Otto v Tasmania
[2021] TASCCA 15
•16 December 2021
[2021] TASCCA 15
| COURT: | SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL) |
| CITATION: | Otto v Tasmania [2021] TASCCA 15 |
| PARTIES: | OTTO, Margaret Anne |
| v | |
| STATE OF TASMANIA | |
| DIRECTOR OF PUBLIC PROSECUTIONS | |
| v | |
| OTTO, Margaret Anne | |
| FILE NOS: | 2685/2019 |
| 2709/2019 | |
| DELIVERED ON: | 16 December 2021 |
| DELIVERED AT: | Hobart |
| HEARING DATES: | 28, 29 September 2020 |
| JUDGMENT OF: | Brett J, Geason J, Porter AJ |
| CATCHWORDS: |
Criminal Law – Appeal and new trial – Verdict unreasonable or insupportable having regard to the evidence – Appeal allowed – Charge of murder based on instigation – Wholly circumstantial case – Where issue of appellant's state of mind in admitted discussions with perpetrator – Where issues of post-offence conduct in assisting perpetrator and lies – Not possible on the evidence to exclude reasonable hypothesis consistent with innocence – Substitution of verdict of guilty to being an accessory after the fact.
Libke v The Queen [2007] HCA 30, 230 CLR 559; M v The Queen (1994) 181 CLR 487, followed.
Pell v The Queen [2020] HCA 12, 94 ALJR 394; R v Baden-Clay [2016] HCA 35, 258 CLR 308, considered.
Richardson v The Queen [1978] Tas R 178, applied.
Criminal Code Act 1924 (Tas) ss 402(1), 403(2).
Aust Dig Criminal Law [3475]
Criminal Law – Appeal and new trial – Procedure – Miscellaneous matters – Tasmania – Whether appeal court should watch video records of police interview – Court requested to make general assessment of accused's demeanour – Court can view such material if proper forensic purpose identified – No such
purpose in this case.
Pell v The Queen [2020] HCA 12, 94 ALJR 394, followed.
CLC v The Queen [2015] NSWCCA 248; Jones v The Queen (1997) 191 CLR 439; Scott v The Queen [2020]
NSWCCA 81; SKA v The Queen [2011] HCA 13, 243 CLR, considered.
Aust Dig Criminal Law [3572]
REPRESENTATION:
Counsel:
Appellant/Respondent: A G Melick SC, C Graves, J Bloomfield Respondent/Appellant: D G Coates SC, M Wilson
Solicitors:
Respondent/Appellant: Director of Public Prosecutions
| Judgment Number: | [2021] TASCCA 15 |
| Number of paragraphs: | 258 |
Serial No 15/2021
File Nos 2685/2019
2709/2019
MARGARET ANNE OTTO v STATE OF TASMANIA
DIRECTOR OF PUBLIC PROSECUTIONS v MARGARET ANNE OTTO
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL BRETT J GEASON J PORTER AJ 16 December 2021 |
| Orders of the Court | |
| Appeal 2685/2019 |
1 Leave granted and appeal allowed.
2 Verdict of guilty of murder set aside and verdict of being an accessory after the fact to murder substituted.
3 Sentence for murder set aside.*
Appeal 2709/2019
1 Appeal by Director of Public Prosecutions against sentence dismissed.
*Note: On 17 December 2021, for the crime of being an accessory after the fact to murder, the Court recorded a conviction and sentenced the appellant to six years' imprisonment to commence on 30 May 2017. The Court ordered that she not be eligible for parole until she had served one half of that sentence.
Serial No 15/2021
File Nos 2685/2019
2709/2019
MARGARET ANNE OTTO v STATE OF TASMANIA
DIRECTOR OF PUBLIC PROSECUTIONS v MARGARET ANNE OTTO
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL BRETT J 16 December 2021 |
1 I agree with Porter AJ.
2 No 15/2021
File Nos 2685/2019
2709/2019
MARGARET ANNE OTTO v STATE OF TASMANIA
DIRECTOR OF PUBLIC PROSECUTIONS v MARGARET ANNE OTTO
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL GEASON J 16 December 2021 |
2 I have had the benefit of reading the reasons for judgment of Porter AJ. I agree with those reasons and have nothing to add.
3 No 15/2021
File Nos 2685/2019
2709/2019
MARGARET ANNE OTTO v STATE OF TASMANIA
DIRECTOR OF PUBLIC PROSECUTIONS v MARGARET ANNE OTTO
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL PORTER AJ 16 December 2021 |
| Introduction |
3 Margaret Otto was found guilty by a jury of the murder of her husband, Dwayne Davies, on 22 May 2017. She was jointly tried with Bradley Purkiss for the murder. Mr Purkiss was also found guilty. The case against Ms Otto was that she instigated Mr Purkiss to commit the crime. The case against her was a wholly circumstantial one. On 9 October 2019, Ms Otto was sentenced to 15 years' imprisonment with a non-parole period of 7½ years.
4 Ms Otto has appealed to this Court against 'conviction' on the sole ground that the verdict of the jury was unsafe and unsatisfactory. The Director of Public Prosecutions has appealed against the sentence on the basis that it was manifestly inadequate.
5 Because Ms Otto's ground of appeal does not involve a question of law, by virtue of s 401(1)(b) of the Criminal Code she needs leave to appeal. That application was not made in the notice filed, and the respondent did not raise the point. I will treat Ms Otto's appeal as encompassing an application for leave to appeal. Because of the way it was argued, the ground of appeal that the verdict was unsafe and unsatisfactory is better expressed in accordance with s 402(1) of the Code; that is, the verdict is unreasonable or cannot be supported having regard to the evidence: see Anderson v Tasmania [2020] TASCCA 11 at [125] and the cases cited.
6 For obvious reasons I will deal with Ms Otto's appeal first, and simply refer to her as the appellant. In any event, because I have reached the view that the ground of appeal is made out, there is no need for me to consider the appeal against sentence. The appellant accepts that if her appeal succeeds, the Court should substitute a verdict of guilty of being an accessory after the fact to murder contrary to s 161 of the Code. That course is authorised by s 403(2) of the Code if it appears that the jury must have been satisfied of facts which prove the alternative crime. That provision also authorises this Court to pass sentence in respect of the substituted crime.
