Hoy v The Queen
[2002] WASCA 275
•22 OCTOBER 2002
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: HOY & ORS -v- THE QUEEN [2002] WASCA 275
CORAM: ANDERSON J
WHEELER J
MILLER J
HEARD: 13-15 MARCH, 22-25 JULY 2002
DELIVERED : 22 OCTOBER 2002
FILE NO/S: CCA 210 of 2000
CCA 218 of 2000
CCA 223 of 2000
BETWEEN: AMANDA KAYLENE HOY
MARTIN GRAEME COATES
THOMAS NICHOLLS
AppellantsAND
THE QUEEN
Respondent
Catchwords:
Criminal law - Fresh evidence - Principles upon which will be admitted - Whether evidence met test - Turns on own facts
Criminal law - Separate trials - Principles - Accused jointly charged with wilful murder - Prima facie rule that should be tried together - Relevance of out-of-court statements of co-accused - Turns on own facts
Criminal law - Admissibility of evidence of prior inconsistent statement of witness - Whether admissible as exception to rule against admission of collateral
statements - Whether statements went to issue - Whether exception of bias applicable - Whether exception of statements against penal interest applicable
Criminal law - Evidence - Admissibility of off-video interview with accused - Whether reasonable excuse for not video taping conversation - Criminal Code, s 570D(2)(b) - Whether need for McKinney warning - Adequacy of direction given - Appropriateness of reference to perjury on part of police
Criminal law - Evidence - Confession - Voluntariness - Whether unfair to admit - Question of access to lawyer - Question of fatigue - Effect of drugs - Relevance of appearance of accused on video - Turns on own facts
Criminal law - Accomplice direction - Whether need for corroboration warning - Evidence Act, s 50(1) - Adequacy of warning given - Reference to consistency of accomplice's evidence - Whether appropriate
Criminal law - Evidence - Medical evidence - Conflict in expert opinion - Whether jury capable of resolving - Whether rival views of experts adequately put to jury - Turns on own facts
Criminal law - Accomplice direction - No corroboration warning - Treatment of evidence of accomplice - Whether adequate warnings given
Criminal law - Expert evidence - Medical evidence - Conflict in opinion of experts - Whether jury capable of resolving - Turns on own facts
Criminal law - Whether balance in trial Judge's directions - Separation of cases against each accused - Adequacy of summation of defence cases - Whether they should have been put together - Adequacy of direction on inferences - Whether direction on circumstantial evidence required - Errors of fact - Whether such as to constitute miscarriage of justices - Whether comments of trial Judge on facts were emotive - Extent to which comment appropriate - Whether jury invited to speculate - Adequacy of directions on need not to speculate - Comments on evidence of various inferences - Whether adequate - Identification - Whether need for direction - Whether redirection called for in any respect - All turning on own facts
Legislation:
Criminal Code
Evidence Act 1906
Result:
Appeals dismissed
Category: A
Representation:
Counsel:
First-named Appellant : Mr S W O'Sullivan
Second-named Appellant : Ms J G Fordham
Third-named Appellant : Mr D P A Moen (13-15 March);
Mr P J Hogan (22-25 July)
Respondent: Mr S E Stone & Ms M Wells
Solicitors:
First-named Appellant : Sean O'Sullivan
Second-named Appellant : Judith Fordham
Third-named Appellant : Andree Horrigan
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
"B" v The Queen (1992) 175 CLR 599
Bannister v The Queen (1993) 10 WAR 484
Bannon v The Queen (1995) 185 CLR 1
Button v The Queen [2002] WASCA 35
Carr v The Queen (1988) 165 CLR 314
Chamberlain (1983) 72 FLR 1
Chamberlain v The Queen [No 2] (1984) 153 CLR 521
Cleland v The Queen (1982) 151 CLR 1
Craig v The King (1933) 49 CLR 429
Domican v The Queen (1992) 173 CLR 555
Doney v The Queen (1990) 171 CLR 207
Driscoll v The Queen (1977) 137 CLR 517
Edwards v The Queen (1993) 178 CLR 193
Festa v The Queen (2001) 76 ALJR 291
Foo v The Queen [2001] WASCA 406
Gallagher v The Queen (1986) 160 CLR 392
Green v R (1999) 161 ALR 648; [1999] HCA 13
Jacobs v The Queen [2000] WASCA 142
Khan v R [1971] WAR 44
Liberato v The Queen (1985) 159 CLR 507
MacPherson v The Queen (1981) 147 CLR 512
McKinney v The Queen (1991) 171 CLR 468
Mickelberg v The Queen (1989) 167 CLR 259
Mraz v The Queen (1955) 93 CLR 493
Narkle v The Queen (2001) 23 WAR 468
R v Ali (1982) 6 A Crim R 161
R v Beaver (1979) 1 A Crim R 50
R v Callaghan (1993) 70 A Crim R 350
R v Demirok [1976] VR 244
R v Gibb & McKenzie [1983] 2 VR 155
R v Holden (1990) 52 A Crim R 32
R v Hugo & Nasko (2000) 113 A Crim R 484
R v Pollard (1992) 64 A Crim R 393
R v Prashar (1988) 37 A Crim R 70
R v Schmahl [1965] VR 745
R v Storey (1978) 140 CLR 364
R v Tillott (1991) 53 A Crim R 46
R v Zorad (1990) 47 A Crim R 211
Ratten v The Queen (1974) 131 CLR 510
Re Attorney General's Reference (No 1 of 1977) [1979] WAR 45
Rodd v The Queen [2000] WASCA 329
RPS v The Queen (2000) 199 CLR 260
Shepherd v The Queen (1990) 170 CLR 573
The Queen v Chai [2002] HCA 12
Velevski v The Queen (2002) 76 ALJR 402
Webb v Anor v The Queen (1994) 181 CLR 41
Case(s) also cited:
Adam v The Queen [2001] HCA 57
Beamish v R [1962] WAR 85
Brain v Froude (1992) 63 A Crim R 9
Bromley v The Queen (1986) 161 CLR 315
Bunning v Cross (1978) 141 CLR 54
Carter v R (1994) 12 WAR 310
Conway v The Queen [2002] HCA 2
Davies v The Queen (1937) 57 CLR 170
Doggett v The Queen (2001) 75 ALJR 1290
Foo v The Queen [2001] WASCA 406
French v Scarman (1979) 20 SASR 333
Harling v Hall (1997) 94 A Crim R 437
Hobby v R, unreported; CCA SCt of WA; Library No 990013; 22 January 1999
Jackson v The Queen (1962) 108 CLR 591
Kelleher v The Queen (1974) 131 CLR 170
Kelly v The Queen (1995) 12 WAR 405
Lambley v R [2001] WASCA 38
Lawless v The Queen (1979) 142 CLR 659
Leary v The Queen [1975] WAR 133
Longman v R (1989) 168 CLR 79
Mallard v The Queen, unreported; CCA SCt of WA; Library No 960505; 11 September 1996
Markovina v The Queen (No 2) (1977) 19 WAR 119
McDermott v The King (1948) 76 CLR 501
Medcraft v The Queen [1982] WAR 33
Mickelberg v R, unreported; SCt of WA; Library No 990056; 12 February 1999
Monk v The Queen [1999] WASCA 27
Moss v Baines [1974] WAR 7
Natta v Canham (1991) 104 ALR 143
Petersen v Samuels (1979) 20 SASR 474
Pollard (1992) 64 A Crim R 393
Prashar (1998) 37 A Crim R 70
R v Andrews (1992) 60 A Crim R 137
R v Annakin (1988) 37 A Crim R 131
R v B & D (1993) 66 A Crim R 192
R v Baskerville [1916] 2 KB 658
R v Black (1993) 69 A Crim R 248
R v Burnett (1994) 76 A Crim R 148
R v Cookson (1989) 45 A Crim R 121
R v Cosgrove &Hunter (1988) 34 A Crim R 299
R v Crawford &Taunoa (1988) 36 A Crim R 182
R v Darby (1982) 148 CLR 668
R v Dixon & Smith (1992) 62 A Crim R 465
R v Garth (1994) 73 A Crim R 215
R v Heaney & Ors (1992) 61 A Crim R 241
R v Hickey & Anor (1995) 89 A Crim R 554
R v Ireland (1970) 126 CLR 321
R v Kendrick (1997) 2 VR 699
R v Lucas [1981] QB 720
R v Makanjuola [1995] 2 Cr App R 469
R v Masters (1992) 59 A Crim R 445
R v Morris; Ex parte Attorney General (1995) 78 A Crim R 465
R v Nguyen (1992) 60 A Crim R 196
R v Ostojic (1978) 18 SASR 188
R v Owen (1991) 56 A Crim R 279
R v Parker (1990) 47 A Crim R 281
R v Pelham (1995) 82 A Crim R 455
R v Percerep (1992) 65 A Crim R 419
R v Plevac (1995) 84 A Crim R 570
R v Power & Anor (1996) 87 A Crim R 407
R v Reeves (1979) 68 Cr App R 331
R v Robinson (1996) 89 A Crim R 42
R v Romeo & Ors (1987) 25 A Crim R 80
R v Smith (1992) 58 SASR 491
R v Smith (1996) 86 A Crim R 398
R v Swaffield; R v Pavic (1998) 192 CLR 159
R v Thompson [1893] 2 QB 12
R v Towle (1955) 72 WN (NSW) 338
R v Verma (1987) 30 A Crim R 441
R v Wedd (2000) 115 A Crim R 205
R v Zheng (1995) 83 A Crim R 572
Ratten v R (1974) 131 CLR 510
Royall v The Queen (1991) 172 CLR 378
Sell v The Queen (1995) 15 WAR 240
Smith v R (1993) 9 WAR 99
The Queen v Assim (1966) 2 QB 249
The Queen v Connell (No 1) (1992) 8 WAR 518
The Queen v Gibb & Anor [1983] 2 VR 155
The Queen v Lee (1950) 82 CLR 133
The Queen v Oliver (1984) 57 ALR 343
The Queen v Pinkstone [2001] WASC 137
Van Der Meer (1988) 35 A Crim R 232
Wai v The Queen (1995) 15 WAR 404
Webb & Anor v The Queen (1994) 181 CLR 41
Wendo v The Queen [1964] 109 CLR 559
Wilde v The Queen (1988) 164 CLR 365
Winning v The Queen [2002] WASCA 44
Wong v The Queen [2001] WASCA 32
Zorad (1990) 47 A Crim R 211
ANDERSON J: I have read the judgment of Miller J and entirely agree with it. There is nothing I can usefully add. The appeals of each of the appellants should be dismissed.
WHEELER J: I have had the advantage of reading in draft the reasons for decision of the Hon Justice Miller. I am in general agreement with those reasons and, like his Honour, I would dismiss the appeals of each of the appellants. There are some aspects of the appeals which I would approach in a slightly different way from that taken by his Honour, and I think it is desirable that I mention them briefly.
Evidence of Wimbridge and Fillery
It would be fair to say that neither Wimbridge nor Fillery impressed as a particularly creditable witness. Fillery appeared to have difficulty recalling the content of a relatively brief and simple conversation. However, my principal reason for rejecting the grounds of appeal based upon the evidence of these witnesses, is that neither gave evidence which achieved the effect for which the grounds of appeal contended; that is, Wimbridge's evidence, taken at its highest, does not appear to me to be inconsistent with the evidence of Davis, while Fillery's evidence does not contradict that of Cunniffe.
