Jackson v The State of Western Australia
[2018] WASCA 223
•21 DECEMBER 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: JACKSON -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 223
CORAM: BUSS P
MITCHELL JA
HALL J
HEARD: 10 AUGUST 2018
DELIVERED : 21 DECEMBER 2018
FILE NO/S: CACR 26 of 2017
BETWEEN: GARY DAVID JACKSON
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: ALLANSON J
File Number : INS 39 of 2016
Catchwords:
Criminal law - Appeal against conviction - Accomplice warning - Turns on own facts
Legislation:
Criminal Code (WA), s 279
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Mr T F Percy QC |
| Respondent | : | Mr R G Wilson |
Solicitors:
| Appellant | : | D G Price & Co |
| Respondent | : | The Director of Public Prosecutions (WA) |
Case(s) referred to in judgment (s):
Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314
Cecez v The State of Western Australia [2007] WASCA 260; (2007) 35 WAR 344
Eravelly v The State of Western Australia [2018] WASCA 139
Foo v the Queen [2001] WASCA 406; (2001) 126 A Crim R 486
Mansfield v The State of Western Australia [2017] WASCA 178; (2017) 52 WAR 233
McKay v The State of Western Australia [2007] WASCA 196
Milne v The State of Western Australia [2005] WASCA 38
White v The Queen [2006] WASCA 62
JUDGMENT OF THE COURT:
The appellant was convicted after trial of one count of murder contrary to s 279 of the Criminal Code (WA) and one count of conspiracy to pervert the course of justice contrary to s 135 of the Criminal Code. He seeks leave to appeal against his conviction on the count of murder.
The State case was that the deceased, Wade Dunn, had been killed by being assaulted with a metal pole. The appellant was alleged to be responsible for the killing either because he inflicted the fatal injuries or aided his cousin, Mark Corbett, to do so. Prior to the trial, Corbett pleaded guilty to murder and was called as a prosecution witness. The ground of appeal is that the learned trial judge erred in law by failing to warn the jury as to the dangers of convicting on the evidence of an accomplice, that is, Mark Corbett.
A trial judge must give a warning to a jury about its assessment of particular evidence whenever a warning is necessary in order to avoid a perceptible risk of a miscarriage of justice. Such a risk will arise where there is a feature of the evidence that may adversely affect its reliability, the significance of which may not be apparent to members of a jury. Whether a warning is required will always depend upon the particular facts of an individual case.
In the present case the trial judge drew the jury's attention to factors that were relevant in assessing Corbett's credibility. This included referring to the fact that Corbett (like the appellant) was a drug dealer and that his cooperation in giving evidence against the appellant would be taken into account when he was sentenced. In the particular circumstances of this case, there was no perceptible risk that, without a warning, the jury might not appreciate the factors adversely affecting the reliability of Corbett’s evidence, or might not take those factors into account in evaluating Corbett’s evidence. A perceptible risk of a miscarriage of justice has not been established and the ground of appeal cannot succeed.
Prosecution case
The prosecution case was that the appellant struck the blow, or a blow in a series of blows, that caused the deceased's death. However, if the jury were unable to be satisfied whether it was the appellant or Corbett who struck the blow or blows that killed the deceased then the appellant was nonetheless guilty because at the very least he did an act or acts that aided Corbett in killing the deceased.[1]
[1] Trial ts 96.
The prosecution case was that the appellant, Corbett and the deceased were in the business of dealing in illegal drugs, principally methylamphetamine. As at May 2015, Corbett owed approximately $27,000 for drugs and was struggling to repay that money. He believed that the appellant and the deceased were cheating him by collecting monies owed to him for drugs and keeping it for themselves. He was facing pressure from those he owed money to. That pressure came in the form of threats of violence and taking of his property.[2]
[2] Trial ts 82 - 83.
The prosecution could not say why the appellant and Corbett had turned against the deceased.[3] In the weeks preceding the murder, the appellant stated to Corbett that he wanted to 'whack' the deceased.[4] On the prosecution case the appellant, with Corbett's help, planned to lure the deceased to Corbett's house and assault him. The pretext was to be that the appellant and the deceased would be attending to collect a debt from Corbett. The intention was to severely bash the deceased, if not kill him.[5]
[3] Trial ts 83.
[4] Trial ts 476.
[5] Trial ts 83.
On the evening of 19 May 2015 the appellant picked up the deceased from his home and they drove together to Corbett's house in Alexander Heights. A nearby house had a CCTV camera that showed the appellant's car arriving at 7.45 pm. The quality of the footage and the distance of the camera from the scene did not enable identification of any individuals. However, the footage showed two people getting out of the car and a short time later an altercation with arm actions consistent with one person striking another. A third person can also be seen coming from the direction of the front door. The appellant's vehicle left the house at 11.20 pm.[6]
[6] Trial ts 83 - 85.
The prosecution case was that on entering the house the deceased was struck with a metal pole by the appellant. There was a struggle that spilled out to the front of the house and in which Corbett also became involved. Eventually the deceased was overcome and died at the house.
The prosecution relied on evidence obtained from a forensic examination of the house. That evidence included the finding of a dental plate in two separate pieces. A vacuum cleaner was seized and the contents of its bag included two teeth and a small clump of what looked like skin with hair attached. The skin and teeth were tested for DNA and a profile was obtained which matched that of the deceased. A forensic dentist examined the teeth and the dental plate and compared them with dental records belonging to the deceased. Those records were compatible with the teeth and dental plate that were found.[7]
[7] Trial ts 85.