A preliminary point – the appellant's police interviews
7 The appellant did not give evidence in her trial. Video recordings of three police interviews were tendered as exhibits. The Crown relied on parts of these interviews, while the appellant relied on exculpatory statements made. The appellant's position to the jury was the same one that she takes in this Court; that is, she was not guilty of murder but guilty of being an accessory after the fact. Mr Purkiss gave evidence in his trial. He denied responsibility for killing Mr Davies.
8 The appellant was interviewed by police officers on 30 May 2017 for 7½ hours, and again the next day for 2½ hours. She was further interviewed on 1 June 2017 for 90 minutes. The video recordings
of these interviews – with mostly minor edits[1] – were played to the jury. The jury was also given
redacted transcripts. Senior counsel for the appellant submitted that the members of this Court should
watch the video recordings. This was said to be necessary to put various statements in context – the
4 No 15/2021
[1] The trial judge refused to admit the last 14 minutes of the third interview, ruling that its use would be unfair because of the appellant's distress, the form of the questioning and the minimal probative value of the evidence.
circumstances in which certain comments were made and the way they were made so as to "get the true
sense of what was said" – and so that we could assess the appellant's general demeanour.
9 The parties accept that in the first part of the first interview, the appellant denied any knowledge of the killing and told lies or fabricated things designed to suggest that Mr Davies may have killed himself or had voluntarily disappeared. At the very least she failed to disclose her knowledge of what had happened.
10 At a point about three quarters of the way through the first interview, the appellant is asked whether she was telling the truth. Saying "yes", she was encouraged by the officer to "tell the truth as it was then a good time to do so." The appellant then said that she knew nothing of Purkiss's intentions of the killing until after it happened. (A point of the interview I will call the 'transition point'.) She went on to explain at length the prelude to, and aftermath of, the killing. She denied any participation in or knowledge of any plan or intention on the part of Purkiss to kill Mr Davies. She admitted doing things which clearly made her an accessory after the fact to murder.
11 When pressed, senior counsel for the appellant could not identify any particular part or parts of the interviews that needed to be watched in order to properly understand what appears in the transcript, nor for any other purpose other than general context and the appellant's demeanour after the change in position.
12 The respondent opposes the submission that this Court watch the interviews, submitting that the only identified reason for doing so was to assess the appellant's credibility; that is not a function of this Court but the sole province of the jury. The respondent notes that the jury had the benefit of watching the appellant's reactions to the recordings as they were played, and submits that in deciding the appeal the Court has to proceed on the basis that the jury did not believe the appellant's exculpatory statements. The respondent expressly says that we should not watch those parts of the interviews that were identified and relied on by the prosecutor in her closing address to the jury as revealing relevant demeanour said to support the Crown case.
13 In making these submissions, the respondent acknowledges that the video-recordings were exhibits in the trial and were recordings of out of court statements by the accused; exhibits which the jury had during its deliberations, not being recordings of the evidence of witnesses whether pre-recorded or otherwise.
14 At one point, given the scope of the proposed task, there was discussion about the provision of representative excerpts, but the respondent's position was that if we took the view that principle permitted us to watch the recordings, we should watch the entirety. In the end, the Court reserved its decision on the point, saying that if we decided that the recordings should be watched, we would notify the parties, and give them the opportunity to make further submissions. For the following reasons, I do not think it is necessary to watch the recordings.
| 15 | Perhaps the best place to start is the test to be applied in deciding the appeal. The seminal case is M v The Queen (1994) 181 CLR 487. In later cases, such as Libke v The Queen [2007] HCA 30, 230 CLR 559, the Court sought to clarify and reinforce the approach set out in M. In Pell v The Queen | |
|
"[43] [T]he Court of Appeal majority correctly noted that the approach that an appellate court must take when addressing 'the unreasonableness ground' was authoritatively stated in the joint reasons of Mason CJ, Deane, Dawson and Toohey JJ in M. The court must ask itself:
'whether it thinks that upon the whole of the evidence it was open to the jury to be
satisfied beyond reasonable doubt that the accused was guilty'.5 No 15/2021
[44] The Court of Appeal majority went on to note that in Libke v The Queen, Hayne J (with whom Gleeson CJ and Heydon J agreed) elucidated the M test in these terms:
'But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must as distinct from might, have entertained a doubt about the appellant's guilt.' (Footnote omitted; emphasis in original.)
[45] As their Honours observed, to say that a jury 'must have had a doubt' is another
way of saying that it was 'not reasonably open' to the jury to be satisfied beyond
reasonable doubt of the commission of the offence. Libke did not depart from M."
16 In M at [492]-[493], the Court said that an appellate court must undertake its own independent assessment of the evidence and determine whether, notwithstanding there is evidence upon which a jury might convict, none the less it would be dangerous to allow the verdict to stand. In answering the question whether it was open to the jury to be satisfied of guilt, the court needs to pay full regard to both the fact that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and that the jury has had the benefit of seeing and hearing the witnesses. See also MFA v The Queen [2002] HCA 53, 213 CLR 606 at [48]. As to the benefit enjoyed by the jury, in Whitehorn v The Queen (1983) 152 CLR 657 at 688 Dawson J (Gibbs CJ and Brennan J agreeing) said the jury performs its function within the atmosphere of a particular trial which it may not be possible to reproduce upon appeal.
17 This position as to the role of the jury was restated in R v Baden-Clay [2016] HCA 35, 258 CLR 308 at [65], where the Court said that given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community, setting aside a verdict on this ground is a serious step. In Whitehorn at 687 Dawson J noted that such power is to be exercised with "caution and discrimination", saying this observation would be largely meaningless if the question were merely whether the appeal court itself experienced a doubt.
18 In the Victorian Court of Appeal in Pell [2019] VSCA 186 at [663] Weinberg JA (in dissent) set out a two-step process. His Honour said the Court is to carry out an independent assessment of the whole of the evidence, and having done so, each member of the Court must consider whether there is,
in the mind of that particular judge a ‘doubt’ as to guilt. If such a doubt exists, it will ordinarily be a
doubt that the jury ought to have had. In that event, a second question must be asked, namely, whether
that ‘doubt’ persists notwithstanding the advantages over the appellate court that are normally ascribed
to the jury. That is consistent with M v The Queen at [494]-[495].