So far as Wimbridge is concerned, his evidence was that Davis spoke to him in "bits and pieces" over a number of days about the events surrounding Clare Garabedian's death. Ninety per cent of the time when he would talk about the case Davis was high on heroin so that Wimbridge described him as being "not on the planet". Wimbridge did not recall the words used by Davis except in two respects. He said that Clare Garabedian needed two shots of heroin "to get off" which was consistent with the evidence given at trial about there being two shots initially. He said that Davis had told him that he had been offered a deal by the police if he "implicated" Coates and Nicholls. Otherwise, the account of events in the motel room related by Wimbridge was, as Wimbridge admitted, a somewhat imperfect impression which Wimbridge gleaned from comments made from time to time by Davis. It was Wimbridge's understanding that Clare Garabedian had had a fight with a girlfriend but Wimbridge was not able to say whether the girlfriend was said to be in the room or not when Ms Garabedian was given the last or third shot of heroin. Wimbridge gleaned that Davis had given Garabedian an additional shot of heroin in order to make it look like she had had an
overdose; this is certainly consistent with the plan which was the subject of Davis' evidence. Davis was said to be worried that only his DNA would be found in the room; Wimbridge understood from this that Coates and Nicholls had not been in the room with him, but it is of course consistent also with Davis being concerned that he had played a role which would mean that more of his DNA was likely to be found or alternatively that any cleaning up had not sufficiently removed his DNA. In my view there is nothing in all of that evidence, which is inconsistent with the evidence of Davis so as to be capable of having an impact on the credit of Davis, particularly having regard to the circumstances in which Wimbridge said the conversations took place.
So far as Ms Fillery was concerned, her evidence was simply that she had at some stage had a conversation with Ms Cunniffe in which Cunniffe had said that she had been paid to be in a hotel room where someone had been given an overdose of heroin. It was clear from her evidence that she was not suggesting that Ms Cunniffe had said that anything as to whether she had actually been in the room at the time. She further said that Ms Cunniffe thought it was amusing that Amanda Hoy had been "stitched up" for the offence. It is to be noted that when she first gave this evidence that it was in terms that Cunniffe was amused that Amanda Hoy had been convicted of it, so that it would appear that there was nothing in the conversation to suggest that Cunniffe was using the words "stitched up" to suggest a conviction obtained wrongfully. Cunniffe did not say that she was amused; rather this was something that Fillery gleaned from her demeanour, and there is no hint as to the cause of the amusement. It seems to me that this evidence is not inconsistent with the evidence of Cunniffe that she was not in the motel room in question. Even if it were, as Miller J has pointed out the effect of such evidence could only be to show that Ms Cunniffe was an unreliable witness, rather than to contradict the evidence of Davis as to the identity of those persons who were in the motel room at the time.
Evidence of Ross
It seems to me desirable briefly to examine the operation of s 21 of the Evidence Act, and the cases of Bannister v The Queen (1993) 10 WAR 484and Narkle v The Queen (2001) 23 WAR 468, since the submissions of counsel demonstrated considerable confusion in relation to these issues.
Bannister can I think be dealt with fairly briefly. Properly understood, it appears to me not to be a "previous inconsistent statement"
case at all, nor is that the way in which the Court of Criminal Appeal in that case approached the issue. In Bannister, the indictment contained five counts of indecent assault and one of sexual penetration without consent. The accused also sought to adduce evidence, to the effect that only six days subsequent to the last alleged offence the complainant had sexually propositioned the accused. The complainant was cross‑examined about that allegation, and denied that any such proposition had been made.
It was not the case that the "statement" made by the complainant during the course of allegedly propositioning the accused, being the words "any hope?" were themselves a statement "relative to the subject matter" of the criminal proceeding, to adopt the words of s 21, and they could not be seen as a statement about the circumstances of the offence and inconsistent with her testimony. Rather, the purpose of adducing evidence of the alleged proposition was, as the Court of Criminal Appeal observed, that it was evidence of a fact which, if accepted by the jury, may have fairly influenced their belief as to the occurrence of the alleged offences. It would have been open to the jury to reason that it was unlikely that a person who had been assaulted by the accused in circumstances described by the complainant would, a mere six days thereafter, have made a sexual proposition to him in a light-hearted manner. The case sheds no light on the question of when it is open to call a witness to contradict testimony given by another witness about a prior statement inconsistent with that witness' testimony about the alleged offence.
In the Narkle case, which was also a case involving an offence of a sexual nature, there had been a report compiled by a doctor to whom the complainant had spoken after the offence in which, inter alia, the doctor had stated that the complainant had told her that the accused had tried to kiss her breasts. The accused was not charged with any offence involving an attempt to kiss the complainant's breasts. In her evidence‑in chief, the complainant did not mention that the appellant had tried to kiss her breasts. She was cross‑examined. The cross‑examination does not reveal a question about whether it was the fact that the accused had tried to kiss her breasts. She was asked however whether she had told either the doctor or the police that this had occurred and she denied doing so, in a manner which plainly indicated that she did not accept that he had in fact tried to kiss her breasts.
I assume, because the answers given by the complainant implicitly contained a denial that there had been any attempt by the accused to kiss her breasts, it was thought by defence counsel that her statement to the
doctor would constitute a previous statement inconsistent with her testimony. He sought therefore to recall the doctor for cross‑examination. The Court of Criminal Appeal noted that, the accused was not charged with any offence involving an attempt to kiss the complainant's breasts, and considered therefore that any statement by her about that question was not "relative to a matter in issue".
What is relative to the "matter in issue" must depend upon the circumstances of each case. I note that in Narkle there was no suggestion, for example, that there were events of a sexual nature about which the complainant had become confused or that there were sexual acts committed by some other person which the complainant had wrongly attributed to the accused. If the case had thrown up issues of that kind, one can see that any statement about acts of a sexual nature which may or may not have occurred might reasonably be considered to be "relative" to the matters in issue. However, in Narkle, the accused's case was simply that no acts of a sexual nature had occurred at any time.
The only other further observation I would make about Narkle is that in that case Kennedy and Pidgeon JJ, in agreeing with the reasons of Murray J, must I think to be taken to have agreed with his Honour's detailed analysis of the relationship between questions of credit and questions going to the issue in cases of a sexual nature. His Honour took the view that the observation, sometimes made in earlier cases, that in cases of a sexual nature the difference between questions going to credit and questions going to the issue was often "reduced to a vanishing point", was wrong in principle as well as in logic. I entirely agree with the observations of Murray J on that point, but would note that because a somewhat different view has on occasions in the past been adopted in relation to questions of credit in sexual cases, cases of that kind may not afford a useful guide to the circumstances in which evidence may be given of a previous inconsistent statement made by a witness.
So far as s 21 of the Evidence Act is concerned, I agree with Murray J that there was simply no foundation laid for reliance upon this section. The objection of the Crown prosecutor during the course of the cross‑examination of Davis drew attention to the need to designate the "particular occasion", and counsel for Nicholls did not do so. In case it be relevant in some future case, however, I would note that it is my view that, had a sufficient foundation been laid, it would have been open to counsel, if Davis had denied saying to Ross that neither Coates nor Nicholls was involved in the murder of Ms Garabedian nor present in the
room where it occurred, to call Ross in order to contradict Davis on that point.
The matter can be tested in this way. It would clearly have been open for Davis, or any other witness purporting to have been present at the time of Ms Garabedian's death, to give evidence that neither Coates nor Nicholls was present at the time or involved in the death. A statement of that kind would plainly be "relative to the subject matter of the proceeding". A statement by Davis of that kind made on some occasion prior to giving evidence would therefore be a "former statement relative to the subject matter of the proceeding". Since the testimony of Davis was to the effect that Coates and Nicholls were both involved in the death of Ms Garabedian in the way that he described, a former statement of that kind would have been "inconsistent with his present testimony".
I accept that, s 21 aside, the making of an out of court statement as to the circumstances of an offence does not itself go to an issue or relevant issue in the trial. At most, if the making of a statement is proved, it goes to the credit of the witness who is alleged to have made such a statement. However, it seems to me that s 21 looks to the question whether the subject matter of the former statement, rather than the fact of it being made, is "relative to the proceeding". It is designed to ensure the admissibility of out of court statements of that kind, for the purpose of casting doubt on the credit of the witness, in the circumstances to which s 21 refers. It is not necessary in my view to put any further gloss upon the section.
Corroboration Warning
Prior to the enactment of the present s 50 of the Evidence Act, the position in relation to the evidence of an accomplice was as follows. Where an accomplice gave evidence, it was the duty of the trial Judge to warn the jury of the danger of convicting upon the uncorroborated evidence of an accomplice. It was the duty of the trial Judge also to explain to the jury what is meant by corroboration and to give a broad indication of the evidence which the jury, if they accepted it, could treat as corroboration. If the warning was not given, the conviction was quashed unless there existed corroboration of such a convincing, cogent and irresistible character that a reasonable jury receiving the proper warning must have come to the same conclusion; Khan v R [1971] WAR 44.
By reason of s 50 of the Evidence Act, that warning is now not required to be given. However, in discussing the effect of the predecessor
to s 50, s 36BE, which was applicable only to sexual assault offences and offences under ch XXII of the Criminal Code, the High Court made the point that a provision of that kind did not affect the duty of the trial Judge to give a warning to a jury where the particular circumstances of the case appeared to require it. As applied in Western Australia, I think that that principle was accurately expressed by Parker J, with whom Steytler and Olsson AUJ agreed, in Foo v The Queen [2001] WASCA 406. At par 30 his Honour said:-
"Notwithstanding the effect of s 50, however, it will usually be essential in this State, in an appropriate case, that a jury receive a clear and emphatic warning from the trial Judge of the potential dangers in acting on the evidence of a witness to convict, which dangers exist because that witness is an accomplice, and which the jury might not appreciate without the warning. That will usually be essential whether or not the evidence of the witness is the sole evidence and whether or not there is corroboration of that evidence. The form of the direction may well be different inter alia by virtue of those matters."
I would add, that although the duty is expressed to apply where there are what might be described as "hidden" dangers in the evidence of an accomplice witness, it may also be the case that even where the dangers inherent in the evidence of an accomplice are apparently obvious, or have been well ventilated at trial, it may nevertheless be appropriate, because of the critical role of that evidence, for the trial Judge to give a warning to the jury in appropriate terms.
In my view, the present is a case in which the dangers of the evidence of the witness Davis were explored in considerable detail during the course of the trial. However, because of the critical role which the evidence of Davis would inevitably play in the jury's deliberations, it seems to me that it was a case in which it was desirable for his Honour to draw attention to that danger and to take the step of warning the jury about it. That, in my view, is what his Honour did. He expressly said:-
"I warn you about Davis, that it is dangerous to rely upon him. It is obviously so. The law regards it as so and I warn you that it is so. It is dangerous because he had quite clearly does he not, a motive for untruthfully implicating other persons? It is dangerous also because of the sort of person he is …"
His Honour then went on to explore in more detail the self‑confessed bad character of Davis which he said, even if Davis were not implicated in the particular crime, "would cause you to hesitate long and scrutinise him and his evidence very carefully before placing reliance upon it". It appears that the appellants are very largely concerned, however, with the failure on his Honour's part to use the term corroboration and his failure to explain the meaning of that term to the jury.
In my view, the enactment of s 50 of the Evidence Act has provided an opportunity to clarify and simplify the form of warning which should be given to jurors, where required in a particular case, without in any way detracting from its force. In particular, it appears to me that it is now not necessary – and in my view it is generally not desirable – for a trial Judge to use the word "corroboration" in explaining these issues to a jury.
Broadly, cases involving the evidence of an accomplice will fall into one of three categories. In the first, the accomplice is plainly uncorroborated. If a warning is given, it can be a simple and direct warning that it is dangerous to convict on the evidence of the witness for reasons which derive from the particular circumstances of the witness in question, and which can be explained to the jury. In another category there will be ample corroboration. In those cases, it would appear to be possible to explain to the jury that there is evidence which, if they accept it, is capable of confirming or supporting the evidence of the accomplice, because of its effect, independently of the accomplice, of implicating the accused in the commission of the offence. Of course, the jury can be warned that to the extent that they do not accept such confirmatory evidence, or to the extent that they form the view that it does not implicate the accused or is not independent of the accomplice, they will be required to scrutinise the evidence of the accomplice with care for the reasons given.