A number of stains that appeared to be blood stains were identified outside the house in the area where the altercation could be seen on the CCTV footage. Stains were also identified on walls in the entry area of the house and in the lounge room. Some of the stains were swabbed and a DNA profile was obtained which in each case matched that of the deceased. A blood pattern analysis expert examined stains that looked like blood and concluded that the deceased had been struck at least four times, at least once in the entry way, once in an alcove and once near the wall between the front door and the alcove. In order to produce the blood spatter patterns, the deceased must have first been suffering a bleeding injury that was the source of blood from subsequent blows. That is why the expert was able to come to the conclusion that the three blood spatter patterns must have resulted from at least four blows.[8]
[8] Trial ts 86.
There was also evidence that indicated that a clean‑up had occurred at the house. DNA consistent with that of the deceased was found on a mop sponge lying on a table in the backyard, a small metal rod from a bin found in the dining area, a lamp on a kitchen bench, the bucket and front frame of a wheelbarrow that was found in the garage, the floor of the kitchen, a curtain that was found in the garage, a blanket in the garage and a piece of black plastic found in the garage.[9]
[9] Trial ts 85.
Shoes were later seized by the police from both the appellant and Corbett from other locations. In both cases the shoes tested positive to the presence of blood and had DNA which matched the profile of the deceased. The soles of these shoes were compared to impressions in what appeared to be blood at Corbett's house. The impressions were consistent with having been made by the shoes of both the appellant and Corbett.[10]
[10] Trial ts 86 - 87.
A fingerprint in what appeared to be blood was found on a washing machine at Corbett's house. When swabbed this print tested positive with a presumptive test for blood, although it tested negative with a confirmatory test. A DNA test matched the DNA profile of the deceased. The fingerprint was identified by a fingerprint expert to be the left middle fingerprint of the appellant.[11]
[11] Trial ts 88.
A swab was taken from what appeared to be blood on the frame of the driver's door of the appellant's car. That swab tested positive to a presumptive test for blood and the DNA profile matched that of the deceased. Corbett's car was also examined and swabs taken from the rear towbar and the rear bumper area also tested positive for blood and matched the DNA profile of the deceased. A hollow metal pole and a rag were seized from Corbett's van, which also had stains consistent with being the blood of the deceased.[12]
[12] Trial ts 88 - 89.
The deceased was reported missing on 22 May 2015. His body has not been found.[13]
[13] Trial ts 85.
On 5 June 2015 Corbett told his son, Aaron, and son‑in‑law, Callum McDowell, that the deceased had been killed and that he (Corbett) had a large drug debt. Corbett told them that he believed that the appellant could do something to help with the debt or make it go away. On 7 June 2015 Aaron Corbett and Callum McDowell met with the appellant in a carpark in Morley. In a conversation which continued for over an hour the appellant is alleged to have confessed to his involvement in the killing of the deceased. The appellant said that he organised for the deceased to go debt collecting with him, that they had gone to the house in Alexander Heights and that he had hit the deceased over the head with a pole. He told them that the deceased had managed to run outside and ended up in the front garden. He said that he and Corbett had grabbed the deceased and kept hitting him with the pole. He said that they then dragged the deceased back inside and finished him off. He said that the deceased's body had been in his shed at some point and that later he and Corbett had driven the body up north. He said they cut up the body with a chainsaw that they had taken from a property and left the body parts in different locations. He said that he had cut the deceased's hands off because the deceased had scratched him and he did not want the police to find his DNA. He told them that he had kept the deceased's head in his car for a few days and that a passenger at some point had commented on the smell. He said he had kept the head because he was going to get a friend with a boat to get rid of it, but he got rid of it another way. He told them that he had asked his 13‑year‑old son to falsely say that he was with him on the night in question.[14]
[14] Trial ts 90.
When interviewed by police the appellant's son initially provided a false alibi for the appellant. However, he later admitted that this was a lie and that he had been asked to do so by the appellant.[15]
[15] Trial ts 90 - 91.
Prior to these events a man named James Carter had lived at the appellant's house. The appellant had told Carter about his drug dealing activities and Corbett's drug debt. He said that the deceased had offered to go into drug dealing with him and that Corbett had later learnt of this. The appellant later said that he believed that the deceased was cheating him and Corbett, that he had to sort the situation out and that he would break the deceased's legs if he had to. Sometime later Carter noted that the appellant had a scratch above one of his eyes. When asked what had happened the appellant said that he had struck his head on a bush. Carter also noticed small nicks on both of the appellant's hands.[16]
[16] Trial ts 91.
In addition to the evidence referred to above, the prosecution relied on direct evidence from Corbett. That evidence will be referred to in more detail later. In substance, Corbett's evidence was that the appellant had attacked and killed the deceased, that at one stage during the fight he had called on Corbett to assist and that Corbett had grabbed the pole and had swung it, but struck a wall and had then claimed to have sand in his eyes and gone inside.
The body of the deceased had initially been kept at Corbett's house before being moved to the appellant's shed.[17] He and the appellant had then driven the body north of Perth and had stopped to buy petrol at a station in Herne Hill. They there ran into a woman for whom they had done work on her gutters. The woman recalled the meeting and gave evidence of it. Corbett also said that on the way they had stopped near a property, that the appellant had got out and come back with a chainsaw. Corbett later pointed out to police the area where they stopped. A local resident confirmed that at around this time he had been chopping some trees with a chainsaw and that he later noticed that that chainsaw was missing.[18]
[17] Trial ts 483 - 485, 491.