19 In R v Baden-Clay, in the context of an "unreasonable" verdict in the M v The Queen sense, the Court restated the "well settled" principles concerning cases that turn upon circumstantial evidence. At [46] their Honours quoted from the judgment of Gibbs, Stephen and Mason JJ in Barca v The Queen (1975) 133 CLR 82 at 104:
"When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are 'such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused': Peacock v The King (1911) 13 CLR 619 at 634. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be 'the only rational inference that the circumstances would enable them to draw': Plomp v The Queen (1963) 110 CLR 234 at 252; see also Thomas v The Queen (1960) 102 CLR 584 at 605-606."
20 At [47], the Court in Baden-Clay continued (omitting references):
"For an inference to be reasonable, it 'must rest upon something more than mere
conjecture. The bare possibility of innocence should not prevent a jury from finding
the prisoner guilty, if the inference of guilt is the only inference open to reasonable men6 No 15/2021
upon a consideration of all the facts in evidence' (emphasis added). Further, 'in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence' (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal."
21 I now turn to the point of the use to which electronically recorded material may be put. Each party in this case referred to Pell. The appellant sought to distinguish the facts; the respondent relies on it in terms of principle. Neither party cited any authority specifically relating to the present situation; that is, where there is a recording of a police interview with the accused, tendered as an exhibit and with the jury during its deliberations, along with the means to re-watch it. As will emerge, there are statements of general principle that mainly relate to recordings of witnesses' evidence in court, but arguably encompass video recording of interviews with an accused. There are some cases in which reference is made to the specific point, but there is nothing definitive.
22 In Pell, at [36], by reference to SKA v The Queen [2011] HCA 13, 243 CLR 400 per French CJ, Gummow and Kiefel JJ at [27]-[35], the Court said that a position in which the existence of recordings was enough to make it appropriate for them to be watched by an appeal court, was not one that should generally be adopted. The Court continued:
"There may be cases where there is something particular in the video-recording that is apt to affect an appellate court's assessment of the evidence, which can only be discerned visually or by sound. In such cases, there will be a real forensic purpose to the appellate court's examination of the video-recording. But such cases will be exceptional, and ordinarily it would be expected that the forensic purpose that justifies such a course will be adopted by the parties, rather than upon independent scrutiny by the members of the court. SKA v The Queen at [30]-[31]; see also at [116] per Crennan J."
23 The Court in Pell at [37] went on to say that the assessment of the credibility of a witness by the jury on the basis of what it has seen and heard is within the province of the jury as representative of the community, and the appellate functions do not involve the substitution of trial by an appeal court for trial by a jury: "[S]o, generally speaking the appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of witnesses where the assessment is dependent upon the evaluation of the witnesses in the witness box. ... Judges of courts of criminal appeal do not perform the same function in the same way as the jury, or with the same advantages that the jury brings to the discharge of its function."
24 At [38], the Court continued (omitting references):
It should be understood that when the joint reasons in M v The Queen spoke of the jury's 'advantage in seeing and hearing the witnesses' as being 'capable of resolving a doubt experienced by a court of criminal appeal' as to the guilt of the accused, their Honours were not implying that it was only because there were, at that time, no practical means of enabling a court of criminal appeal to see and hear the evidence of the witnesses at trial that the jury's assessment of the credibility of the witnesses was of such potentially critical importance. The assessment of the weight to be accorded to a witness' evidence by reference to the manner in which it was given by the witness has always been, and remains, the province of the jury. Rather, their Honours in M were remarking upon the functional or 'constitutional' demarcation between the province of the jury and the province of the appellate court. That demarcation has not been superseded by the improvements in technology that have made the video-recording of witnesses possible."
25 In Pell, of course, the specific reference is to the evidence of witnesses. In SKA, the issue arose in relation to the video recording of a police interview with the complainant, the playing of which in the trial formed the evidence-in-chief. In SKA at [29]-[30], French CJ, Gummow and Kiefel JJ said that a relevant consideration in an appellate court not viewing such material was the risk of imbalance, given
7 No 15/2021
that the court would not be viewing the entirety of the complainant's evidence, nor the evidence of other
witnesses.26 In CLC v The Queen [2015] NSWCCA 248 at [77], Basten JA noted the need for an identified reason to view a recording of a witness' evidence, and the "imbalance" consideration, but said it was not in the interests of justice to allow an appellant whose only ground of appeal requires the appellate court to form a view as to the effect of the whole of the evidence to deny the appellate court access to part of the record of that evidence At [78], his Honour observed there were practical implications in viewing recorded material. In that case, viewing the video recordings did not give rise to a practical burden, but said that where the court is invited to view lengthy video recordings, other considerations may arise.
27 In that case, Basten JA chose to watch one hour of recordings being videos of the child complainant's interviews with police, played as evidence-in-chief, but did not watch the cross- examination. Wilson J and RS Hulme AJ, elected not to watch anything, Wilson J citing "significant ramifications" for the workload of an appellate court if recordings were routinely watched along with, in any event, the need for a compelling reason to do so. See also AZ v The Queen [2018] NSWCCA 294 in which all members of the Court watched pre-recorded evidence of a child complainant for the purposes of observing non-verbal responses and assessing suggestions of tiredness and confusion.
28 Before specifically dealing with police interviews with an accused, I should go back to SKA. In that case, the appellant suggested it was commonplace for an appeal court to view such a video as was in issue in that case; a complainant's pre-recorded evidence that was played as evidence-in-chief. One case cited in support of the submission was CSR Ltd v Della Maddalena [2006] HCA 2, 80 ALJ 458. That was a personal injuries case in which the appellate court, and three justices of the High Court, watched a surveillance video of the plaintiff's activities.
29 In SKA, French CJ, Gummow and Kiefel JJ said CSR Ltd did not support the submission, saying at [33] that the two High Court justices (Callinan and Heydon JJ) had explained they watched it because it "loomed so large" in the appellate court's judgment. Their Honours noted that the third, Kirby J (with whom Gleeson CJ agreed), did not give any reason, but said his Honour's reason is likely to have been the same. At [116], Crennan J noted the submission based on CSR Ltd, but said it was unnecessary to deal with it in any detail as no forensic purpose for watching the video had been identified.