It is in yet another category of case that it appears to me that there may be a danger in placing too much emphasis upon the concept of corroboration and the search for it. In the category of case which is of concern to me, there may be corroborative evidence but it may be evidence which is relatively weak, in the sense that one would not expect a jury to consider it on its own to be sufficient to justify a conviction. The traditional warning explains to the jury that it is dangerous to convict on the uncorroborated evidence of an accused. There is I think a danger that because of that warning, and because perhaps of the technical and somewhat intimidating nature of the term "corroboration", a jury may be misled. There appears to me to be a real risk in this third category of case
that a jury will be diverted into an undue emphasis the issue of whether particular evidence does or does not fall within the definition of "corroboration" and a further risk that, once satisfied that evidence does fall within that category, the jury may mistakenly consider that the danger, because it is expressed to apply only to "uncorroborated" evidence, falls away. The corollary to the proposition that it is dangerous to convict on the uncorroborated evidence of an accomplice, may appear to be that it is safe to convict on the corroborated evidence of an accomplice. As I understand it, however, the latter proposition may or may not follow, depending upon the nature and extent of the corroboration.
For my part, where a warning is to be given, I would think it more useful to separate it into two parts. The first part would warn about the dangers inherent in the evidence of the accomplice, whatever they might be in the particular case, and the need for careful scrutiny of that evidence. The second part would explain that a jury may more readily act upon the evidence of an accomplice where it is supported. It would be pointed out that there are two different sorts of support; a weak form of support which comes from independent evidence which merely tends to confirm aspects of an accomplice's evidence but which may not directly implicate the accused, and a stronger form of support in evidence which independently of the accomplice directly implicates the accused. It seems to me that the jury's task is to look at the evidence as a whole, bearing in mind in each case, that the greater the reliance placed upon the evidence of the accomplice, the greater the need for close attention to the warning which has been given. A discussion of that kind would, I think, focus upon the danger inherent in the evidence of an accomplice, placing it in the context of the evidence as a whole.
It is my view that the discussion of this area essayed by his Honour is largely consistent with what appears to me to be the preferable course. His Honour did tell the jury that they might feel more comfortable about relying on the evidence of Davis if there was evidence independent of him which would support the truth and accuracy of what he said. His Honour further pointed out that there were two types of such evidence; it appears that he referred to evidence which implicated the accused persons in the commission of the offence as evidence of a kind which "may assist in establishing Davis' credentials as a credible witness", while other evidence not implicating the accused he suggested could assist by demonstrating the accuracy and truthfulness of what Davis said at least in certain respects.
As it reads in the transcript, portions of his Honour's direction in relation to this area appear to be somewhat lacking in structure, so that it is not always easy to appreciate the point of the observation. That is particularly the case in relation to his Honour's discussion of the reason that leniency is extended to those offenders who provide co‑operation to the authorities. However, it must be remembered that a direction to a jury is structured in the light of a number of things. They include the apparent comprehension of the jury. It will often be the case that what would appear to be repetitions and hesitancies in a direction are occasioned by a trial Judge's view that one or more members of the jury have not adequately appreciated something put either by him or by counsel, so that there is a need to backtrack and to digress on occasion.
In relation to the particular issue of the policy behind the extension of leniency, and his Honour's reference to the assumption behind that extension of leniency to Davis that he was acting "courageously, honourably and decently", I would agree with Miller J's observation that it was an overstatement of the position, and that it is generally not desirable to labour this point. However, in many cases, and this appears to have been one of them, a co‑offender who has received a lenient sentence and is giving evidence against others will often be cross-examined in a way which suggests that there is something discreditable to the witness, or to the investigating police, witness or both, in the mere fact of his having received leniency. In those circumstances, there is a need for a trial Judge to dispel that impression, if it may have been given, while pointing out the real dangers which may exist in relation to the evidence of such a witness.
Finally, in relation to the question of corroboration or lack thereof, I note that ground 10 of Coates' ground of appeal appears to be based upon the premise that lies told by an accused person cannot constitute corroboration. It was pointed out in Edwards v The Queen (1993) 178 CLR 193at 211 that some lies cannot constitute corroboration. Where the untruthfulness of the relevant statement is sought to be established by reliance on the witness who requires corroboration, reliance upon the lie would amount to the witness corroborating him or herself. However, in other circumstances, lies told by an accused person are capable of affording corroboration to the evidence of an accomplice: Green v R (1999) 161 ALR 648; [1999] HCA 13.
Comment on the Circumstances of Ms Garabedian's Death
While I agree entirely with the observations of Miller J in relation to ground 4(a) of Coates' grounds of appeal, I would add the following
observation. Many offences do involve horrifying or tragic or violent circumstances which must necessarily excite the sympathy or revulsion of jurors. The task of a trial Judge is to ensure that the jury's deliberations are influenced, not by such emotions, but by a careful examination of the facts and application of the law to those facts. Particularly in cases where the facts are extreme, it is possible for the relevant legal principles to be viewed as remote, or inhuman, or out of touch with ordinary sensibilities. While it is neither necessary nor desirable in every case to do so, there may well be occasions on which it is positively desirable for a trial Judge to make brief comment which demonstrates that he or she is not unmoved by the relevant circumstances. Acknowledging such factors, and urging the jury, for reasons which are carefully explained, to move beyond them, is in my view at least as likely to facilitate a dispassionate analysis by the jury as a direction which pretends such issues do not exist.
MILLER J: The appellants were jointly charged on an indictment which alleged that on 23 August 1998 at Rivervale they wilfully murdered Clare Garabedian. They were tried before a Judge and jury in the Supreme Court at Perth between 1 August and 21 September 2000 and were each convicted by the jury of the crime of wilful murder.
Each of the appellants appeals against the conviction. There are a multiplicity of grounds of appeal, a number of which are common to each appellant. The appellant Hoy raises 14 grounds of appeal, the appellant Coates 18 grounds and the appellant Nicholls 16 grounds. Many of these grounds are subdivided into further grounds. Some grounds relate to admissibility of evidence, but the bulk of the grounds common to the appellants challenge the content of the learned trial Judge's charge to the jury.
Counsel for the appellants have clearly gone through the learned trial Judge's charge to the jury with a fine tooth comb and raised every conceivable objection to the content of that charge. This approach has been consistently criticised and condemned in courts of appeal. In R v Beaver (1979) 1 A Crim R 50 (at 53) Demack J referred to a line of Queensland cases to this effect:
"The appeal against conviction contains nine specific grounds which attack the summing up. Four of these grounds involve the use of the figurative magnifying glass. Members of this Court have repeatedly condemned this process, see Deen [1964] QdR 569 at pp 572, 584; Shearsmith [1967] QdR 576 at pp 583-584, 590-591; Ives [1973] QdR 128 at pp 134-135; and also the
unreported decision of Watkins (unreported, CA No 84 of 1978). It is necessary to keep in mind the principle referred to in Ives at p 133 where the following quotation from a judgment of the Court of Criminal Appeal in Stoddart (1909) 2 Cr App R 217 at p 246 appears:
'This Court does not sit to consider whether this or that phrase was the best that might have been chosen, or whether a direction which has been attacked might have been fuller or more conveniently expressed, or whether other topics which might have been dealt with on other occasions should be introduced. This Court sits here to administer justice and to deal with valid objections to matters which may have led to a miscarriage of justice. Its work would become well‑nigh impossible if it is to be supposed that, regardless of their real merits or of their effect upon the result, objections are to be raised and argued at great length which were never suggested at the trial and which are only the result of criticism directed to discover some possible ground for argument.' "
Save that many of the grounds relied on in this appeal were articulated at the conclusion of the Judge's charge to the jury, the observations of the Court of Criminal Appeal in Stoddart are of particular application to the present appeal.
The learned trial Judge's charge commenced at approximately 2 pm on 18 September and concluded at approximately 10 am on 20 September. In all, it took the learned trial Judge two days to give the directions he thought appropriate to the jury. It was by any account a challenging task, but the learned trial Judge was a very experienced Judge of this Court, particularly in the area of criminal law. At the conclusion of the charge to the jury, his Honour was urged by counsel for each of the appellants to redirect the jury in many different respects. It took approximately 1‑1/2 hours to deal with the applications made for redirection. His Honour declined to redirect the jury in any respect.
It is important to restate what is required in a Judge's charge to a jury. In R v Zorad (1990) 47 A Crim R 211 the Court of Criminal Appeal of New South Wales (Hunt, Enderby and Sharpe JJ) said (at 225):
"A summing up should, in every case, not only include directions as to the ingredients of the offence which the Crown
has to establish and an explanation of how the relevant law may be applied to the facts of the particular case, but it should also include a collected resume of the evidence which relates to each of those ingredients and a brief outline of the arguments which have been put in relation to that evidence: Holford v Melbourne Tramway & Omnibus Co Ltd [1909] VLR 497 at 522‑523: Mowlds v Fergusson (1939) 40 SR (NSW) 311 at 323 and Alford v Magee (1952) 85 CLR 437 at 466. This is a rule which appears increasingly to be ignored by trial judges. It is not a compliance with that rule simply to read the relevant part of the section to the jury and then to read out the evidence which has been given chronologically, starting with the first witness and going through the evidence in chief, the cross‑examination and then re‑examination of each witness before turning to the next witness and so on. The idea of a summing up is to present for the jury the issues of fact which they have to determine."
It is of significance that the Court in Zorad stressed the need in the summing up to explain to the jury how the relevant law may be applied to the facts of a particular case and to outline the evidence as it relates to each of the ingredients of the offence alleged: it is neither necessary or desirable for a trial Judge to read to the jury the evidence which has been given chronologically.
In R v Tillott (1991) 53 A Crim R 46, the Court of Criminal Appeal of New South Wales (Gleeson CJ, Samuels JA and Hunt J) (at 51) pointed out the need for a trial Judge to collect the evidence relating to each of the matters in issue in the trial, together with an outline of the arguments that had been put in relation to that evidence. Their Honours said:
"This Court has said on many occasions that that is what a summing up should contain: see, eg Zorad (1990) 19 NSWLR 91 at 105; 47 A Crim R 211 at 225.
The judge simply took each witness in the order in which he or she had given evidence and referred briefly to that evidence. He apologised to the jury for being tedious, but told them that he was required to do it. It needs to be said yet again that a trial judge is not required to do that. He or she does not comply with the rule that a summing up must present for the jury the issues of fact which they have to determine simply by reminding them of the evidence which has been given in that way."
In the present case the learned trial Judge approached his charge to the jury from exactly the viewpoint expressed in each of Zorad and Tillott, relating the evidence to the relevant law and at the same time outlining the arguments put in relation to that evidence.
Observations in relation to the obligation of the trial Judge in charging the jury to balance the cases for the prosecution and the defence are contained in "B" v The Queen (1992) 175 CLR 599 where Brennan J (at 605) made these observations:
"A trial judge has a broad discretion in commenting on the facts and in choosing the strength of the language employed in commenting on the facts, but the comment must stop short of overawing the jury. It must exhibit a judicial balance so that the jury is not deprived 'of an adequate opportunity of understanding and giving effect to the defence and the matters relied upon in support of the defence'."
Guidance in relation to the obligations of a trial Judge in addressing matters of fact and the rival contentions of the parties is contained in R v Ali (1982) 6 A Crim R 161. There, Street CJ (at 164 ‑ 165) made it clear that there are limits in both regards. His Honour said:
"… it is to be borne in mind that a trial judge, when summing up, does not bear the responsibility of analysing all of the conflicts and inconsistencies in the evidence adduced during the course of the trial. The nature of his duty has already been canvassed in a number of authorities, and there is no occasion to discuss the principles in this regard. The trial judge will normally direct his attention in what has become a conventional sequence to matters of law and then any particular matters of fact, assisting the jury by such discussion as is necessary to enable the jury to relate the relevant principles of law to the matters of fact falling for their determination.