[18] Trial ts 92.
The appellant was initially spoken to by police on 27 May 2015. At that time he was not a suspect and provided the police with a witness statement. In it he gave an account of his relationship with the deceased but denied ever seeing the deceased with drugs or talking to him about drugs. He admitted seeing the deceased on 19 May 2015 but denied going to Corbett's house in Alexander Heights.[19] He subsequently admitted that he did go to the house and that his statements to the contrary to the police were lies.[20] The prosecution relied upon these lies as being evidence of consciousness of guilt.[21]
[19] Trial ts 92 - 93, 94.
[20] Trial ts 1045 - 1048.
[21] Trial ts 1234 - 1235.
The appellant was arrested on 17 June 2015 and was remanded in custody. Whilst in prison he was visited by a man named Nick Wellman. He asked Mr Wellman to put the 'hard word' on Corbett to plead guilty and to say that he had no involvement in the killing. He told Mr Wellman to tell Corbett that he could say whatever he wanted about what happened so long as he got the appellant's name out of it. He told Wellman to convey to Corbett that if he did not do the right thing 'he's fucked'. He also talked about how tough Corbett would do it in prison if he did not do the right thing because there was no hiding place.[22]
[22] Trial ts 93 - 94.
In December 2015 the appellant spoke to another prisoner in Casuarina Prison. He told that prisoner that he needed someone to break his cousin Corbett's son's leg. He told the other prisoner that it was Corbett who had beaten and killed the deceased. The other prisoner had met Corbett and heard his account of the events. The appellant told the prisoner that the chainsaw had been taken by people seeking to recover property to meet Corbett's debt and that he wanted the prisoner to go and see the person who now had the chainsaw to tell him to get rid of it. The prisoner said that he needed money and that he would do both the things he was asked, that is, break Aaron Corbett's leg and ask the man who had the chainsaw to get rid of it, for $5,000 to $10,000. The appellant agreed to that price. The prisoner later received a paper in his pigeonhole with instructions from the appellant. The piece of paper was provided to the police and included details of Aaron Corbett, including a description of him and his car, and instructions as to the threats that were to be made. Some weeks later, the prisoner asked for a part payment and the appellant agreed. He told the prisoner that his sister in England was sending some money and that when the prisoner was released someone would contact him to arrange to handover the money. The prisoner gave the appellant his telephone number. There were subsequent conversations in which the arrangements were discussed, some of which were recorded by a listening device. This arrangement was the subject of the second count in the indictment.[23]
[23] Trial ts 94 - 96, 97.
Defence case
The defence case was that the appellant had picked up the deceased and attended at Corbett's house on the night of 19 May 2015, but that he had not been a party to any assault upon the deceased. His case was that on attending at the house he was himself the subject of an assault by two other men that were present along with Corbett. The appellant said that the deceased was also assaulted but that the deceased later left willingly with the other men and that that was the last that the appellant saw of him.[24]
[24] Trial ts 98, 995 - 1005, 1031 - 1035.
The appellant gave evidence. He admitted in cross-examination that he had lied to the police regarding whether he had gone to the house and that he had also asked his son to give him a false alibi. He said that he did these things not because he was guilty of murder but because he did not want his ex-partner to find out that he had left his son alone at home while he had gone out to collect drug money.[25]
[25] Trial ts 1045 - 1048.
Ground of appeal
There is a single ground of appeal. It is as follows:[26]
1. The learned trial judge erred in law by failing to warn the jury as to the dangers of convicting on the evidence of an accomplice.
[26] White Appeal Book, 6.
Evidence of Corbett
There is no doubt that on his own evidence Corbett was an accomplice. He had accepted his culpability by pleading guilty to murder. At the time of the trial he had not yet been sentenced.
Corbett said that about two hours before the appellant and the deceased arrived at his house he received a text or a phone call from the appellant saying that they were coming. The appellant said that he was bringing the deceased over and that the purpose was to 'whack him'.[27]
[27] Trial ts 479.
When they arrived the deceased came through the front door first, followed by the appellant. Corbett said that he had a pole by the front door for protection and that the appellant picked it up and attacked the deceased, hitting him several times. He said that the deceased then grabbed hold of the appellant and they went backwards through the front door. Corbett followed them and found them fighting in the garden bed. He said that the appellant called out to him for help. Corbett then dropped to his knees, picked up the metal pole and started to swing it. He said that he could not bring himself to hit anyone and that he chose to hit the wall, although he admitted that he probably did hit the deceased as well. He said that he got some sand in his eye and then got up and went back inside to wash it. He said that he had a cigarette and a drink inside and that when he came out again the appellant was trying to roll the deceased onto a piece of black plastic.[28]
[28] Trial ts 480 - 482.
The appellant told Corbett to help him pull the body inside the house. He said that the deceased was alive at that point although there were cuts, bruises and swelling, and blood on his face and clothes. He assisted the appellant in pulling the deceased from the front of the house into the lounge room. He said that the appellant went through the deceased's pockets and took personal items. The appellant told Corbett that he needed to go to Thornlie and wanted Corbett to clean up the mess. However, the appellant stayed and cleaned up the mess using towels and other items. He then wrapped the deceased in tape and moved him on a trolley into the back garden. The deceased had died by this time. The appellant changed into some of Corbett's clothes and put his own clothes into the washing machine. Corbett said a vacuum cleaner was also used by the appellant.[29]
[29] Trial ts 483 - 489.