30 With great respect, I would have thought it quite routine for an appellate court to review surveillance footage of a plaintiff's activities in a personal injuries case on appeal in relation to damages, where the nature and extent of the plaintiff's physical disabilities is an issue: see for instance Marlow v Walsh [2008] TASSC 58,18 Tas R 153 at [133]-[134]. The forensic purpose exists because the video is relevant for the physical activities shown, not for gestures and the like that accompany statements, or the general manner in which things are said. In CSR Ltd at [102], Hayne J said "It may readily be accepted that the Full Court was in as good a position as the trial judge to decide what the video surveillance evidence showed. The Court could and did view the tapes for itself."
31 As to police interviews with an accused, in Jones v The Queen (1997) 191 CLR 439 – a case in which the Court considered the test formulated in M v The Queen – Kirby J (at 458) noted that the
videotape of a police interview had been made available to the Court, and said he had watched it. None of the other members of the Court mentioned it. The transcript of the appeal, [1999] HCA Trans 238, shows that counsel for the respondent submitted that the Court, if it were "in any doubt about the unsafe and unsatisfactory question" it should look at the videotape before finally deciding the matter. The Court was told that counsel for the appellant had looked at it, and that "We think that it is useful".
32 In Scott v The Queen [2020] NSWCCA 81, the issue arose as to whether the members of the appellate court should watch and listen to a number of recordings that were tendered at the trial. These included a recording of a conversation between the complainant and her mother, the complainant's
8 No 15/2021
interview with police, the complainant's pre-recorded evidence, and the electronically recorded police interview with the appellant. After referring to SKA and Pell, Hamill J (with whom Brereton JA and Fagan J agreed) said at [53] that it was appropriate that the court view and listen to the material. The critical factor was that there was an identified purpose in looking at the recorded material relating to the complainant as there were a number of occasions on which what she was saying or indicating could only be visually discerned.
33 Hamill J said that once he determined it was appropriate to watch the complainant's evidence- in-chief, "balance and fairness required the cross-examination and appellant's [recorded police interview] should be subject to the same scrutiny". His Honour went on to say that in making an independent evaluation of that evidence, he did not lose sight of the fact that the jury found the complainant to be credible and reliable, and he did not attempt to duplicate the function of the jury in its assessment of the credibility of witnesses.
34 An aspect of the advantages enjoyed by the jury was identified by the respondent in the present case. It was submitted, and I would have to accept, that the jury had the advantage of seeing any reaction on the part of the accused when the interviews were played in court. Whether anything notable did or did not happen does not seem to be to the point. In CSR Ltd at [179], Callinan and Heydon JJ observed that the appellate court judges were in an equally good position to make an assessment of the video recordings when compared with the other evidence, as the trial judge. But their Honours continued on to say that this opportunity fell far short of the real advantage that the trial judge enjoyed of actually seeing and hearing the evidence "particularly the respondent, and of observing his reaction to each segment of the film as it was shown to him".
35 In all of this, it seems clear that the accepted approach to watching recordings of witnesses' evidence, pre-recorded or otherwise, extends to such material as police interviews of accused persons where the relevance is what was said, and accompany demeanour may well be a factor.
36 It follows that this Court could watch the videos if a proper forensic purpose had been identified, and subject to practical considerations. General references to "context" and "demeanour" do not qualify as proper forensic purposes. Accordingly, in the absence of agreement and in the absence of such identification, this Court should not watch the videos. Additionally, in this case, the Court would have to allow about 11 hours for the watching process; far longer than an assimilation of the transcript would take, particularly as each party has identified passages they rely on.
37 I should add that the jury's task of assessing the appellant's demeanour in the interviews was not a straightforward one. The Crown prosecutor argued to the jury that in the first four hour period of
the first interview the appellant has control of the interview: "… she thinks that the police are accepting
everything that she says, look at her body language, she's open, relaxed, feet crossed at the ankles, with her arm back on the back of the couch, she's leaning forward talking to [the officers], she says nothing about what she actually knows happened".
38 Senior counsel for the appellant at trial submitted to the jury that they had to be careful, for reasons he explained, about drawing inferences from the appellant's demeanour in the first part of the first interview; that is, before the transition point. Counsel invited the jury to consider her demeanour in the second part of the first interview, when her demeanour changed considerably, and in the third interview in particular in which, it was said, the appellant "was in a foetal position, obviously distressed and crying the whole way through."
The Court's task in this case
39 That point having been resolved, I will address this Court's approach to its task in this case. It will be recalled that in the debate about the recordings, the respondent submitted that credibility is not a matter for this Court, and we must proceed on the basis that the jury did not believe the appellant's
9 No 15/2021
claims in the interviews that she did not participate in the plan to kill Mr Davies. That means that when considering whether there was a reasonable hypothesis consistent with innocence, this Court had to take into account that the jury did not believe the appellant's exculpatory statements. Additionally, in line with the High Court pronouncements noted above, the respondent highlighted the role of the jury as the primary decision-maker, and the caution to be exercised before setting aside a verdict on this ground. Some of these matters need to be discussed, particularly because of the nature of this case.
40 First, as to the question of credibility, taken literally and to its fullest extent the submission cannot be accepted. Credibility is a matter for an appellate court to the extent that it can be determined from the transcript. That seems obvious; otherwise an appeal on the present type of ground where there is an aspect of credibility would be futile. An appellate court may have regard to illogicalities, implausibilities and inconsistencies, both internal and measured against unchallenged evidence. See for instance M at 495-500; Pell at [118]-[119], [125]-[127]. But the submission is right to the extent that credibility findings based on demeanour are beyond the Court's reach, and it is correct to the extent that an appellate court must recognise the advantages of the jury in seeing and hearing the evidence.
41 From the perspective of appellate courts dealing with this type of appeal ground, the present case is different to many. In Pell at [39], the Court said that in a case such as the one it was dealing with, the function of an intermediate appellate court in determining the ground of appeal "proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment, the court is satisfied the jury acting rationally, ought nonetheless to have entertained a reasonable doubt as to guilt."
42 This case is unlike Pell and similar cases in which proof of guilt beyond reasonable doubt depends on the credibility of one or more prosecution witnesses. In this case, cross-examination on behalf of the appellant was directed to clarification and establishing context. Very little, if anything, of any substance in the Crown's evidence was disputed by the appellant. (Of course, there was the evidence of Purkiss on which neither party relied, and to which I will return.) This presents as a case that is purely circumstantial "resting on inferences equally able to be assessed by an appellate court as by the jury":
Hawi v The Queen [2014] NSWCCA 83, 244 A Crim R 169 at [483] per McCallum J – a circumstantial
case but where the appellant gave evidence in the trial.