…
It is frequently said that a summing up must present a balanced account of the conflicting cases. But when one case is strong and the other is weak it does not follow that a balanced summing up will be achieved by under‑weighting the strong case and over‑weighting the weak case. If one case is strong and the other is weak, then a balanced account inevitably will reflect the strength of the one and the weakness of the other."
Nagle CJ at CL added (at 167 ‑ 169):
"No mere reading of the transcript and the summing up can ever place this Court in a situation where it is able to discover the atmosphere, the nuances, and the full reality of the trial. Of this the learned author of Chitty's Archbold (Book 1, 11th edition, 400, 1862) says:
'… to examine a summing up, sentence by sentence, in search for a fault, is not the right way to see whether the judge put the case to the jury fairly and adequately.'
More importantly, he comments in this fashion:
'So much depends on what counsel said in their addresses; upon incidents in the course of the trial, the significance of which at the time, and their apparent impression upon the jury, the transcript cannot reveal. So much, too, depends upon the judge's view of what guidance the particular jury should have in the particular case; upon how far he may think it unnecessary to go over matters on which counsel addressed; or, on the other hand, on how far he may think he should bring into sharper focus matters which counsel blurred. And much depends on how far he may think it desirable, after advocacy is spent, to redress the balance.'
…
Any summing up must be considered in the context and as a part of the whole proceedings; and it is essential that it be viewed in the background of the addresses of counsel.
…
In Davies and Cody (No 2) [1937] VLR 226 at p 236, the presiding Chief Justice in that court, Mann CJ said:
'It is an easy matter for the Court of appeal to revise a charge, to think out at leisure phrases which would be better and more pointed than those actually used, and to stress evidence the importance of which the trial Judge, but not the appellate tribunal, knows has been put forcibly to the jury by counsel. In Immer and Davis (1917) 13 Cr App R 22, a Court of Criminal Appeal constituted of five Judges
considered a case where it was said the defence had not been put fully or adequately before the jury and held that a summing up is sufficient if it is not unfair to the accused and if points are not withheld which it is reasonable to suppose are not already properly before the jury. In the course of the judgment the words of Lord Alverstone LCJ in Stoddart (1909) 2 Cr App R 216, at p 246, citing the words of Brett MR in Abrath v North Eastern Railway Company [1883] 11 QBD 440, at p 453, were cited with approval. The words are - "It is no misdirection not to tell the jury everything which might have been told them." … "Every summing up must be regarded in the light of the conduct of the trial, and the questions which have been raised by counsel for the prosecution and for the defence respectively. This Court does not sit to consider whether this or that phrase is the best that might have been chosen." … but "to deal with valid objections to matters which may have led to a miscarriage of justice".'
…
A judge is entitled to indicate to a jury his view of the facts, so long as he makes that clear. As long ago as 1883, Sir James Fitzjames Stephen in his A History of the Criminal Law of England, Vol 1, said of a judge's summing up at p 455:
'The mere effort to see what is essential to a story, in what order the important events happened, and in what relation they stand to each other must of necessity point to a conclusion. The act of stating for the jury the questions which they have to answer and of stating the evidence bearing on those questions and showing in what respects it is important generally goes a considerable way towards suggesting an answer to them, and if a judge does not do as much at least as this he does almost nothing.' "
In R v Callaghan (1993) 70 A Crim R 350 the Court of Appeal of Queensland also stressed that a trial Judge is not obliged to refer to all the evidence in his charge to the jury. In The Queen v Chai [2002] HCA 12, Gleeson CJ, Gummow, Kirby, Hayne and Callinan JJ at [18] gave guidance as to what is required by way of directions as to the law in a trial Judge's charge to a jury:
"… two matters need to be kept in mind. First, it is not the function of a trial judge to expound to the jury principles of law going beyond those which the jurors need to understand to resolve the issues that arise for decision in the case. Secondly, the law should be explained to the jury in a manner which relates it to the facts of the particular case and the issues to be decided. The judge's task was not to compose an essay on the topic of accessorial liability for manslaughter. It was to explain to the jurors so much of the law as they needed to know in order to decide the issues that arose from the charges, the evidence, the case for the prosecution and the defence case."
The primary question in this appeal is whether, in the course of a very full and lengthy charge to the jury, the learned trial Judge sufficiently directed the jury as to:
(a)the ingredients of the offence alleged;
(b)how the relevant law might be applied to the facts of the case;
(c)a collected resume of the evidence relating to each of the ingredients of the offence;
(d)a brief outline of the arguments which had been put in relation to that evidence.
There are other independent grounds of appeal which deal with rulings on the question of separate trials and the admissibility of evidence, but the bulk of the combined grounds of appeal of the appellants go to the content of the learned trial Judge's charge to the jury.
On behalf of each of the appellants it is contended that the learned trial Judge made numerous errors of law and of fact in his summing up. Reliance is placed by at least one of the appellants on the oft‑quoted passage of Fullagar J in Mraz v The Queen (1955) 93 CLR 493 at 514, a judgment generally regarded as authoritative on the meaning of the proviso to s 689(1) of the Criminal Code. The provision there under consideration was s 6(1) of the Criminal Appeal Act 1912 (NSW) but the provision was that commonly found in statutes dealing with criminal appeals and to the same effect as that contained within s 689(1) of the Code. Fullagar J there said:
"It is very well established that the proviso to s 6(1) does not mean that a convicted person … must show that he ought not to have been convicted of anything. It ought to be read, and it has
in fact always been read, in the light of the long tradition of the English criminal law that every accused person is entitled to a trial in which the relevant law is correctly explained to the jury and the rules of procedure and evidence are strictly followed. If there is any failure in any of these respects, and the appellant may thereby have lost a chance which was fairly open to him of being acquitted, there is, in the eye of the law, a miscarriage of justice. Justice has miscarried in such cases, because the appellant has not had what the law says that he shall have, and justice is justice according to law. It is for the Crown to make it clear that there is no real possibility that justice has miscarried."
In Festa v The Queen (2001) 76 ALJR 291, McHugh J considered this passage in considerable detail. His Honour concluded (at [120]) that what had been said by Barwick CJ in Driscoll v The Queen (1977) 137 CLR 517 at 524 ‑ 525 and before that in R v Storey (1978) 140 CLR 364 at 376, contained the correct principles to be applied to the interpretation of the proviso. In the first of those cases Barwick CJ said:
"It is noticeable that the proviso to s 6(1) speaks in terms of 'substantial miscarriage of justice'. The word 'substantial' in this connexion denies, as it seems to me, the proposition that of necessity the existence of any of the enumerated circumstances in the subsection amounts to a miscarriage of justice. No doubt the oft quoted passage from the reasons for judgment of Fullagar J in [Mraz] rightly emphasises that it is for the Crown to satisfy the court that occasion exists for resort to the proviso: but that passage ought not be read as saying that every departure in the course of a trial from compliance with the relevant law or rule of procedure results of necessity in a miscarriage of justice. Indeed, in my opinion, the very terms of s 6(1) and its counterparts would seem to deny that proposition. The important words, in my opinion, in the passage from the judgment of Fullagar J in that decision and at that page are 'may thereby have lost a chance which was fairly open to him of being acquitted'. Of course, if the Court of Criminal Appeal on its review of the facts and circumstances of the case concludes that before a jury, properly directed, the appellant can be said fairly or reasonably to have had a chance of acquittal, it will not be warranted in concluding that there was no miscarriage of justice.
It is for the court itself to be affirmatively satisfied in this respect, and for this purpose the court will consider for itself the evidence and the inferences properly available therefrom."
In Festa v The Queen, McHugh J (at [121] ‑ [122]) added these observations:
"[121] The question whether a jury, acting reasonably, would inevitably have convicted an accused ultimately falls to be determined by the relevant court according to its assessment of the facts of the case. The prevalence of dissenting views in cases dealing with the application of the proviso illustrates the largely subjective nature of the inquiry, resting as it does on factors such as the error alleged, the relative strength of the prosecution and defence cases and the court's characterisation of the hypothetical jury, 'acting reasonably' and properly directed. As Brennan, Dawson and Toohey JJ stated in Wilde:
'In the end no mechanical approach can be adopted and each case must be determined upon its own circumstances.'
[122] But one important development has occurred since this Court decided Mraz, Storey, Driscoll and Wilde. Courts of criminal appeal are now required to examine and analyse the evidence in criminal trials to a much greater extent than previously. This Court has interpreted the 'miscarriage of justice' ground of appeal as entitling a court of criminal appeal to examine the whole of the evidence and form its own opinion as to whether there is a reasonable doubt as to the accused's guilt. Even 30 years ago, such an approach would not have been contemplated."
Similar observations to those of McHugh J were made in Festa v The Queen by Hayne J (at [228] ‑ [229]). Other members of the Court determined the appeal on the basis that notwithstanding the error of the trial Judge in his directions to the jury concerning identification evidence, there was no substantial miscarriage of justice within the meaning of s 668(e)(1)A of the Criminal Code (Queensland). I have referred to the case in some detail because it is clear authority for the proposition that not every departure in the course of a trial from compliance with the relevant law or rule of procedure will result of necessity in a miscarriage of justice. That principle is of primary importance in considering the learned trial
Judge's charge to the jury and the challenges to it that have been made in this appeal.
Fresh evidence
Evidence of Wimbridge
The appellant Coates was given leave to substitute fresh grounds of appeal at the hearing. The last of the 18 substituted grounds of appeal was in the following terms:
"18.As a result of fresh evidence discovered since the trial in this matter, which the Appellant could not have discovered with reasonable diligence before his trial, giving rise to at least a significant possibility that the jury would have acquitted the Appellant, the jury's verdict is unsafe or unsatisfactory and has therefore given rise to a substantial miscarriage of justice.
PARTICULARS
The appellant is in a position to call a new witness to give evidence to the effect that Davis, the principal crown witness and alleged accomplice, has said that the appellant and Nicholls did not enter the room where they were said by Davis to have caused the death of the deceased, and that he gave untrue evidence in this regard implicating the appellant to secure a lighter sentence and a transfer to Queensland."
On 26 February 2002 Anderson J gave leave to the appellant Coates to issue a subpoena requiring Ronald Patrick Wimbridge to appear before this Court and give evidence on the first day of the hearing of the appeal. Leave was also given to the Crown to issue a subpoena requiring Adam John Davis to testify by video link on the same day.
Before referring to the evidence given by these witnesses, it is appropriate to summarise the prosecution case against the three appellants. It was a case entirely reliant upon the evidence of the witness Davis, who was an accomplice. The learned trial Judge stressed in his charge to the jury that unless they were satisfied beyond reasonable doubt of the truth of the evidence of Davis (with all the appropriate warnings in relation to that evidence), none of the appellants could be convicted.
The evidence of Davis implicated each of the appellants in the alleged wilful murder of Ms Garabedian. It was only he who directly implicated each one of them. In relation to the appellants Hoy and Coates, he testified that they had participated in a process by which he was urged, encouraged, engaged or counselled to locate and kill Ms Garabedian by administering to her, or ensuring that she took a "hot shot" of heroin.
The appellant Hoy was said to have provided Davis with a mobile telephone so that Ms Garabedian could be contacted and in the process of being contacted, the parties could keep in touch. It was said that she also provided Davis with a motor vehicle and with money to pay for the services of Ms Garabedian, who was a prostitute. According to Davis, his job was to lure her to a motel room where she was to be given the hot shot. Hoy was alleged to have guided Davis to Garabedian and helped in the process of identifying her to him.
Coates was alleged to have participated in the process of causing Ms Garabedian's death by counselling Davis to kill her and by providing him with the heroin which was to constitute the hot shot. Further, he was alleged to have been present in the room at the motel when the alleged hot shot was given. According to Davis, he provided heroin in a syringe when a request was made by Davis for more of the drug to administer to Ms Garabedian. Davis also testified that Coates had participated in a physical attack upon Ms Garabedian, including choking her around the throat, shaking her head and putting his hand over her mouth.