The next day Corbett picked up the appellant and brought him back to his house. Together they put the deceased's body into Corbett's van. The deceased's body was taken to the appellant's house and placed in a shed at the back of the property. The next day the appellant asked Corbett to come to his house on the pretext that he had some money for him. Once there they placed the body into Corbett's van and drove north of Perth. They stopped at a petrol station for fuel. At the station a woman for whom Corbett and the appellant had previously done guttering work recognised and talked to them. They then drove on looking for a place to dispose of the body. They stopped at a real estate agency with a view to trying to identify vacant properties where the body could be left. They pulled over in a semi‑rural area where the appellant got out of the car, returning a short time later with a chainsaw that he said he had stolen.[30]
[30] Trial ts 491 - 498.
They then drove into a bush area where the appellant got out and, using the trolley, took the body into the bush. He then came back and took the chainsaw. Corbett heard the chainsaw start. The appellant returned sometime later carrying the deceased's hands and head. He said, 'They're not going to get me for this' and that he would dispose of the head separately later.[31]
[31] Trial ts 501 - 503.
In cross‑examination the appellant's version of what occurred was put to Corbett. Corbett denied that version and maintained his own account.[32] Towards the end of his cross‑examination it was put to him that he had an interest in giving false evidence against the appellant. The relevant passage is as follows:[33]
[32] Trial ts 567, 573 - 574, 577 - 578, 584 - 585, 588, 590 - 595, 598, 601 - 603.
[33] ts 626 - 627.
So finally, Mr Corbett, you killed Wade Dunn, didn't you? --- No.
No. You pled guilty to murdering him? --- Exactly right.
Yes? --- Because in the eyes of the law an accessory is - is - - -
No, hold on. You've pled guilty to murdering him? --- Exactly right.
Yes. All right? --- Actually I think - - -
No, no. No, don't explain. You - and - and at some stage you're going to be sentenced for that? --- Correct.
And you want as good a sentence as you can get? --- No.
No. You want - - - ? --- No.
That's not true? --- I'm - I'm happy to get whatever sentence I get.
And - and you think, don't you, that by completely putting the blame on [the appellant], you're going to get a better sentence? --- You think so? Do you - what's better than life? That's what I've got. So what - what - what's good? You tell me.
You know, don't you, that - that - - -? --- No, no, life. That's what I've got, life.
You know - - -? --- Now, how's that - how's that a better sentence? Please tell me that.
Okay. All right. You know - - -? --- Don't sit there and try and make it look like - - -
Okay. Mr Corbett, don't - don't interrupt the questions. I've - you've answered the question. You know, don't you, that a minimum term will be set for you? --- No, I don't know the system.
Do you have a lawyer? --- I do.
Yes. Has - has your lawyer talked to you about that? --- No.
Hasn't talked to you about sentencing? --- No.
Really? All right. So what I'm putting to you is that - - - ? --- No idea what I'm going to get.
What you know, don't you, is that by making yourself look good and [the appellant] looking bad, you will get a better sentence? --- No. After having some time in prison and discussing it with my family and what I'm putting them through, it's the right thing to do.
Right. Okay. And - - - ? --- That's it. Right thing to do. And that's life.
Yes. And you are lying about [the appellant] - - -? --- Please.
- - - laying one finger on Wade Dunn?--- (No audible answer).
Right? --- No.
Shortly after this exchange the cross‑examination concluded. The learned trial judge then gave a direction to the jury in the following terms:[34]
Normally in a trial, members of the jury, this is something - well, in a trial at the end of the trial when addressing you about the law, I would normally say to you, do not be concerned with what sentence may be imposed upon someone because the sentencing of somebody if they're convicted is a matter for the judge and not a matter for the jury and it's not something that should distract you at all in your deliberations.
Sentence has been mentioned in the course of this trial in a very limited basis and that is, as you heard, the suggestion has been put to Mr Corbett that he is hoping to get a lighter sentence by cooperating. I can tell you that as a matter of law, cooperation is something that would be taken into account in the sentencing of Mr Corbett but that is all that I will say about it but just as a matter of law, the fact that somebody does cooperate is something which would be taken into account in sentencing.
To that you might have regard, otherwise do not have regard to the question of what sentence would be imposed should somebody be convicted or, in Mr Corbett's case, he has pleaded, he will be sentenced, his cooperation is a factor that will be considered but that's all you need to know.
[34] Trial ts 629.
Closing addresses
In closing, the prosecutor submitted that it was open to the jury to find that Corbett had minimised his involvement. However, it did not follow that what he had said about what the appellant had done that night was not true. She noted that Corbett was frank about his drug dealing activities and the troubles he ended up in. She said that it was plain that there was a dispute between Corbett and the appellant regarding whether the appellant was responsible for any of Corbett's debt. However, she said that Corbett's account of what happened in the house and in regard to the moving and disposing of the body was supported by other evidence.[35]
[35] Trial ts 1182 - 1184.
Defence counsel submitted that the evidence did not establish that the appellant had killed the deceased and that Corbett should not be believed. He said that Corbett was the person who killed the deceased but that he now wanted to distance himself from it and not blame the people that he had enlisted to assist him. He said that Corbett would rather blame the appellant who he no longer has a relationship with.[36] Defence counsel did not make any specific submissions about the relevance of any discount that Corbett may receive for his cooperation and, in particular, for giving evidence against the appellant.