43 Given those matters, there is a need to identify the advantages that the jury enjoyed and which might resolve any reasonable doubt experienced by this Court adversely to the appellant. For the reasons given, those advantages do not include relevant demeanour assessments of Crown witnesses. The advantages were that the jury watched the appellant's interviews being played in open court, and sat through the whole trial as it unfolded. They were able to observe the appellant's demeanour in the interviews and in court, and absorb the atmosphere of the trial. I do not say that intending to diminish the jury's paramount role as the tribunal of fact.
44 In conducting an independent review of the evidence, it is the whole of the evidence that is to be considered. As to the police interviews, it should be borne in mind that these out of court statements were tendered as exceptions to the hearsay rule. They contained admissions contrary to interest including statements said to be lies told out of a consciousness of guilt. In relation to the first part of the first interview, the Crown also relied on the truthfulness of statements said to show motive. The further part of the first interview and the subsequent interviews contain admissions as to being an accessory after the fact to murder, but exculpatory statements in relation to murder, which the Crown says should be disbelieved.
45 It is self-evident that the jury did not positively believe the appellant's exculpatory statements. But if it did not, it had to put them to one side and still had to consider whether the Crown had proved its case beyond reasonable doubt. It goes without saying that the appellant did not have to prove her version of events. There is no onus on an accused either to establish that some inference other than that
10 No 15/2021
of guilt should reasonably be drawn from the evidence, or to prove particular facts that would tend to support such an inference: "If the jury think that the evidence as a whole is susceptible of a reasonable explanation other than that the accused committed the crime, the accused is entitled to be acquitted": Barca (above) at [12]; Baden-Clay (above) at [62].
46 For an acquittal on the basis that there is an inference consistent with innocence reasonably open on the evidence, it does not mean that a jury has to infer that an event, the subject of a suggested hypothesis, in fact occurred before relying on, or making allowance for, the possibility of such an event: R v McIntyre [2000] NSWCCA 6, 111 A Crim R 211 at [31]; Kaliyanda v The Queen [2007] NSWCCA 300 at [63]-[66], Davies The Queen [2019] VSCA 66 at [499]. The question for this Court, framed to accommodate a circumstantial case, is whether it was open for the jury to have excluded all reasonable hypotheses consistent with innocence.
47 Knight v The Queen (1992) 175 CLR 495 was a case of murder where a critical question was whether the accused fired a shot with intent to kill, that state of mind being a matter of inference to be drawn from the circumstances. The accused's version was that he struggled with the deceased while holding a rifle and he was not aware that the rifle had been fired, or the deceased shot, and did not intend to kill anybody. His conduct afterwards was part of the case against him, and he provided explanations for it. At 504, Mason CJ, Dawson and Toohey JJ said the jury "may well have disbelieved the appellant's
story" but even assuming the jury decided matters against him, it was not possible to exclude – as not
being reasonably open on the evidence – that the shot was fired without the requisite intent.48 That the appellant's exculpatory statements in the interviews were not positively believed by the jury does not mean the material can reasonably be disregarded by this Court as having no bearing on the availability of hypotheses consistent with the appellant's innocence of murder: Baden-Clay at [57]. It is clear that the required independent assessment includes a consideration of the cogency of any evidence of an accused: see for instance M per Mason CJ, Deane, Dawson and Toohey JJ at 499-500; Jones (above) per Gaudron, McHugh and Gummow JJ at 449-450. There is no reason such assessment would not extend to exculpatory out of court statements made by an accused which have become part of the Crown case.
49 It is on those bases that this appellate review of all the material takes place, and consideration of the jury's advantages occurs. If the Court reaches the view that there is a reasonable explanation of all the circumstances consistent with innocence of murder, it would only reject the appeal if it was satisfied that the jury's advantages were capable of resolving that doubt. Those advantages do not arise from seeing and hearing Crown witnesses, in the sense that the credibility of those witnesses was not an issue. The advantages arise from watching the videos of the interviews played in the courtroom in the appellant's presence, and her general demeanour in the atmosphere of the trial. Where the onus of proof rests needs to be steadfastly borne in mind. All of that said, I do not mean to diminish the caution and circumspection needed before the serious step of setting aside the verdict is taken.
An outline of the case
50 The following is based on an outline of the evidence in the State's written submissions, there being no real issue about the essential facts. I have omitted argument and included more material. Because of the nature of the case, it is necessary to provide quite a lot of detail.
51 The appellant and Mr Davies, Dwayne Davies, had been in a relationship for almost 20 years, and had been married for four years. Mr Davies was known to many as 'Doc'. They had one child, Brady Davies. (Dwayne Davies was not Brady's biological father but had raised him as his son since Brady was two years old.) At the time of the crime the appellant and Mr Davies lived together at 68 Laurel Street, Risdon Vale. At the rear of the property was a large workshop shed which was used by Mr Davies. Brady Davies had moved out of home and lived with his partner and child.
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52 Mr Purkiss (Purkiss) lived with his partner, Jill Roberts, at 60 Cockatoo Gully Road, Elderslie, which is approximately 40 km away from Risdon Vale. Purkiss's father, Anthony Purkiss, lived at 21 Nicholson Street, New Norfolk.
53 Evidence indicated that during the course of their relationship Mr Davies was very needy of the appellant's time and attention and the relationship had been troubled by financial problems. The deceased worked as a tattoo artist, in his own studio in Bridgewater. However, in the lead-up to his death he had not been working consistently because of health problems, and consequently the tattoo studio was sustaining increasing debt.
54 In the months leading up to May 2017, the evidence suggested the appellant was struggling with the relationship. In her evidence, Michelle Peck, the appellant's good friend, said she saw the appellant at a funeral in November 2016. Ms Peck said the appellant looked terrible, had lost a lot of weight, her eyes were black, and she looked tired and worn out. The appellant confided in Ms Peck at the time, that Mr Davies had changed a lot, that he had numerous personalities, she did not know who he was anymore and that he talked about suicide quite a lot. The appellant said he was using marijuana again and thought he might be schizophrenic.