Davis testified that the appellant Nicholls was made aware of the plan to seize Ms Garabedian and take her to a motel where the hot shot was to be administered. He was alleged to have driven Coates to the motel in the early hours of the morning when the offence allegedly occurred. Davis also testified that Nicholls had telephoned him to ask whether Ms Garabedian had been killed. He further claimed that Nicholls had come into the motel room with a syringe loaded with heroin and had assisted to restrain Ms Garabedian whilst she was struggling against Coates. Nicholls was alleged to have also held a pillow over the face of Ms Garabedian.
The evidence of Davis was thus of primary importance relation to the role played by each appellant in the wilful murder alleged. Central to his evidence was the contention that both Coates and Nicholls were present in the motel room when heroin was administered to Ms Garabedian.
The evidence of Wimbridge before this Court on 13 March 2002 established that he was a sentenced prisoner at Casuarina Prison when he met Coates some time in the year 2000. Presently he is at Karnet Prison Farm, where he recently spoke with Coates regarding the wilful murder trial. Coates asked him to speak to his lawyer, which he did. The information which he gave to the lawyer and which he testified to before this Court was that he had met Davis at Casuarina prison in October‑November 1999. He claimed that Davis told him that he had been in a room with "Clare" when Clare and a girlfriend had fought, after which he (Davis) had given Clare a third and final shot of heroin. Wimbridge contended that Davis had told him that he had been offered a sentence of 15 years if he implicated Coates and Nicholls in the events leading to Ms Garabedian's death. However, Wimbridge said it "seemed", from what Davis was saying, that Coates and Nicholls were not present.
The evidence of Wimbridge was unsatisfactory. At the end of the day, the furthest he was prepared to go was to say that Davis had told him he did not "think" Coates and Nicholls were in the room where Ms Garabedian was injected with heroin. When cross‑examined, he admitted to a lengthy record of criminal convictions, having been repeatedly before the courts every year since 1970 and largely for offences of dishonesty. In the years between 1970 and 2002 he had spent seven or eight years in gaol.
Davis gave evidence before the Court by video link on 14 March 2002. He testified that he had met Wimbridge in Casuarina Prison some time in 1999, but that he had entered into no discussions with him about this case. He said "not about the case itself, only the people involved … my co‑accused". When cross‑examined Davis was firm that he had never spoken about the case with Wimbridge and that he did not know him well enough to confide in him in any event. He was asked whether Wimbridge had used the words "why are you giving evidence against them when they weren't in the room", but said that he (Wimbridge) had not asked that question at all. He added that he had never spoken "about the whole situation with him at all - at all".
The following passage from the cross‑examination of Davis sums up his response to what was being put to him:
"FORDHAM, MS: Mr Davis, do you believe that you have to continue cooperating by way of giving evidence consistent with your evidence at trial, otherwise you might get resentenced. Is that what you think? --- No. what I believe is that I would've
gave evidence anyway because it's the right thing to do. That's what I believe.
Did you tell Mr Wimbridge that on the evening in question, when Clare Garabedian died, that she was unconscious after a fight with her girlfriend? --- No, I never had no conversation with Wimbridge about it, about anything.
And that you couldn't revive her so you gave her another shot. Did you tell him that? --- No."
At the conclusion of the evidence of both Wimbridge and Davis, I reached the firm conclusion that no credence could be placed upon the evidence of Wimbridge. He was, in every respect, an unconvincing witness, and quite frankly, I considered him to be untruthful in relation to the assertions he made about Davis speaking with him about the case. In any event, the end result of Wimbridge's evidence was no more than that Davis had told him that he had been offered a 15 year minimum sentence for implicating Coates and Nicholls. Although it had apparently been anticipated by counsel for Coates that Wimbridge would say that Davis told him Coates and Nicholls were not in the room on the night in question, Wimbridge said no such thing. He positively stated that Davis had never told him that they were in the room or not in the room. I accept the evidence of Davis that he did not speak with Wimbridge about the matter.
Leaving aside the question whether Wimbridge's evidence raises a collateral issue and would therefore be inadmissible in any event, the fact remains that the evidence, such as it is, could not possibly be regarded as evidence, the unavailability of which at the hearing resulted in a miscarriage of justice: Gallagher v The Queen (1986) 160 CLR 392. The "fresh evidence", if it can be categorised as such, was not such that there was a significant possibility that the jury, acting reasonably, would have acquitted the accused, or any one of them, of the charge if that evidence had been before it.
I have already pointed out that the evidence of Wimbridge was lacking in credibility. It cannot be said, on any view of it, to have had such cogency and plausibility that in combination with evidence already given at trial, the result in the minds of reasonable (jurors) would be affected: see Craig v The King (1933) 49 CLR 429 at 439. In my view, the ground of appeal raised by Coates in relation to the so‑called fresh evidence of Wimbridge must fail.
Evidence of Fillery
At the adjourned hearing of the appeal counsel for Hoy sought leave to add a fifteenth ground of appeal in the following terms:
"15.That in the view of the evidence to be given by JOANNE NICOLE FILLERY to this honourable court and to the extent that there was evidence to the contrary given at trial the verdict of the jury is unsafe and a new trial should be ordered."
Accompanying the application for leave to amend was an affidavit of counsel for Hoy, to which was annexed a statement said to have been made by Joanne Nicole Fillery on 26 July 2001.
The Court gave counsel leave to adduce evidence from Ms Fillery without determining whether or not leave would be given to allow the amendment. It indicated that a decision on the question of amendment would be made after the evidence had been heard.
Ms Fillery was called on 22 July 2002 and testified that she is a serving prisoner at Bandyup Women's Prison. It seemed in fact that she was a prisoner on remand awaiting sentence for offences of stealing and fraud, to be dealt with on or about 24 July 2002. She testified that she was in Bandyup Women's Prison in July 2001 awaiting sentence for the offence of attempted extortion. At that time she gave a statement to a private investigator which appears to be the statement which was annexed to the affidavit of counsel for Hoy.
Ms Fillery was asked whether she knew a person named Christine Cunniffe and she replied that she did. She was asked whether there was an occasion when Christine Cunniffe spoke about matters concerned with the subject matter of the appeal. She said there was and identified the time as November 2000 and the location as a flat in Herdsman Parade, Glendalough. The flat was said to have been that of Patrick Toovey. Others who were present at the time included Toovey, Michael Horvath and an unnamed woman. When asked what Ms Cunniffe had said in relation to the matters in issue Ms Fillery said:
"The conversation was general to start with and then Christine had said - said that she had been in a hotel room, paid to be in a hotel room, where I think - I'm not 100 per cent sure but I think it was her girlfriend had been given an overdose or a lethal shot, hot‑shot.
Anything else that she said about that? --- She thought it was, sort of, amusing at the time that Amanda Hoy had been convicted of it and she thought it - the words she actually used at the time was 'stitched up'.
Who was stitched up? --- Amanda Hoy was stitched up for it.
For what? --- For the death of the person they were talking about."
It is to be noted that when Ms Fillery endeavoured to relate the words used by Ms Cunniffe, she hesitated over the following words:
"… said that she had been in a hotel room, paid to be in a hotel room, where I think …"
In the statement said to have been made by Ms Cunniffe on 26 July 2001 which was annexed to the affidavit of counsel for Hoy, Ms Fillery had said that Ms Cunniffe had told her that she "had been paid to be in a motel room when another girl got a hot‑shot and died".
Counsel for the Crown sought and was granted an adjournment for the purpose of considering whether or not he wished to cross‑examine Ms Fillery. On 24 July Ms Fillery was recalled to the Court and cross‑examined. She was first asked about her record of convictions. It was revealed that she had convictions for street prostitution, giving a false name to police, receiving a driver's licence, breach of bail, fraud, stealing and attempted extortion. The offence of attempted extortion had been dealt with in the District Court at Perth some time last year and Ms Fillery had been put on an intensive supervision order. The circumstances of the offence as outlined by counsel for the Crown were that Ms Fillery had had sexual relations with a man, following which an accomplice of hers had telephoned that person and advised him that he could either sign over his electrical items to Ms Fillery or she would either make a complaint to the police of sexual assault or have him beaten up. When this was put to Ms Fillery she said she did not believe these were the true circumstances of the offence, but it appeared that her main point of difference related to the assertion on her part that she had been raped, rather than that she had had sexual relations with the person in question.
In any event, Ms Fillery has committed 56 offences since the intensive supervision order. These were described by counsel for the Crown as offences of dishonesty and they appear to be a mix of stealing and fraud. Some of the frauds involved quite substantial amounts of
money and in each instance it appears that the offence was committed for the purpose of obtaining money for drugs.
Ms Fillery confessed to having been a drug addict for a period of about two years, using mainly amphetamines. On the day of the alleged conversation with Ms Cunniffe, she first contended that she was not using drugs at that time, but later admitted that on the day in question she had administered amphetamines to herself by way of injection. She accepted that all present at the time of the conversation were "on drugs".
To understand the relevance of Ms Fillery's evidence before this Court, it is necessary to explain the part played by Ms Cunniffe in the trial of the three appellants. The decision on the part of the Crown prosecutor at trial to call Ms Cunniffe and a witness named Dufall came about by reason of a statement made by counsel for Nicholls in the opening stages of the trial. Following the Crown prosecutor's opening to the jury, counsel for Nicholls made a statement of the defence position. He told the jury that the defence would be asserting that persons other than the appellants were involved in the death of Ms Garabedian. The following is an extract from his opening statement:
"He will say, and we suggest this, that there were other people involved in this matter. It is not a matter for you to speculate but we ask you to keep your ears and your eyes open in relation to what happens during this trial. There will be a person by the name of Christy Cunniffe named and indeed my client will identify who that person is; also a person by the name of Wayne Horace Dufall, otherwise known as Bandit. I ask you to remember those two names because they will rear their heads a number of occasions in this trial and my client will tell you a little bit about them."
As a consequence of this statement the Crown called Cunniffe and Dufall as witnesses. Dufall was called first, and in his evidence‑in‑chief, was asked where he was on 22 ‑ 23 August 1998. It was pointed out to him that on Sunday morning, 23 August 1998, the body of Clare Garabedian had been found in a motel room at the Great Eastern Motor Lodge. His evidence was that he had been at home on the Saturday night-Sunday morning in Lovelock Place, Bassendean, where he was living with his de facto. He said that he had not been out anywhere on the Saturday night or in the early hours of Sunday morning. When cross‑examined it was put to him that he had been in the room where
Ms Garabedian died and had been there in company with Christy Cunniffe and Adam Davis. He denied this assertion.
Ms Cunniffe gave evidence‑in‑chief that she had nothing to do with the death of Clare Garabedian at the motel room in question. She was cross‑examined and it was put to her that she had in fact been in the room, but she denied it. It was suggested that she was "so full of heroin" that she could not remember being there, but she denied that. She was asked in detail what she had been doing on the night of 22 August - morning of 23 August and her reply was that she had been "possibly sleeping". She was asked whether she was certain she was not in a motel room at the Great Eastern Motor Lodge and she replied that she was certain she was not.
During the course of her cross‑examination Ms Cunniffe was asked whether she had ever made a prior statement that "Clare had died in her arms". Details of the alleged statement are set out in the following passage:
"Have you ever said to anyone that Clare died in your arms? --- No, I haven't.
Quite sure of that? --- Positive.
Positive. Some months ago talking to a friend? --- Positive.
That you ran into somebody, a friend of yours, at the Ampol service station in Wanneroo in Northlands when you were filling your car - sorry, he was filling his car and you drove up in a van with another fellow and tried to sell a person a police scanner? --- No.
Do you remember trying to sell someone a police scanner not so long ago? --- No.
Ever selling anyone a police scanner? --- No, I've never seen one.
Never seen a police scanner? --- No.
Ever been around to Mandy Hoy's houses? --- Yes.
Weren't there scanners freely on show and even turned on? --- No.