[36] Trial ts 1211, 1219.
Summing up
The learned trial judge gave the customary directions in regards to the onus and standard of proof and said that questions regarding the credibility and reliability of the witnesses were matters for the jury. His Honour said that there were some occasions when he would give a direction or sometimes a warning about the care needed in assessing particular types of evidence or the use to which it may be put. He said that if he was giving a direction or a warning of that nature it would be a direction of law and not just a comment and that he would make it clear that he was giving a direction and not simply commenting on the evidence.[37]
[37] Trial ts 1225.
His Honour noted that the jury heard evidence about drug dealing engaged in by the appellant, Corbett and the deceased. He said that the appellant had admitted that he was dealing in drugs, including crystal methylamphetamine. He said that Corbett was also dealing from late 2014 and that the deceased was tied up in that business as well. He warned the jury that the fact that the appellant was someone who used or sold drugs could not be used as evidence that he had killed anyone. He told the jury that the evidence was relevant to show the relationship between the three men and the tensions that existed between them. For example, it was relevant in considering whether the deceased was lured or brought to the house that night for the purpose of collecting money from Corbett. His Honour also said that this evidence was relevant in considering the credibility of Corbett.[38]
[38] Trial ts 1239.
Later in his summing up, his Honour referred to the fact of Corbett's plea of guilty and any benefit that he may receive in sentencing from giving evidence against the appellant. His Honour said:[39]
[39] Trial ts 1262 - 1263.
It's necessary that I make some comments about Mr Corbett's evidence.
You've been told that Mr Corbett pleaded guilty to murder. It's important for you to understand that Mr Corbett's plea of guilty cannot be used by you as evidence against [the appellant], as evidence that [the appellant] committed murder.
I said to you earlier on that when I was simply commenting on evidence and when I was giving you a direction regarding the use of evidence, I would make it clear. I wish to make it clear. You cannot use Mr Corbett's plea of guilty as evidence against [the appellant] that he committed murder.
The evidence that Mr Corbett pleaded guilty was introduced by counsel for [the appellant] because when you assess the evidence of Mr Corbett, you may take into account that he expects to receive favourable treatment - or whether he expects to receive favourable treatment in sentencing because he has pleaded guilty and given evidence against [the appellant].
That is, the evidence was introduced to question whether Mr Corbett is truthful or reliable, whether he has something to gain by putting the blame onto [the appellant]. You may use the evidence that Mr Corbett pleaded guilty for that purpose but it cannot be used as evidence against [the appellant] to prove that he is guilty of the offence charged.
Now, that warning applies only to the evidence of the plea. Mr Corbett's evidence, what he said in court, is evidence just like any other evidence in the case because he has given in oath - on oath in this courtroom. In considering your verdicts, you have to consider carefully all of the evidence of course and in considering the evidence of a witness, including Mr Corbett, you'll have regard to the way in which he gave his evidence, whether it was consistent, how it fits in with the other evidence in the case.
In assessing the evidence of Mr Corbett, you may take into account that on his own admissions, he's not of good character. He's a methamphetamine dealer. He has pleaded guilty to murder. You might also take into account, as I said, he might be seeking favourable treatment when he comes to be sentenced because he gave evidence against [the appellant].
You might consider whether he was trying to minimise his own role in the killing of Mr Dunn and in the events after Mr Dunn's death. While Mr Corbett admitted to some role in the assault on Mr Dunn and in the disposal of the body, in many respects he put himself as a horrified onlooker.
It is for you, looking at his evidence, how you assess what he said. And as for any other witness, you should consider whether his evidence fits in with the physical evidence, the evidence of the blood, the fingerprint, the CCTV. Remember Mr Dunn's blood was found in spatter patterns on the wall in the sunken lounge. How does that fit in with the evidence.
Blood matching Mr Dunn was found on items in the garage. And the defence asked you particularly to consider whether the CCTV footage shows more than one person was present at the house after [the appellant's] utility had left.
Now, those are all matters you'll take into account in assessing the evidence of Mr Corbett. You can of course accept some but not all of his evidence. It's your role to decide what you believe, what you consider to be reliable and what you don't.
After the jury retired there was a discussion between the trial judge and counsel. Counsel for the prosecution suggested that his Honour should have included an accomplice warning in his summing up. His Honour stated that he was not satisfied that this was a case that required an accomplice warning.[40] He said:[41]
I warned the jury about Mr Corbett's - the potential for advantage in testifying. I warned them or pointed out the fact that his evidence sort of down played his involvement. But is there - was I really telling them anything that they didn't already know?
[40] Trial ts 1275 - 1276.
[41] Trial ts 1276.
The appellant's competent and experienced defence counsel accepted his Honour's comments and did not seek any re‑direction.[42]
[42] Trial ts 1277.
In deciding that it was not necessary in the circumstances to give any further direction his Honour said:[43]
On the question of an accomplice warning I'll - as I said, it's something that I carefully considered in light of s 50 of the Evidence Act. As I understand the authorities, it's a warning that should not be given unless I am satisfied that it's justified in the circumstances. It's a warning which these days is generally given in the circumstances of bringing to the jury's attention something that may not otherwise have been apparent to them, and that is, that the accomplice may have something to gain by giving false evidence.
The jury in this case had been told with regard to Mr Corbett that they were to take into account that he's not of good character, that he may be seeking favourable treatment when it comes to be sentenced by giving evidence against [the appellant], and whether he was trying to minimise his own role in the killing of Mr Dunn and in the events after Mr Dunn's death.