55 The appellant also told Ms Peck that Mr Davies had not dealt well with their son leaving home and having his own child. Ms Peck said that Mr Davies was a fairly intimidating person and there had been few people that he would take notice of. There had been his brother Corey and uncle Wayne both of whom had died by May 2017; there was also a friend who then lived in Queensland. Ms Peck also said that although she had not heard much about Mr Davies' best mate, Purkiss, she could tell that the appellant trusted him. Ms Peck thought that the appellant wanted to leave Mr Davies, but that she did not know how.
56 By early 2017, when the appellant commenced her new job at Fair Dinkum Sheds, she told one workmate that her partner may have had depression or perhaps bipolar disorder, and told another that her husband had a history of mental health problems, and had made the comment, in a jocular tone, that someone should have gone back and stopped his grandparents from procreating.
57 The appellant and Mr Davies had experienced financial difficulties quite early on in their relationship. They had previously had to sell a house because of debt that the appellant attributed to Mr Davies. The appellant had different employment then and was buying a house. The deceased had not been working much, and the appellant was looking at losing the house. Ms Peck had lent her $20,000 to make improvements to the property before it was put on the market so that she did not make a loss. However, the appellant considered that they had "lost" the house because of Mr Davies' debts. (The Crown case was that this was something that was weighing on her mind in May 2017.)
58 The deceased suffered from a physical condition that had affected his ability to work as a
tattooist. The appellant had told Kelly Goss – Mr Davies' sister – that he had missed lots of work due to
tendonitis. At Easter 2017 the appellant had declined an invitation to Ms Goss's house because she was trying to work out their financial difficulties. She said "she couldn't wave the magic wand anymore", and mentioned bankruptcy. The deceased could not go either, as he was working. He had also discussed bankruptcy with Karen Davies, his stepmother, a couple of days before his death.
59 During the police examination of the Risdon Vale home in the course of the investigation, a document was discovered which revealed the extent of their combined debt. They had a business loan and a tax bill, as well as Mr Davies' credit card debts, totalling between $264,000 and $320,000
60 The appellant's employer, Paul Purdon, took an interest in his staff and often checked on their wellbeing. The appellant spoke openly with Mr Purdon about the difficulties she was having at home with Mr Davies. As an "overview", he was given to understand that Mr Davies was moody, and the appellant had difficulty in knowing "when his moods would be real bad". From what the appellant said,
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Mr Davies might be suffering from anxiety or depression but that he was reluctant to take medication lest it interfere with his artistic flair. She had said he could be aggressive; whether physical or just verbal Mr Purdon could not recall. The appellant indicated Mr Davies could be demanding; he would say at any time of the day that he needed a massage and she would have to respond, and massage him to keep the peace. Mr Purdon said that on either Thursday 25 May or Friday 26 May 2017, the appellant made a passing comment, something similar to "It would just be easier if he was dead".[2]
[2] Mr Purdon's initial evidence was that the appellant said something to the effect that she would be better off without him (Mr Davies) if he was not there. When cross-examined by Crown counsel with leave, he agreed he had told police the different version, and that it would be correct.
61 Purkiss and Mr Davies met through the tattoo studio, where Purkiss had been a customer for a number of years. The pair developed a friendship which ultimately led to them spending a lot of time together. In turn, the appellant was introduced to Purkiss and they became close when Purkiss assisted in renovating the bathroom of the appellant and Mr Davies' Risdon Vale home. Purkiss became frustrated with Mr Davies smoking his cannabis, constantly visiting his Elderslie home and, apparently, objecting to his perceived poor work ethic. Purkiss complained to a work mate of Mr Davies that he felt used by him.
62 Purkiss' partner at the time, Jill Roberts, said she found Mr Davies a bit confronting, bordering on intimidating. She indicated to Purkiss on more than one occasion, that she was unhappy with his frequent visits. Ms Roberts said that in April or May 2017, she had told Purkiss that she did not wish their relationship to continue. They remained living at the address and Purkiss was spending a lot of time with Mr Davies. Ms Roberts found the appellant to be quite pleasant and an easy person to talk to. She sometimes went to her home with Mr Davies; the men would leave the two women together. Ms Roberts touched on how she, Ms Roberts, found it challenging to be with Mr Davies.
63 Ms Roberts discussed with Purkiss what she described as the appellant's "dysfunctional relationship". Ms Roberts mentioned to him that as she used to work in "community services" and knew some people there; she could point the appellant in the right direction to get some assistance. On Saturday, 17 May 2017, Ms Roberts arranged a meeting with the appellant at a café in Moonah. The appellant said that things with her husband had become a little bit harder for her in about the last 18 months. She said she had a new job, she was quite busy learning the job, and she seemed "quite upbeat about that side of her life". The appellant did not seem desperate to her at that time to bring the relationship to an end. She did not offer to arrange any community-based support, although the appellant later told police that Ms Roberts seemed to be concerned about her.
64 As later revealed to police by the appellant, towards the end of 2016, Purkiss and the appellant had a brief romantic relationship. They twice had sexual intercourse. Although this relationship ended fairly quickly, the pair remained close.
Friday, 26 May 2017
65 On Friday, 26 May 2017 the appellant got ready to leave for work early, as she usually did. According to what the appellant later told police, Mr Davies woke up before she left, and "had a meltdown" because his coconut milk was warm. In an interview, the appellant said she left for work thinking "so I left with that sort of morning and I was like oh God what am I going to come home to tonight". Michelle Peck had come to Hobart on the preceding Wednesday. Her aunt had died and the funeral was scheduled for that Friday. Ms Peck had contacted the appellant who knew her aunt. The funeral was for the middle of the day, and the appellant had said she would to try to attend.
66 At 9.30am the appellant phoned Purkiss from her work phone. The call lasted for about 30 minutes. The appellant had sent a text message to Purkiss the previous afternoon at 3.16pm, and
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earlier on 19 May. Before their phones were seized by police, both of these messages had been deleted
from both the appellant's and Purkiss's mobile phones.[3][3] The appellant's phone records in evidence were made up of outgoing communications from 19 May to 29 May, and incoming on
67 At 11.24am, the appellant sent a message to Ms Peck saying, "thinking of u sending lots of love sorry I can't be with u today someone is of sick was hoping I could sneak out but to busy xxxxx" [sic]. Alan Sharplin was a work colleague. The appellant approached him in the morning and told him that a family member was coming that day, and that it would be over the lunch hour. In essence she asked him to cover for her; to look after the phones and anybody who came in into the building. Later, at 12.16pm, Purkiss went to the appellant's workplace. The appellant's colleagues had not seen him there before, having only ever seen Mr Davies or the appellant's son visit her.