When you were at Mandy Hoy's place? --- No.
Are you sure you didn't meet a person in those circumstances that I've indicated to you, the Ampol service station, Wanneroo Road in Northlands? --- Positive.
Talked to them - someone you hadn't seen for a while? --- Positive.
Who asked you what had happened to Clare. You said it was a long story? --- No.
And you said you felt like a cunt because Clare had died in your arms? --- No, I never said such a thing.
Did you say that? --- No.
And the person said to you, 'Why is Marty and Mandy in gaol for it?' and you said it was to get you off? --- No, I never said such a thing.
You never said that to anyone? --- No.
Have you ever said that to anyone? --- No.
Have you ever said to anyone that you did it? --- No."
It appears that without objection, a witness named Merrett was called by the defence to give evidence of the alleged inconsistent statement of Ms Cunniffe. This witness claimed that prior to the trial he asked Ms Cunniffe what had happened "in relation to Ms Garabedian" and she responded that "Clare had died in her arms". The specific evidence was as follows:
"What did you say and what did Christine say as best you can remember? --- I said to Christine, 'What happened?' more or less and she said she felt like a cunt because Clare had died in her arms. I said, 'Well, what are Mandy and Marty doing in prison for it?' and - well, more or less I said, 'In the shit for it' and she said that was more or less of a way for her to be out of the spotlight, you know."
What counsel for Hoy sought to do was persuade this Court that had the jury had before it the evidence of Ms Fillery, it would have considered Ms Cunniffe to be a thoroughly unreliable witness. It would thus have
made it more likely that the evidence of Davis, about who was present in the room at the Great Eastern Motor Lodge, would have been rejected. This submission suffered from the fatal error of assuming that what Ms Fillery may have said about any out‑of‑court statement by Ms Cunniffe contrary to what she had said in court at trial, could go to the issue of whether she was or was not in the room at the Great Eastern Motor Lodge. It further suffered from the mistake of assuming that if Ms Cunniffe was considered to be an unreliable witness in this regard, it necessarily impacted upon the evidence of Davis.
As the Court reminded counsel for the appellant Hoy on numerous occasions, put at its highest, the evidence of Fillery could only show that the evidence of Ms Cunniffe was unreliable. It could never establish that Ms Cunniffe was in fact in the room at the Great Eastern Motor Lodge. Nor could it impact upon the evidence of Davis in that regard.
Assuming that the evidence was admissible (on the hypothetical assumption that a jury today would hear the evidence of Ms Cunniffe, including her denial that she had been in the room at the Great Eastern Motor Lodge and would then hear the evidence of Ms Fillery to the effect that she had made a prior inconsisent statement in that regard), the critical question in relation to the evidence of Ms Fillery is whether it has cogency and plausability. It must be of such a character that if considered in combination with the evidence already given upon the trial, the result ought in the minds of reasonable persons to be affected: Craig v The Queen (supra) at 439.
In Ratten v The Queen (1974) 131 CLR 510, Barwick CJ (at 519) put it this way:
"[T]he court must as before decide the credibility and the cogency of the fresh evidence in order to determine whether, when the fresh evidence, if believed by the jury, is taken with the evidence given at the trial in that sense most favourable to the accused which reasonable men might properly accept, it is likely that a verdict of guilty would not have been returned. In considering the material before it for this purpose, the element of credbility will be satisfied if the court is of opinion that the evidence is capable of belief and likely to be believed by a jury. The court in this instance will not be directly acting upon its own view of the evidence but rather upon that view most favourable to an appellant, which in the court's view a jury of reasonable men may properly take."
Having observed Ms Fillery in the witness box in examination and cross‑examination, I found her testimony to be lacking in cogency and credibility. As I have already pointed out, she was a person with a substantial criminal record, much of which was for dishonesty. Although she contended in her evidence that she regarded herself as an honest person, that was a difficult statement to accept. On no view of her evidence could it be said that it was capable of belief and likely to be believed by a jury. Her convictions for offences of dishonesty, her drug addiction and the fact that the alleged conversation with Ms Cunniffe was said to have occurred nearly two years ago and in circumstances where Ms Fillery herself was affected by drugs, all count against the credibility of her testimony. I cannot accept that it is evidence which would be likely to be believed by a jury. In any event, even if the evidence was believed by the jury, I cannot accept that when taken with the balance of the evidence given at trial, there was any significant possibility that the jury, acting reasonably, would have acquitted Ms Hoy, had the fresh evidence been before it: Mickelberg v The Queen (1989) 167 CLR 259 per Mason CJ at 273. It is to be borne in mind that the witness Merrett had already given evidence of an alleged prior inconsistent statement on the part of Ms Cunniffe in which it was said that she had admitted to having been present in the room on the night of Ms Garabedian's death. The addition of the evidence of Ms Fillery in relation to another alleged inconsistent statement on the part of Ms Cunniffe could not, in my view, have led to any significant possibility that a jury acting reasonably would have acquitted Ms Hoy, had that evidence been before it.
It is also to be observed that the jury already had evidence before it that Ms Cunniffe in the course of a video recorded interview with investigating police said "if you want to hear the fucking truth, I killed Clare".
I would grant the appellant Hoy leave to add to her grounds of appeal the fifteenth ground, but I would dismiss that ground of appeal.
Separate trials
The first ground of appeal advanced by the appellant Hoy is that the learned trial Judge's decision not to separate the trials of the appellant and her co‑accused was in error and created a miscarriage of justice. The same ground is the first of the appellant Coates' grounds of appeal and the second of the appellant Nicholls' grounds. The ground is particularised on behalf of Nicholls, asserting:
"(a)There was a risk of impermissible prejudice in respect of the Applicant being tried with the two other co‑accused;
(b)The risk arose from the video record of interview of Coates on 7 October 1998 in which he implicates the Applicant;
(c)The interests of justice could not override the prejudice sheeted home to the Applicant as a result;
(d)The Applicant unlike Coates and Hoy had not been charged with a serious violent offence against the deceased at the Gnangara Pine Plantation;
(e)The prejudice to the Applicant could not be overcome or indeed cured by any direction to the jury no matter how detailed or thorough;
(f)The allegations against the Applicant which came from Coates were inadmissible against him;
(g)Furthermore the Applicant in his video record of interview implicates Coates and Hoy, such implication giving rise to an impermissible prejudice to the latter, for which no direction could cure same."
With minor variations, these particulars are common to the cases of each of the other appellant.
The principles upon which an application for separate trials should be considered were set out at some length in R v Demirok [1976] VR 244 where the Full Court of the Supreme Court of Victoria (Young CJ, Lush and Crockett JJ) made (at 251) these observations:
"The ordering of separate trials of different counts in a presentment is a matter within the discretion of the trial Judge. Usually, though not necessarily, (R v Downey [1910] VLR 361, at pp 366‑7) the application is made before the trial itself has started, and in the present case the application was made before arraignment and the empanelling of the jury. At this point in the trial the knowledge available to the judge of the course which the trial is likely to take is based upon the depositions, and, unless counsel for the accused volunteer further information, the depositions alone. It will appear from the
depositions whether the accused have made statements to the police, and whether those statements involve a denial or an admission of guilt. The judge is aware that it is possible that all the accused or some or none of them may give evidence. In the case of accused persons who are alleged to have made statements, the judge does not know whether the statements will be acknowledged or repudiated, adhered to or departed from. He does not know whether accused persons who appear from their statements to be giving the same account of events will, in the result, be in difference between themselves. The possibilities of the outcome of which the judge is necessarily ignorant can be multiplied indefinitely. Nevertheless, a decision must be made.
When the judge's exercise of his discretion comes to be challenged in an appellate court, the trial has been completed and the appellate court has the advantage of knowing how in the end it was conducted. This circumstance means that any review of the judge's discretion has unusual qualities. If it can be shown that the judge made an error in the exercise of his discretion the appellate court will nevertheless not put the judge's decision aside and substitute a different view of its own unless, in the event, it considers that the course of the trial constituted a miscarriage of justice."
The Court weighed up several factors which were said to have constituted such prejudice to the applicant as to constitute a miscarriage of justice. Their Honours then looked carefully at the question of whether a miscarriage of justice had occurred and in so doing referred to matters of public interest, which are of importance in any consideration of an application for separate trials. The Court said (at 254):
"The matters of public interest which must be considered in this case, and in all such cases, may be summarised as follows. In the first place, there is the question of the administrative matters of court time spent and public expense incurred if more than one trial is to be conducted. These matters will in many cases not be of very great weight, in others they may assume real significance. Secondly, it is against the interests of justice that there should be inconsistent verdicts, and those interests require that where the accounts of accused persons differ or conflict their differences should be resolved by the same jury at the same trial. Thirdly, and allied with the first two considerations,
no significant possibility that the jury could have convicted on the basis of a choice between Crown and defence witnesses as distinct from being satisfied beyond reasonable doubt of the ingredients of the charge against any one of the accused persons. Indeed, his Honour made it clear that the case was not a contest between Crown witnesses on the one hand and defence witnesses on the other.
Although other passages in the learned trial Judge's directions were also criticised by counsel for Coates for the same reason, it seems to me that on each occasion when his Honour dealt with the issue of onus of proof (and there appear to have been six separate occasions when the issue was addressed), it was made clear to the jury that if the evidence led by or on behalf of the defence was such that they were left with a reasonable doubt on any issue, they could not find beyond reasonable doubt against any accused on the issue.
In view of the fact that there was an element of "oath against oath" in the sense that the account given by Davis was vigorously denied by each of the accused persons, the direction suggested by Brennan J in Liberato v The Queen might well have been given, but the failure to direct the jury specifically in those terms cannot be said to be fatal to his Honour's directions and, in my view, the ground of appeal cannot be made out.
The direction on lies
Ground 10 of Coates' grounds of appeal challenges, in the following terms, the direction given on lies:
"10.The learned trial judge wrongly told the jury that lies by the appellant could constitute implied admissions and therefore corroboration of Davis and that lies by Nicholls in court could be used against the appellant. Alternatively, he should have explained the test to be applied by the jury."
The first thing to be said about this ground is that the learned trial Judge did not direct the jury that any lies told by Coates could constitute corroboration of the evidence of Davis. His Honour gave no corroboration warning.
The direction given by the learned trial Judge in relation to the use to which the lies could be put was entirely in accordance with the directions given by the High Court in Edwards v The Queen (1993) 178 CLR 193.
In the course of these directions his Honour did tell the jury that if they accepted lies to have been told by any of the accused persons, that material could be used as evidence by way of an implied admission of guilt. The jury was, however, told that no accused could be convicted solely upon the basis of that material and his Honour pointed out that its true importance in this case was that it was material independent of Davis which supported his testimony. That was, in my view, an appropriate direction. It was not a direction that the lies were corroboration of the evidence of Davis, because no corroboration warning was given. The reference by counsel for Coates to the passage of Deane, Dawson and Gaudron JJ in Edwards v The Queen (supra) (at 211) which stresses the need to avoid telling the jury that lies constitute corroboration is of no relevance to this case.
To the extent that the learned trial Judge told the jury that they might consider statements made by Coates as constituting implied admissions in the sense that he was attributing to Nicholls what in fact the Crown asserted Coates himself did in relation to the killing, that direction cannot be said to have been wrong. Likewise, when the learned trial Judge reviewed the evidence given at trial by Nicholls and Coates about two persons named Cunniffe and Dufall, his Honour was correct to tell the jury that if they concluded that Nicholls had lied about seeing Cunniffe and Dufall in the motel room on the night of Ms Garabedian's death, that could impact upon the testimony of Coates that he was told by Nicholls that Cunniffe was in the room. Likewise, the claim by Coates that Dufall had told him that he was in the room.