I'm satisfied that that is the only warning that the jury is required. This is - in light of s 50 it's not a case that calls for a corroboration warning.
[43] Trial ts 1277.
Appellant's submissions
The appellant accepts that the trial judge did bring to the attention of the jury the benefit that Corbett stood to gain by assisting the prosecution case and highlighted that, by his own admission, Corbett was not a person of good character. However, it is submitted that a warning in addition to those directions was still required to avoid a perceptible risk of a miscarriage of justice in relation to the assessment of Corbett's evidence in the circumstances of this case.[44]
[44] Appellant's submissions dated 15 January 2018, par 40 (White Appeal Book, 12).
The appellant submits that his defence relied heavily on disputing the credibility of Corbett's evidence. In those circumstances it is said that a more detailed accomplice warning was both appropriate and required. It is said that this need was heightened by the fact that Corbett's evidence was integral and critical to the prosecution case. Though it was never asserted that Corbett's evidence was an indispensable link within the prosecution's argument, the appellant submits that unless the jury accepted Corbett as an honest and reliable witness they were faced with a far more difficult task of drawing inferences from the circumstantial evidence. Had the jury been warned to scrutinise Corbett's evidence closely they may have rejected it as unreliable due to his motives of self‑preservation and advantage.[45]
[45] Appellant's submissions dated 15 January 2018, par 41 - 43 (White Appeal Book, 12 - 13).
It is suggested that Corbett's evidence had the capacity to be particularly attractive to the jury given that it created a strong sequence of events which encompassed the additional physical evidence and gave the jury a narrative to follow. It is said that this narrative would be potentially appealing given the 'strong visual it created'. Particular reference was made to the graphic evidence Corbett gave of the appellant emerging from the bushes carrying a chainsaw and the deceased's severed head. This was said to be evidence that the jury 'was likely to latch onto'.[46]
[46] Appellant's submissions dated 15 January 2018, par 44 (White Appeal Book, 13).
In oral submissions senior counsel for the appellant submitted that the trial judge should have directed the jury that in assessing Corbett's evidence they must take into account his bad character (as evidenced by his admitted drug dealing), the advantage that Corbett would get in sentencing from giving evidence against the appellant and the pressure on Corbett to stick to his story given the benefit he would get. Senior counsel also submitted that the jury should have been told that they should scrutinise Corbett's evidence with great care. Without directions in these terms there was said to be a perceptible risk of a miscarriage of justice.[47]
[47] Appeal ts 14, 17 - 19.
Respondent's submissions
The respondent notes that defence counsel did not take issue with the trial judge's approach. It is difficult for an appellant to establish a miscarriage of justice where there has been no objection at trial as, generally, an appellant is bound by the conduct of his counsel at trial. A miscarriage of justice will occur only if the appellant is able to establish that it is reasonably possible that the manner in which the jury was directed may have affected the verdict.[48]
[48] Respondent's submissions dated 6 March 2018, par 3 (White Appeal Book, 24).
The respondent submits that there is no general requirement upon a trial judge to warn a jury as to the dangers of convicting on the basis of an accomplice or, for that matter, any other class of witness.[49] In order to make good the ground of appeal an appellant must establish that there was some danger in acting upon the evidence of the impugned witness and that there was a real risk that the jury would not have understood, or would have overlooked, that danger without a warning from the trial judge. It is no longer the law that the evidence of accomplices must, without anything more, be the subject of a corroboration warning.[50]
[49] Citing section 50(2)(b) of the Evidence Act.
[50] Respondent's submissions dated 6 March 2018, par 4 (White Appeal Book, 24 - 25).
The respondent submits that, in any case, the trial judge did, by way of comment, inform the jury of Corbett's potential advantage in testifying. In circumstances where comment was made, but a warning was said to have been required, it is necessary for an appellant to identify, having regard to the primary fact-finding function of the jury, which circumstances would require a direction as opposed to assistance by way of comment.[51]
[51] Respondent's submissions dated 6 March 2018, par 5 (White Appeal Book, 25).
The respondent submits that the importance or otherwise of the evidence of an impugned witness, such as an accomplice, is not a matter relevant to the giving of a warning. The necessity of a warning will depend upon whether the jury may be unable to appreciate, or may overlook, some deficiency or danger associated with the witness or with the witness's evidence. A warning will be appropriate where a danger is hidden or where, even if the danger is apparent, it is one which a jury may too readily overlook because of the attractive features of a particular witness. The respondent submits that there was no hidden or unapparent feature of Corbett's evidence, particularly in light of the comments made by the trial judge. Further, it is said to be unclear why the appellant suggests that Corbett's evidence was particularly attractive. Since Corbett was directly involved in the commission of the offence, the fact that his evidence provided a narrative is said to be unremarkable.[52]
[52] Respondent's submissions dated 6 March 2018, par 15, 17 - 18 (White Appeal Book, 27 - 28); appeal ts 24.
Relevant law
The relevant legal principles are well settled and are not in issue. They have been recently referred to in Mansfield v The State of Western Australia and Eravelly v The State of Western Australia.[53] It is unnecessary to do more than provide a brief summary of the relevant principles.
[53] Mansfield v The State of Western Australia [2017] WASCA 178; (2017) 52 WAR 233; Eravelly v The State of Western Australia [2018] WASCA 139. See also Cecez v The State of Western Australia [2007] WASCA 260; (2007) 35 WAR 344 and White v The Queen [2006] WASCA 62.