68 When Purkiss arrived at the appellant's workplace, the appellant met him in the reception area and gave him a kiss on the cheek. They went into an office, closed the door and were there for around 45 minutes. The appellant's colleague, Luke Wood, had never seen the appellant greet anyone in the workplace with a kiss other than her husband.
69 In her police interviews, the appellant explains what was said during this conversation. Purkiss also gave evidence about it. I will later deal with that material in greater detail. For present purposes, I simply note that the appellant admitted at one point saying to Purkiss she wished Mr Davies was dead, but stated to police that she did not mean it; it was the only solution where she felt she might have actual peace. The appellant repeatedly denied that she wanted or instigated Purkiss to kill Mr Davies, that she was part of any plan, had nothing to do with the death and did not help in moving the body.
70 CCTV shows Purkiss leaving the appellant's workplace at 1.02 pm. After leaving the appellant's work place, Purkiss travelled to New Norfolk and visited his father. The visit was unscheduled. His father owned a number of firearms, including a 12 gauge shotgun, the type of weapon used to kill Mr Davies.
71 There was evidence that indicated that Purkiss had access to his father's firearms. In the weeks before he died, Mr Davies had given his friend Emma Jackson (whose then partner had access to firearms) a list of firearms that a friend of Mr Davies wanted. The list included a list of firearms that could be swapped for those sought. The list of items that could be swapped were the type of firearms and ammunition that Purkiss's father owned. The handwriting in the note was not Mr Davies'. Jill Roberts gave evidence that the handwriting on the "gun note" appeared to be that of Purkiss.
72 The Crown case was that, as a matter of inference, during this time on the Friday afternoon Purkiss obtained the weapon from his father's house, or some other location. Whilst with his father, Purkiss suggested that they go shooting on Saturday night at a large rural farming property at Levendale they would often attend. The Crown case was that the plan was made then, in order to secure a location at which to dispose of the body.
73 The Crown case was that after seeing his father and obtaining a weapon, Purkiss called the appellant to confirm that he had obtained a weapon. At 3.44pm Purkiss called the appellant's mobile telephone. The call lasted for 6 seconds. At 3.46pm the appellant used her work phone to call Purkiss. They spoke for just short of 5 minutes.
74 During the day on Friday Purkiss also went to the tattoo studio at Bridgewater and spoke to Mr Davies. Purkiss said that there were two Harley Davidsons coming down to his house that night to look at with a view to purchasing, and that he needed Mr Davies to be there as Mr Davies was his "Harley man". This was a ruse by which to get Mr Davies to his house that night.
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75 CCTV from 68 Laurel Street, Risdon Vale showed that Mr Davies arrived home at 4.51pm. He parked his white Toyota van in the driveway of the property, and walked inside the residence. The appellant arrived at home at 5.25 pm. She parked her silver Hyundai SUV on the street outside 68 Laurel Street.
76 At 5.30pm Brady Davies – the son of the appellant and Mr Davies – drove his utility vehicle
into the driveway behind the Toyota van. He opened the rear passenger side door and removed his infant son, Saxon, from his car seat, before walking up the front steps and inside the house. A video of family activity at about this time was tendered in evidence as part of the Crown case. Brady Davies holding Saxon, Dwayne Davies, and the appellant all walk back towards the house from the shed. Later, Dwayne Davies walks towards and into the shed whilst holding Saxon, returning a few minutes later still holding his grandson in both arms.
77 Between 5.29pm and 6.59pm, Purkiss sent numerous messages to Mr Davies encouraging him to hurry up and come around to look at the Harley Davidson motor cycles. (With the exception of one message, all of the messages exchanged were deleted from Purkiss's phone, and were later recovered on Mr Davies' phone.) At 6.03pm Mr Davies left the residence, driving the appellant's Hyundai Tucson.
78 Around this time Purkiss was home in Elderslie with his partner Jill Roberts, who had just arrived home from work. Purkiss told her that Mr Davies was on his way to their house and that he [Purkiss] intended to confront him about the frequency of his visits. The amount of time that Mr Davies spent at the property had been a source of conflict between Ms Roberts and Purkiss, as Ms Roberts did not like Mr Davies being there that often. Purkiss suggested that Ms Roberts leave for her own protection, in case things got heated. Ms Roberts left the residence and travelled to McDonalds at Bridgewater.
79 Brady Davies left the Risdon Vale property at 6.33pm. The appellant remained home decorating a cake for her grandson's first birthday party, which was scheduled for the following afternoon. There was no other relevant activity recorded on the CCTV at 68 Laurel Street, Risdon Vale, after Brady Davies left the residence until the last minute of footage recorded on the video recorder (DVR) before it was disconnected shortly before 11pm on 26 May 2017 and stopped recording.
80 After leaving home, Mr Davies travelled to Bridgewater to meet his friend Emma Jackson. He had organised the meeting to arrange to collect three bags of cannabis which he intended to sell to make some money. The deceased told Ms Jackson that he was going to look at some Harley Davidsons to buy. The deceased left there at 6.56pm.
81 The last outgoing communication recorded on Mr Davies' phone was an outgoing text message to Emma Jackson made by him at 7.41pm. The message related to Mr Davies going to look at bikes. A review of Mr Davies' internet browsing history on his mobile phone shows his last internet search occurred 8.01 pm when he searched for "2005 Harley Davidson FX STI Soft Tail Standard Specifications".
82 Sometime between 8.01pm and 8.49 pm Purkiss killed Mr Davies. The Crown case was that Purkiss lured Mr Davies into a small cannabis grow-shed. The deceased was wearing gloves and there were scissors present, consistent with Mr Davies having entered to pick some cannabis.
83 Whilst inside the shed, at a time when Mr Davies was likely kneeling down facing the wall of the shed, Purkiss shot him in the back of the head and the left side of his back with a 12 gauge shot gun. The shotgun wound to the top of the head perforated the skull and brain, and caused severe blast injury. The other wound was to the left side of the upper back, which caused severe injuries to the aorta and oesophagus. Both wounds were inflicted from a "very close" range.
