect, that he never said to you that he walked off down the road with Shannon Pearce or anything of that sort?---No, that's exactly what he did say to me (ts 655).
244 Detective Senior Sergeant McDonald denied the proposition that on
24 December 2010, the appellant told him that he had not left Kelvin
Farrell's yard (ts 662).
Merit of ground 2
245 The appellant submitted that his Honour erred in admitting the
evidence of the conversation of 24 December 2010. He submitted that at the time of the conversation there were reasonable grounds to suspect the
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appellant had committed an offence and that s 118 of the Criminal Investigation Act required any admission to be recorded by audiovisual means, yet Detective Senior Sergeant McDonald, without reasonable excuse, failed to do so.
246 The appellant further submitted that s 155 of the Criminal Investigation Act did not apply because the circumstances did not satisfy the requirement in s 155(2).
The respondent submitted that it was not necessary to resort to s 118 or s 155 because, in the audiovisual interview, the appellant adopted Detective Senior Sergeant McDonald's version of the conversation on 24 December 2010. It was further submitted that, in any event, despite the prosecutor's concession to the contrary, s 118 did not apply because there were no reasonable grounds to suspect that the appellant had unlawfully killed Ms Pearce. Finally, the respondent submitted that, even if s 118 was breached, the evidence was properly admitted pursuant to s 155.
248 It is convenient to deal first with the respondent's submission that in
the video record of interview the appellant adopted Detective Senior
Sergeant McDonald's version of the conversation on 24 December 2010.249 Throughout the video record of interview, it is apparent that the
appellant, when asked a question, frequently responded with the word 'yeah'. Having viewed the recording of the interview (exhibit 16), it is apparent that the appellant does not always use the word 'yeah' in the sense that he adopts as true the question. The word is often used to convey that he understands the question. During the interchange crucial to this submission, set out at [239], it is clear that the appellant's use of the word 'yeah' does not mean that he has adopted the proposition in the question. It is merely his way of conveying his comprehension of the question. Accordingly, I am unable to accept the respondent's submission that the appellant adopted Detective Senior Sergeant McDonald's version of the conversation on 24 December 2010.
250 I now turn to deal with the respondent's submission that s 118 of the
Act did not apply because, despite the prosecutor's concession to the contrary, it is clear on the evidence that on 24 December 2010 there were no reasonable grounds to suspect that the appellant had unlawfully killed Ms Pearce: Criminal Investigation Act s 118(4).
251 It is difficult to see how, on 24 December 2010, there were
reasonable grounds to suspect that the appellant had unlawfully killed
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Ms Pearce. Although the police had, according to Detective Bragg, suspicions about the appellant, there was at that time scant evidence that Ms Pearce was dead and, if she was, there was not much to connect the appellant with the offence. Arguably, the prosecutor's concession was too generous, but, in my opinion, it is too late for the respondent to, in effect, withdraw the concession made at trial. The State, having conducted its case on that basis, should not, save in circumstances where it would be clearly unjust, be relieved of the effect of a deliberately made concession.
252 Thus the question is whether his Honour's decision to admit the
evidence of the conversation on 24 December 2010 pursuant to s 155 of
the Act was correct.253 Section 155 is potentially enlivened where a court decides that
evidence is inadmissible pursuant to s 118: Wright v The State of Western Australia [2010] WASCA 199; (2010) 43 WAR 1 [12] (McLure P, with whom Buss JA agreed) [175] (Blaxell J). The test for admissibility is contained in s 155(2). That requires the court to be satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence. The onus is on the prosecution to satisfy the court: Wright [188] (Blaxell J).
254 The mandatory requirements in s 155(3) must be taken into account
when making a decision under s 155(2), but the weight to be given to those factors is a matter for the court, bearing in mind that the probative value of the evidence does not by itself justify its admission: s 155(4).
255 It was not contended by the appellant that his Honour applied the
wrong test or failed to consider the mandatory requirements contained in s 155(3) or failed to take into account relevant considerations or took into account irrelevant considerations.
Counsel for the appellant contended that his Honour's decision to admit the evidence pursuant to s 155 of the Act was erroneous because:
(a)
the seriousness of the charge militated against the admissibility of the evidence;
(b)
the breach of s 118 was, contrary to his Honour's finding, serious; and
(c) the evidence was unreliable.
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257 I will deal with each of these in turn. The submission that the
seriousness of the charge militated against the admissibility of the evidence cannot be accepted. It is contrary to what was said in Wright [179].
258 As to the contention that the breach of s 118 was serious, his Honour
did not regard the breach as serious because, as his Honour found, the principal purpose of the conversation on 24 December 2010 was to ascertain Ms Pearce's whereabouts.
259 The appellant submitted that his Honour should have found that the
contravention of s 118 was intentional. As neither party sought a voir dire and his Honour had not, at the time he gave his decision, seen Detective Senior Sergeant McDonald give evidence, it was impossible, on the material before him, to have concluded that any breach of s 118 of the Act was intentional. His Honour's finding, in the face of the concession which his Honour found difficult to accept, was that the contravention was, at worst, reckless. That conclusion implies that the conduct of Detective Senior Sergeant McDonald may well have fallen short of recklessness. However the finding is understood, there was no basis for a finding that any contravention was intentional. It was open to his Honour to conclude that any breach of s 118 was not serious.
260 I do not accept the submission that the evidence was unreliable and
thus lacked probative value. It is clear that in the appellant's video record of interview he accepted that he had a conversation with Detective Senior Sergeant McDonald on 24 December 2010. It is also clear from his answers in the video record of interview that he accepted that he showed Ms Pearce the way to Bennett Street, which, as a matter of fact, ran alongside the park. It is telling that the day after the conversation, Detective Senior Sergeant McDonald gave the instruction to search the park. It may be legitimately inferred, at least to a substantial extent, that this decision flowed from the information given to Detective Senior Sergeant McDonald by the appellant in the conversation on 24 December 2010. It is highly unlikely that the search of the bushland on Christmas Day, in hot and trying conditions, simply occurred on a hunch or as a routine part of the investigation. It is much more likely it occurred because of a statement made by the appellant that he had walked down the road 'near a park'.
261 Moreover, although not a factor relied upon by the learned trial
judge, it is of relevance that in the video record of interview the appellant did not deny that he had made the statements attributed to him by
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Detective Senior Sergeant McDonald. When confronted with the statements, he sought to reconcile the two versions put to him by Detective Senior Sergeant McDonald.
262 The evidence of the conversation on 24 December 2010 was
probative because, if it was true, it placed the appellant and Ms Pearce near to the park in which her body was later found at approximately the time when she met her death.
263 For these reasons, I have not been persuaded that his Honour erred in
admitting the evidence of the 24 December 2010 conversation pursuant to
s 155 of the Act. Accordingly, ground 2 fails.
Conclusion and orders
I would give leave to appeal in respect of ground 1 and uphold it. I would dismiss ground 2.
The orders that I would make are as follows:
1. Leave to appeal on ground 1 is granted.
2. The appeal is allowed.
3. The appellant's conviction and sentence are set aside.
4. The appellant is to be retried.
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