Section 50 of the Evidence Act was introduced in 1988 and amended in 1992. It provides:
(1)In this section corroboration warning in relation to a trial means a warning to the effect that it is unsafe to convict the person who is being tried on the uncorroborated evidence of one witness.
(2)On the trial of a person on indictment for an offence ‑
(a)the judge is not required by any rule of law or practice to give a corroboration warning to the jury in relation to any offence of which the person is liable to be convicted on the indictment; and
(b)the judge shall not give a corroboration warning to the jury unless the judge is satisfied that such a warning is justified in the circumstances.
Section 50 abolished the requirement to give a corroboration warning in respect of accomplice evidence (amongst other types of evidence). However, it will usually be essential in an appropriate case for a jury to receive a clear and emphatic warning from the trial judge of the potential dangers in acting on the evidence of an accomplice when the jury might not appreciate those dangers without an appropriate warning.[54] Such a warning is essential whether or not the evidence of the witness is the sole evidence and whether or not that evidence is corroborated. However those matters may well affect the form of the direction.[55]
[54] Mansfield [187].
[55] Foo v the Queen [2001] WASCA 406; (2001) 126 A Crim R 486 [30].
A warning is required whenever it is necessary to avoid a perceptible risk of a miscarriage of justice in relation to the assessment of the evidence of the accomplice which arises from the circumstances of the case.[56]
[56] Mansfield [187]; Milne v The State of Western Australia [2005] WASCA 38 [43] - [52] (Roberts Smith JA, Macolm CJ and Steytler P agreeing); White [77] - [78] (Wheeler JA); McKay v The State of Western Australia [2007] WASCA 196 [74] - [77] (Miller JA, Buss JA and Le Miere AJA agreeing).
In Mansfield Buss P noted that in Cecez he had reviewed s 50 of the Evidence Act and a number of authorities in connection with the circumstances in which a trial judge is required to give a warning to the jury.[57] His Honour then stated that:[58]
The authorities do not hold that, as a matter of course, a trial judge must instruct or warn the jury as to the need for careful scrutiny of the evidence of a prosecution witness whose evidence is significant (or even critical) to the prosecution case if the witness is of bad character or has his or her own interests to serve. The necessity or desirability for such an instruction or warning will depend, in each case, on the particular circumstances, including whether there is a risk that the jury may be unable to appreciate without assistance, or may overlook, some deficiency or danger associated with the witness or his or her evidence. (original emphasis)
[57] Mansfield [188].
[58] Mansfield [189].
The rationale for the warnings in some cases was explained by Brennan J in Carr v The Queen:[59]
A warning may be needed to ensure that the jury attributes the appropriate significance and weight to the evidence. That is a central aspect of the jury's function. In the majority of cases the assessment of the evidence can be left to the jury's experience unaided by judicial warnings but there are some occasions when a warning is needed. A warning is needed when there is a factor legitimately capable of affecting the assessment of evidence of which the judge has special knowledge, experience or awareness and there is a perceptible risk that, unless a warning about that factor is given, the jury will attribute to an important piece of evidence a significance or weight which they might not attribute to it if the warning were given. It is not possible to define a priori the circumstances in which a warning is necessary: the circumstances which show whether a perceptible risk of miscarriage of justice exists in relation to the assessment of evidence include the charge, the evidence and the conduct and atmosphere of the trial.
[59] Carr v The Queen [1988] HCA 47; (1988) 165 CLR 314, 330. See also, Eravelly v The State of Western Australia [18] - [21].
In White Wheeler JA (with whom McLure JA generally agreed) said that, in light of s 50 of the Evidence Act, where an appeal ground alleges that a warning is required it is necessary to do more than simply refer to the witness as falling within a particular class, for example an accomplice.[60] Her Honour said:[61]
…if a judge is alleged to have dealt inadequately with evidence of a 'suspect' character, it will be necessary for the ground to identify what danger there was in acting upon the evidence which jurors, bringing their collective experience of human nature to bear, and assisted by cross‑examination of the witness (where relevant) and the submissions of counsel, would not have understood, or may have overlooked, without the assistance of the judge. If, where a comment was made, a warning is said to have been required, it will be necessary to identify, having regard to the primary fact finding function of the jury, what circumstance would require a direction rather than simply assistance by way of comment, with that function.
[60] White [59].
[61] White [59].
In this case the appellant placed particular reliance on Foo. In that case Parker J, with whom Steytler J and Olsson AUJ agreed, said that it would usually be essential in an appropriate case for a jury to 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 the witness is an accomplice and which the jury might not appreciate without the warning.[62] In White Wheeler JA emphasised the words 'which the jury might not appreciate without the warning' and said that it was only if those words were given their full effect that the passage could be regarded as accurate.[63] Her Honour then said:[64]
The authorities do leave open the possibility that even where a danger is one which a jury will be able to appreciate unassisted, a warning may nevertheless be required. There may, for example, be cases in which, although the danger is apparent, it is a danger which, because of the attractive features of the particular witness, a jury may too readily overlook. However, as the warning is justified by reason of the "superior experience" of the Courts in relation to particular types of evidence which are apparently safe to act upon, it is likely that it will only be in a very small category of cases that a danger which is apparent to a jury will nevertheless require a warning to be given. (citations omitted)
[62] Foo [30].
[63] White [77] - [78].
[64] White [78].