His Honour pointed out the jury that if they accepted that neither Cuniffe nor Dufall were in the motel room at the relevant time, it "certainly has a considerable impact in relation to the credibility, particularly of Mr Nicholls and to a lesser extent, but in a real sense also in respect of the credibility of Mr Coates". This direction cannot be said to have been wrong. His Honour was not telling the jury (as asserted in the ground of appeal advanced by Coates) that lies actually told by Nicholls in court could be used against Coates. His Honour was telling the jury that in the circumstances that I have set out, a finding that Nicholls had lied in relation to this matter could impact upon the credibility of Coates as a witness. That, in my view, was a direction his Honour was entitled to give. I am therefore unable to find any substance in ground 10 of the grounds of appeal of Coates.
Other grounds of appeal
Hoy
There are only two grounds of appeal other than those with which I have already dealt. The first is allied with the ground of appeal which contends that the learned trial Judge failed to separate out in his direction to the jury the evidence admissible against the appellant Hoy. Ground 2(b) is in these terms:
"2bThat further in respect of ground 2a the learned trial judge failed to direct the jury as to the effect upon the case against the Appellant of any findings the jury may make upon the credibility of the principal crown witness, Davis, based upon their appreciation of evidence inadmissible against the Appellant (eg out of court statements of co‑accused)."
In the written submissions filed on behalf of Hoy, this ground is elaborated upon by the contention that when the learned trial Judge dealt with the evidence of Davis, he was obliged to explain to the jury how they should deal with evidence which supported his credibility, but which was inadmissible against Hoy. The section of his Honour's charge to the jury which is complained about is that which related to the treatment the jury could make of lies of the accused persons. In this respect his Honour pointed out to the jury that if they were satisfied lies had been told by any of the accused persons, they must be satisfied (beyond reasonable doubt) that the only reason for the telling of the lie was fear of the truth and fear that the truth would convict the person telling the lie. This direction was in accordance with authority. His Honour then pointed out that the jury could, once those rules had been followed, use lies as evidence by way of an implied admission of guilt, but they could not solely upon the basis of those lies convict any accused person. Again, this direction was in accordance with authority. His Honour then pointed out that the true importance in the present case of the lies allegedly told by the accused (if the jury found them to have been so told) would be "as material independent of Davis supporting the truthful, accurate evidence if that is the case that he has given and making you more inclined to a conclusion that his evidence may be accepted".
The criticism of this direction is that the learned trial Judge failed to point out that lies told by one accused which might be supportive of the evidence of Davis was nevertheless evidence inadmissible against a co‑accused. However, the learned trial Judge separately and carefully
explained to the jury on a number of occasions how the out‑of‑court statements of accused persons were to be treated. These directions I have already referred to. Only very shortly before the direction complained of, the learned trial Judge had told the jury that the evidentiary value of a statement made out of court was only against the maker of that statement.
I am unable to accept that there was any error on the part of the learned trial Judge in the manner in which he dealt with lies told by the different accused persons insofar as those lies could be relied upon to support the evidence of Davis.
Ground 11 of Hoy's grounds of appeal complains that the learned trial Judge erred when he told the jury that the case against Hoy involved her providing heroin to Davis for the purpose of killing the deceased. The passage in which his Honour made this observation was as follows:
"… it is said that she provided Davis with her mobile telephone so the parties could keep in touch during the process of locating Garabedian and thereafter if required. She provided Davis with her motor car. She gave him, according to his evidence, $200 to pay for Garabedian's services as a prostitute and to obtain the use of the motel room. She assisted to provide the bag of heroin in powder form so that could be administered to or by her. She assisted to guide Davis to Garabedian, it is said, and helped in the process of identifying Garabedian to Davis."
This passage was followed up by the following direction in which his Honour dealt with the question whether Hoy had in law aided other accused in the killing of Ms Garabedian:
"So that's the sort of activity to which your attention is directed by the crown case in relation to Ms Hoy and the question for you then would be whether you found that she did any one or more of those matters and at the time that she did those things, any such things that you may find she did do, are you satisfied, firstly, that those were acts which have gone sufficiently far to constitute an aiding on her part of the process of killing Clare Garabedian and did she know at that time that this was the end to which those processes were being directed, that is, the intentional killing of Clare Garabedian."
What Davis said in relation to the provision of heroin was as follows:
"What happened at that stage? --- She handed me a set of keys and a mobile phone.
A set of keys to what? --- To her car.
And a mobile phone? --- Yes.
Whose mobile phone was that? --- I think it was hers.
All right. For what purpose were you given the keys to the car? --- So I could use it to drive into town.
How did that come about? --- I was told that I'll take her car and they would go in the other car.
Who told you that? --- Amanda Hoy and Martin Coates.
When did they tell you that? --- Just after I got out of the shower.
All right. What were you told about that? You tell us, please, Mr Davis? --- That I was to take Amanda's car, to follow them in their car, in Martin Coates's car.
Why? --- Take me down to the park.
For what purpose? --- So we can find this girl.
So you had a set of keys to the car? --- Yes.
A mobile phone? --- Yes.
Have anything else? --- The syringe in my pocket and Amanda Hoy gave me $200.
For what purpose? --- To pay for the girl's services.
What was said when you were given the $200? --- Just to take $200 to pay for a room or her services.
Who told you that? --- Amanda Hoy.
What were you going to use to give her a hot shot? --- With the heroin that Martin Coates gave to me.
When did he give you the heroin? --- Just after I got the $200, the keys and the mobile phone.
How did you know it was heroin? --- He told me so.
What was it contained in? --- In a snaplock small bag.
Where did he produce that from? --- I don't know.
What quantity of heroin was in the snaplock bag? --- To me it looked like a gram.
When you were given this heroin, what was said to you? --- 'Here's the heroin that you need.' "
When his Honour told the jury that Hoy had "assisted to provide the bag of heroin in powder form so that could be administered", it was an overstatement of the evidence of Davis. Clearly it was Coates who handed the heroin to Davis. However, according to Davis, Hoy was present when Coates gave the heroin to him. Indeed, according to him, Hoy had just handed over money, keys and a mobile phone.
Counsel for the respondent argues that Hoy did in fact assist in the provision of heroin in the same way that she assisted in allegedly guiding Davis to pick up Ms Garabedian. It is put that the observation that Hoy had assisted in the provision of heroin was open on the evidence and not likely to mislead the jury concerning the culpability of Hoy.
When his Honour referred to the evidence of Coates only a few minutes later, he did make it clear that Coates had provided the heroin in powder form. When referring to the list of matters implicating Coates in the commission of the crime alleged, his Honour referred to "his participation in providing the heroin in powder form".
In my view, his Honour did overstate the position in relation to Hoy and the provision of heroin. However, on the evidence of Davis, she was present when Coates handed the heroin in powder form to Davis. She was participating in the events at that time. In my view, no miscarriage of justice could be said to have been occasioned by reason of the over‑statement by his Honour of exactly what she did in relation to the provision of the bag of heroin. It is arguable that she was assisting in the sense of aiding and therefore there could not have been any miscarriage of justice. In any event, the comment was only one in the course of a very long and detailed charge to the jury and it was followed up by a clear reference, minutes later to the fact that it was Coates who had handed over the heroin.
In my view, no ground of appeal advanced by Hoy has any substance and her appeal should be dismissed.
Coates
Ground 3(c) of the grounds advanced by Coates contends that the learned trial Judge, "failed to direct the jury that an adverse finding as to credibility of another accused should not be used to bolster the credit of the pivotal Crown witness, Davis", insofar as that evidence applied to Coates. I have already dealt with a similar ground in relation to the appellant Coates. I there pointed out that his Honour made it very clear that out‑of‑court statements of one accused person could not be used against a co‑accused. In the course of this direction his Honour sufficiently covered this area. It was, in my view, unnecessary that his Honour should have specifically directed the jury that if they made an adverse finding as to the credibility of one accused, that could not be used to bolster the credit of the evidence of Davis in relation to any other accused.
Ground 4(a) of Coates' grounds contends that the learned trial Judge directed the jury in an unbalanced manner by reason of the use of "emotive language suggesting his view of the evidence, indicative of guilt of the appellant". The criticism is of his Honour's statement that the jury "must have been appalled as I was of the treatment that she (the deceased) apparently received in the manner of her death and the circumstances in which she was killed". There was also reference by his Honour to the accused persons trading in drugs of addiction and helping "to disseminate that sort of poison in our community and … for profit".
I have previously set out a number of authorities which refer to the obligation upon a trial Judge to present a balanced account of the conflicting cases. This was a trial of a very serious offence. The circumstances in which Ms Garabedian met her death were truly appalling and this was so whether her death was caused by self‑administration of heroin or by the administration to her of the heroin "hot shot" as alleged by the Crown.
I have had the opportunity of viewing the photographs which were tendered in evidence and which show the aftermath of the events in the motel room. The picture of Ms Garabedian on the floor of the room is not a pleasant sight. It is entirely understandable that his Honour should have described the events as put forward by the Crown in the way in which he did. As Nagle CJ at CL said in The Queen v Ali (supra) at 167 ‑ 169, no mere reading of transcript and summing up can ever put an appeal court in
a situation where it is able to discover the atmosphere, the nuances and the full reality of a trial. Examining a summing‑up sentence by sentence in search for fault is not the correct way to see whether a Judge put the case fairly and adequately to the jury.
There is, of course, a limit to which a trial Judge is entitled to make personal comment on the evidence. In RPS v The Queen (supra), Gaudron ACJ, Gummow, Kirby and Hayne JJ made the following observations about the entitlement of a trial Judge to comment on factual issues at [42].
"It is for the jury, and the jury alone, to decide the facts. As we have said, in some cases a judge must give the jury warnings about how they go about that task. And, of course, it has long been held that a trial judge may comment (and comment strongly) on factual issues. But although a trial judge may comment on the facts, the judge is not bound to do so except to the extent that the judge's other functions require it. Often, perhaps much more often than not, the safer course for a trial judge will be to make no comment on the facts beyond reminding the jury, in the course of identifying the issues before them, of the arguments of counsel."
In this case, the learned trial Judge chose to comment on the circumstances of the death of Ms Garabedian and he did so in strong terms. I cannot for my part conclude that his Honour was in error in so doing.
Ground 4(b) of Coates' grounds complains that his Honour told the jury there was "precious little" put to Davis by way of previous inconsistent statements. Counsel for Coates complains that this was not the case and previous inconsistent statements of Coates were the subject of a considerable body of evidence. However, the passage in which his Honour used the words "precious little" related to the use to which the jury might put prior inconsistent statements of Davis at the preliminary hearing. The direction was in the following terms:
"Preliminary hearing - that's a process which some of you may be familiar with; some of you may not be. It's simply a process in which a prima facie case may be demonstrated before a person is committed on for trial to this court. Of itself it makes no decisions whatsoever about the case but it is an occasion upon which evidence may be given and if given, given on oath
by a witness, so it may now be put to the witness, and it has particularly been the case in respect of Mr Davis, that he may have put to him now that what he says upon his oath in this place is different from what he said on his oath in that place.
I think actually in relation to Mr Davis, now that I mention it, there was actually precious little that was put to him of that kind. What was often put to him was that something that was being said now hadn't been said then. Now, that's a bit more difficult, as I'm sure you will immediately appreciate. You need to be clear in your minds whether you think that the failure to mention something on another occasion is an inconsistency when the thing is positively mentioned now, or is it that the failure to mention it on the previous occasion is explicable because the witness wasn't asked or his attention wasn't directed to the particular area of fact with which we're concerned or something of that kind, so be careful about that."
Davis was cross‑examined at length in relation to other out‑of‑court statements and in relation to this his Honour gave the following standard direction:
"You look at the content of what is said to you in the witness box when it's measured against other things that the witness has said on other occasions. You will see that a lot of the testing of witnesses has been in that sort of context. What did the witness say before?"
This passage immediately preceded his Honour's observations in relation to what Davis had said at the preliminary hearing. I am unable to conclude that any error has been shown in relation to this passage in his Honour's directions.