The merits of the ground of appeal
In the circumstances of this case it was readily apparent that Corbett was an accomplice who had his own interest to serve in minimising his own involvement in the events. The prosecution's primary case was that the appellant had killed the deceased, with help from Corbett. The defence case was that the appellant was himself attacked and that Corbett had enlisted others to kill the deceased. Both the appellant and Corbett gave evidence. It could not have been more clear that Corbett's evidence was in issue, and that the defence case was that Corbett was lying to protect himself and to incriminate the appellant, and to obtain for himself a benefit in sentencing from minimising his involvement and from his cooperation with the prosecution.
The cross‑examination of Corbett did not succeed in eliciting an admission that he hoped to obtain a benefit from giving evidence against the appellant. When this was put, Corbett denied it and maintained that he was motivated by a desire to ensure that the truth was told. In these circumstances there may have been some risk that the jury would not appreciate that when Corbett came to be sentenced he would receive a benefit by way of a discount on his sentence for giving evidence as a prosecution witness, whether or not he claimed that that was a motivation. However, any such risk was obviated by the direction that the trial judge gave immediately following this passage of the cross‑examination. That direction made clear that cooperation with the prosecution, including the giving of evidence, was a factor that would be taken into account in determining Corbett's sentence.
Nor was there any risk that the jury would fail to appreciate that, as an admitted drug dealer, Corbett was a person of bad character. This was something that Corbett readily admitted in evidence. The trial judge referred to it as being a factor that the jury could take into account in assessing his credibility.
In oral submissions senior counsel for the appellant submitted that his Honour's directions to the jury were not expressed in sufficiently firm terms. It was said that his Honour should have used mandatory terms and made clear that he was giving the jury a direction rather than making a comment on the evidence.
It is true that when referring to Corbett's evidence the trial judge did use the word 'comment' and said to the jury that a factor that they 'may' take into account was that Corbett may hope for a benefit in his sentence. However, use of 'may' in this context cannot be understood as a suggestion to the jury that it was open to them to ignore Corbett's cooperation. It merely meant that it was for the jury to determine what weight this had in their assessment of the witness's credibility.
As to whether this is a case that falls into the small category where the dangers inherent in a witness's evidence are not hidden but may be overlooked because of the 'attractive features' of the witness, the only suggestion as to what made Corbett's evidence attractive was that it provided a compelling narrative. There was, however, nothing about Corbett that could be said to make him a witness whose bad character or self‑serving motives might be overlooked. He was, by his own admission, a drug dealer and a murderer. He was not a witness who sought any sympathy or was likely to elicit any. It is also relevant to note that the dramatic feature particularly relied on, the description of the appellant carrying the head and hands of the deceased, was also the subject of similar evidence from other witnesses. This was not, therefore, something unique to Corbett's evidence and that may cause the jury to be particularly drawn to it.
Having regard to the evidence of Corbett, the direction given to the jury following cross‑examination, the charge, the evidence of the other witnesses and the conduct and atmosphere of the trial, there was no realistic possibility that the jury would fail to appreciate the dangers inherent in Corbett's evidence. The directions and comments made by the trial judge were sufficient to draw attention to those dangers. This was a case where the issues were plainly apparent and readily susceptible to determination by a jury applying their own experience. The only matter of special knowledge that required explanation was that cooperation would be taken into account in determining Corbett's sentence and that was explained.
In the circumstances of this case it has not been established that there was a perceptible risk of a miscarriage of justice arising from the fact that the judge did not give a warning in regard to Corbett's evidence in stronger or different terms than he did. There was no factor capable of adversely affecting the assessment of Corbett's evidence that was not readily apparent to the jury. Nor was Corbett a witness with any attractive features that may cause the jury to overlook or underplay the factors capable of adversely affecting the reliability of his evidence. There was no perceptible risk that, without a warning, the jury, when deciding whether or not to accept Corbett's evidence, might fail to take into account the factors on which the appellant relies.
The particular circumstances that are relevant in coming to that conclusion are:
1.that the jury were made aware that Corbett was an admitted accomplice who had pleaded guilty to murder prior to the trial;
2.that the prosecution accepted in submissions that Corbett was a witness who may well have minimised his own role;
3. that the benefit to be obtained by giving evidence as a prosecution witness was put to Corbett in cross-examination (and, though denied by him, was the subject of a direction);
4.that the trial judge directed the jury immediately after the conclusion of Corbett's cross-examination that his conduct in giving evidence was a matter that would be taken into account when he came to be sentenced. The only reasonable inference that the jury could draw from this was that Corbett stood to obtain a benefit from giving evidence;
5.that evidence as to Corbett's drug dealing was clear and uncontested;
6.that in summing up the case the trial judge told the jury that the evidence regarding Corbett's drug dealing was relevant to an assessment of his credibility;
7.that the trial judge told the jury in summing up that in assessing Corbett's credibility they could take into account the fact that he expected to receive favourable treatment when sentenced because he had pleaded guilty and given evidence against the appellant. This had the effect of drawing that factor to the attention of the jury, even though framed as a comment. It could only have been understood as drawing attention to a factor that could weigh against acceptance of Corbett as a truthful witness; and
8.there was nothing about Corbett or the evidence that he gave that was attractive, in the sense that there was any risk that the jury would overlook any of the obvious dangers that attended his evidence.
Leave to appeal should be refused and the appeal dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AM
Associate to the Honourable Justice Hall21 DECEMBER 2018
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