Ground 14 of Coates' grounds of appeal complains that the learned trial Judge left the way open for the jury to speculate by offering possible explanations of evidentiary matters which were not supported by the evidence and/or not put forward by the Crown, all of which tended to support the Crown case. Nineteen particulars are given in support of this ground. In each case, what in essence is complained about is a comment by the learned trial Judge in relation to a particular piece of evidence. For example, the first particular complains about the learned trial Judge's reference to the fact that a potential witness, Kristy Elvy, was not called. This witness was an alibi witness for both Coates and Nicholls. She was present at the Court and available for the defence, but she was not called
to give any evidence in support of the alibis or alibi notices which had been put forward by Coates and Nicholls.
His Honour made reference to the fact that there was no reason why Ms Elvy could not have been called as a witness, but stated that in any event, any evidence she could have given would have been of a particularly limited kind. His Honour then cautioned the jury in relation to the matter, pointing out that it was not open to the jury to conclude that because she was not called, her evidence may have negated the alibi it was suggested she might provide. His Honour said:
"There is all sorts of speculation which is attended upon her absence … these are speculative matters …".
His Honour directed the jury, however, that they must not speculate about evidence which was not before the Court. The direction was in these terms:
"It follows then that in relation to matters which have not come before you, you should not speculate about what evidence might have been. A number of people may have been referred to who might have been proposed to be witnesses of one kind or another. As a general observation, subject only to one or two exceptions to which I shall refer in due course, let me say to you about that don't waste your time speculating about what people who didn't come might have said if they had come into the witness box and given evidence.
Concentrate upon what you have got affirmatively before you and you will do very well. The other stuff is not only speculation, it's a distraction and it can't be of any assistance. It can only be a hindrance to you."
His Honour was at pains to distinguish between speculation and consideration of the significance that should be attached to a particular piece of evidence. This was particularly so in relation to the way in which the jury was invited to treat pieces of evidence which might or might not be generally consistent with the truthfulness and accuracy of the story told by Davis. As I have previously pointed out, his Honour put it to the jury that some of the evidence might well "cut both ways" and have a capacity to be inconsistent with his evidence. It was all a matter for the assessment of the jury.
The 19 points raised by counsel for Coates did not, in my view, invite the jury to speculate. In relation to them, his Honour made observations on the evidence which the jury were entitled to take into account in assessing that evidence. They were intended to be helpful observations and in many respects constituted comment by the trial Judge which he was entitled to make. It is unnecessary to go through each one of the pieces of evidence in relation to which criticism is raised. In my view, it did not invite the jury to speculate, but rather to assess the evidence which had been led.
In my view, none of the grounds of appeal advanced by Coates have been made out.
Nicholls
Ground 9 of Nicholls' grounds of appeal complains that the learned trial Judge down played the importance of the witnesses Cuniffe and Dufall to such an extent that the jury could only have thought that they were of no importance in their deliberations. Particulars to this ground contend that his Honour failed to put before the jury certain inconsistencies in relation to their evidence and failed to refer to their evidence in a balanced way.
A review of his Honour's directions to the jury indicates that the prosecution witnesses Cuniffe and Dufall were the subject of extensive directions. Reference was made to their evidence in the context of the direction on motive, his Honour pointing out that the jury had no interest in the question whether Cuniffe and/or Dufall had any motive to kill Ms Garabedian. His Honour made reference during the review of Davis' evidence to the question whether Dufall, and to a lesser extent, Cuniffe, may have been present in the room at the motel where Ms Garabedian met her death. The theory that Dufall and Cuniffe may have been in the room and not the accused persons was explored by his Honour in the context of the credibility of Davis. That is, whether Davis had deliberately concealed the presence of Dufall and Cuniffe in the room and instead placed the accused in the room. The references in this respect seem to be entirely appropriate and no issue can properly be joined with the way in which his Honour approached the matter.
There was an issue at trial as to the presence of a bottle of Kahlua in the room where Ms Garabedian met her death. His Honour dealt with this in detail. He pointed out that whatever the investigators may have concluded about who did or did not drink Kahlua and milk was irrelevant. His Honour raised for consideration by the jury the question whether the
evidence about Kahlua and milk assisted in supporting the evidence of Nicholls that Cuniffe was in the room. On the other hand, his Honour pointed out that the presence of Kahlua in the room might be entirely consistent with the fact that only Ms Garabedian and the deceased were there when drinks were consumed and the Kahlua had nothing at all to do with Cuniffe. The issue was exhaustively dealt with by his Honour and, in my view, no complaint can be made about the treatment he gave it. The question of Cuniffe's credibility as a witness was fairly placed before the jury in relation to statements she made about Hoy's attempts to get her to say that she was present in the room when Nicholls arrived there.
His Honour pointed out to the jury that there was affirmative evidence from Nicholls (and also from Coates as to what Nicholls had told him) about Cuniffe being in the room on the night in question. His Honour raised with the jury the question whether the evidence of Davis could be accepted. He pointed out in no uncertain terms that if the jury thought that Cuniffe and Dufall may have been present in the room and therefore knew something about the circumstances in which Ms Garabedian died, it would seem to "completely terminate the Crown case depending upon Davis' testimony as it does". All of this was, in my view, a fair way to treat the evidence of these two witnesses.
The complaints about the manner in which the trial Judge treated this area of the evidence are argumentative. They proceed from the argument that there was a considerable body of evidence which placed Cuniffe and Dufall in the room with Davis when the deceased met her death. That was the case advanced on behalf of Nicholls and his Honour made it clear to the jury that it required consideration. As he put it, if the jury was left with any doubts about the matter, the evidence of Davis could not be relied upon and the case against the accused could not be established. I can find no basis upon which it could be contended that the learned trial Judge failed to properly put these issues before the jury.
Ground 10 of Nicholls' grounds complains that, "the learned trial Judge failed to direct the jury as to the evidence which supported the defence proposition that Davis knew or must have known the deceased prior to her death". This ground was ultimately abandoned, but in any event the question was adequately dealt with by the learned trial Judge in the following passage:
"Now, Ross's evidence was that - which was concerned with a previous occasion in which he encountered Garabedian and Davis, I think in about March or April of that year, in
Northbridge and that they appeared to be together and they appeared to be friends and on that occasion, that was the one occasion as I understood it from his evidence that he says that he saw them together and he only later, in about October of that year, after Davis's extradition from Queensland, saw him again in prison.
Now, that's evidence which may bear upon the question of whether Davis is a truthful witness when he says that he didn't know or appreciate that he had had previous contact with Garabedian when this question of her death was being discussed and when he was brought into contact with her and it is a matter which you will need to consider, whether you regard Ross as being a witness who in his turn you place any reliance upon, is a matter for you, and whether you think if you do his evidence carries the matter very far on that issue, is a matter for you.
It is suggested to you and that material is put before you upon the basis that if you accepted that evidence, then it would be a point contrary to the sworn evidence that Davis gave that he did not previously know who they were talking about when they were talking about Clare being killed and that he required to have her pointed out to him. So it's of some importance in that regard."
Ground 11 contends that the jury was invited to speculate on a number of issues, but I have already dealt with this aspect of his Honour's directions when dealing with a similar ground of appeal raised on behalf of Coates. In my view the ground has no substance.
Ground 12 complains that "the learned trial Judge directed the jury that evidence of a witness Lazarakis supported the evidence of Davis", when this was not the case. The ground was eventually abandoned, but may be briefly dealt with. The passage where his Honour made this reference was as follows:
"What it is is a body of evidence which may support, you may think, the truthfulness and the accuracy of Davis as a witness - no more nor less than that. As I say, it does that, as you will see when we talk about the pieces of evidence in question, not by reference to the fact that it implicates any accused person but by reason of the fact that it is consistent with what he said occurred.
Let me give you some examples. The evidence of Lazarakis, who you will recall said that he was there briefly at the house on the night of Saturday, 22 August, and saw - he was going to purchase amphetamines from Hoy and he saw Coates there and Nicholls and Davis, whom he knew. Davis was there tattooing Coates. It was sometime between 7.00 and 7.30pm. He was there for about 15 minutes."
His Honour then referred to the evidence as evidence of a "relatively minor kind" to show that there was a group of people at the house in the way in which Davis contended.
There is no doubt that his Honour was wrong in relation to this reference. Lazarakis did not say that Nicholls was present at the house. In fact, he said that he did not see Nicholls at any time at the house. When the jury had retired, counsel for Nicholls raised this issue with the learned trial Judge, but described it as "a small point". In my view, it was truly that. In the context of the long and detailed charge to the jury given by his Honour, it cannot be said that this error created any miscarriage of justice.
Ground 13 contends that, "the learned trial Judge erred in directing the jury in respect of the witness Zuvela's evidence in that he emphasised that it was worthy of little weight, thus diminishing the importance of that evidence", from Nicholls' point of view.
This evidence related to the purchase of a bottle of Kahlua by Davis after he had picked up Ms Garabedian at Hyde Park and was in the course of driving her to the Great Eastern Motor Lodge in Belmont. He stopped at the Belmont bottle shop and purchased three cans of Bundaberg rum and cola, two bottles of Kahlua and packet of cigarettes. The bottle of Kahlua was found in the motel room and could be linked by a labelled number to the Belmont bottle shop.
There was evidence from the accused to the effect that Davis had left the house at which they were present at around 8.30pm. But Zuvela testified that it was between 7 and 8pm that she sold the bottles of Kahlua and other liquor. These she said were sold to a female who was alone. Clearly there was an inconsistency in the evidence of Davis and that of Zuvela. However, his Honour reviewed that evidence in the course of directing the jury about the relevance of Kahlua generally. His Honour said:
"I suppose one should mention the evidence of Ms Zuvela, although for myself, and I hasten to add it's a matter - nothing to do with me, it seemed to me it was difficult to make much ground from what she established.
Clearly enough the sale she made was to no person connected with this case, you might think, and in circumstances quite different from this case. She said, as I have understood it, that the other bottle attendant was a Mr Paul Moss and she did not purport to give any evidence of course of what Mr Moss might have done by way of sales. She said it was the only sale she made. If it was the only sale made from the bottle department that night then it is difficult to see where the Kahlua and milk in the room came from because it seems to be accepted on all sides that it came from that particular outlet because of the identifying number you remember that was apparently on the bottle.
So I would have thought it is clear that Ms Zuvela's evidence can't be taken at face value as establishing some facts which are inconsistent with the evidence given by Mr Davis at all, but whether you take a different view of it is of course entirely a matter for you."
I can see no difficulty with this summation of the evidence of the witness Zuvela. In my view, his Honour was correct in directing the jury that whatever one thought of the evidence, it was obvious that the Kahlua and milk in the motel room came from the very liquor store where Zuvela worked. There was an identifying number on the bottle which proved that fact. This, therefore, suggested that Ms Zuvela's evidence might be mistaken about the time at which the bottle was purchased. However, the matter was sufficiently aired before the jury. There is no substance in the ground which contends that his Honour erred in the direction in relation to it.
Ground 14 complains that the learned trial Judge failed to adequately direct the jury "as to identification of [Nicholls] or to identification at all in that regard". The ground was ultimately abandoned and it had no substance whatever. Identification was not an issue in the trial. Nicholls testified that he was at the motel room on the night in question. It could not conceivably have been the case that the learned trial Judge was called upon to give an identification direction.
In my view, none of the grounds of appeal advanced by Nicholls can succeed.
Failure to redirect
The grounds of appeal raised on behalf of each of the appellants that the learned trial Judge ought to have redirected the jury on a number of issues must fail. His Honour's directions were, in the circumstances, appropriate, adequate and proper. To the extent that there may have been some errors, they did not constitute a miscarriage of justice. Whether a trial Judge calls back a jury for redirections on small issues of fact is a matter entirely within his discretion. In this case, his Honour was, in my view, justified in declining to redirect on small errors of fact, the detail of which would not, in my view, have been likely to have remained in the minds of the jurors.
I would dismiss the appeals of each of the appellants.
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