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84 Purkiss left Mr Davies' body in the shed and at 8.49pm sent a text message to Jill Roberts saying "Hello babe, things all good here at home take care love you xxx". In response to a message asking if he [Mr Davies] was still there, at 8.55pm Purkiss replied, "Leaving now crying all the bullshit under the sun even told me he'd kill himself on the way home got a shock when I said you'd be doing everyone
around here a favour". Purkiss then packed up the car Mr Davies had arrived in – the appellant's Hyundai
SUV – and left his property.85 Jill Roberts was parked on the road side, waiting to hear from Purkiss that Mr Davies had left. She saw a silver Hyundai SUV, which she recognised as being owned by the appellant, drive past her. When Ms Roberts arrived home Purkiss's car was there, but he was not. She looked around for him but she could not find him. Inside, by the front door, she found a note from Purkiss saying that he "has gone to his Dad's".
86 Purkiss travelled from his house to his father's house in New Norfolk, where he asked his father if they could go shooting at an address near Tynwald Park. They did, and took two firearms with them. The Crown case was that this suggestion was made firstly in order to legitimately use the weapon after it had been used in the murder and secondly, to allow for Purkiss to return the weapon immediately after the murder. Purkiss then travelled from New Norfolk to the appellant's home at Risdon Vale.
87 At 10.50pm the appellant sent a message to Mr Davies' phone saying "don't forget you have work tomorrow xx". (The Crown case was that this was done to make it appear that she was expecting Mr Davies to return home.)
88 Shortly after this, Purkiss returned the vehicle that Mr Davies had travelled in to the driveway of the appellant and Mr Davies' home. CCTV depicted a person wearing a jacket with a hood, walking hurriedly and bent over with their face downwards, approach the front door. When entering the house, at 10:59:58pm Purkiss disconnected the DVR.
89 What then happened is extensively covered in the interviews which I will discuss later. Purkiss
told the appellant "he cried like a bitch … but he'll leave you alone now" and "you're free". Purkiss
threw Mr Davies' bracelet in the fire place and said "you don't have to worry about him anymore". The appellant said that Purkiss had put a "bullet" down on the table, later clarified to be an apparently fired shotgun cartridge. The appellant related much more that was said, stating she came to "the, the, um the realisation that [Mr Davies] was dead."
90 Purkiss tried to take a motorbike from the shed at 68 Laurel Street (which Mr Davies had obtained from Emma Jackson, but had arranged to return to her) and tried to start it, intending to ride it back to his house. The bike had a flat battery.
Saturday 27 May 2017
91 Between around 2.40am and 3.50am the appellant drove Purkiss to Elderslie. The trip was in part recorded on the appellant's mobile telephone travel log. Purkiss was in possession of the Swann DVR CCTV hard drive. The appellant's finger and palm prints were located on the DVR when it was later found in Purkiss's garage. When he arrived home, Purkiss did not go to bed inside the main house, and was not seen by Ms Roberts inside the main house on Saturday morning.
92 After returning home, at 4.02am the appellant called Purkiss. The call lasted for 61 seconds. The Crown case was that the appellant made this call to make it appear that she was calling him to find out where Mr Davies was.
93 At about the same time, the appellant tried to contact Kelly Goss. She spoke to Ms Goss's husband, Darren, as it appears Ms Goss's phone battery was flat. Mr Goss woke his wife and said that he had had a call from the appellant saying Dwayne was missing. After discovering the state of her
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phone, she went to pick up the house phone but Mr Goss told her the appellant did not want her to ring; "she just wants you to go round, she's upset." At about 4.20 am the appellant sent a text message to Emma Jackson asking if Mr Davies had been there, and at what time did he leave.
94 Ms Goss went straight to the appellant's home. The appellant looked tired and like she had been crying. There, the appellant told her that the night before she had made Saxon's birthday cake, and the house was quiet so she went to bed at about 8.30pm to read a book but did not remember getting through the first page. About a quarter to eleven she woke up and realised Mr Davies was not in bed, so she texted him and said "Don't forget you've got work tomorrow". She said she expected he was going to Brad's home and then to Emma's.
95 The appellant told Ms Goss she had woken and got up to get a glass of water, when she noticed her car keys on the kitchen table, so she looked out the window and saw that her car was in the drive. She said she had noticed that the shed light was on, so she thought Mr Davies may be in the shed, but he was not. They talked about where Mr Davies may be, his state of mental health and his financial situation.
96 Ms Goss had to leave at about 8.30 am. She asked Ms Peck to sit with the appellant. At about 9.30 am, the appellant phoned her son, Brady. She said that his father was missing, that he did not come home the night before but not to panic. According to Brady Davies, "then we sort of agreed that the day was about Saxon and not to worry ourselves about it in case it was just Dad trying to make attention or something." The appellant also rang Mr Davies' workplace to say he was missing.
97 When Ms Peck arrived in the late morning the appellant told her essentially what she had told Ms Goss. They talked about Mr Davies' drug use and what may have happened. They discussed suicide. The appellant reported Mr Davies had talked about it, although Ms Peck thought it was she rather than the appellant who focussed on that in their discussion. Ms Peck gave evidence that the appellant was generally upset; she was concerned because she did not know what was happening. Later, they left to go to Saxon's birthday party in the afternoon.
98 During the morning on Saturday, Purkiss went wood cutting with his father and brother. Purkiss had been invited to Saxon's birthday party, which was scheduled to commence at 2pm. Purkiss attended, and was driving Jill Robert's Peugeot station wagon. Purkiss arrived early and left early. At the party Purkiss gave away some cannabis, which Emma Jackson saw and identified as being identical to the cannabis she had provided to Mr Davies the previous evening. When Purkiss left, he obtained keys from Brady Davies, and told him that he thought Mr Davies could have committed suicide, "or just a number of things really" and he was going to check a few places to see if he could find him.
99 At some time between killing Mr Davies and travelling to Levendale on Saturday evening, Purkiss wrapped Mr Davies' body in a blue tarpaulin, and fastened it with packing tape and blue twine, which was later found in sheds around his property. Purkiss's DNA was later detected on parts of the twine and tape, when the body was discovered. Purkiss did not clean out the shed where Mr Davies was shot, and Mr Davies' blood and brain matter was later found in the cannabis growing shed.
100 According to Ms Goss, during the birthday party the appellant was on the phone for the majority of the time they were there. Brady Davies was not sure that the appellant and Purkiss talked much although there was a photograph taken by Brady's partner which shows the appellant. Purkiss, Brady and Saxon together. Ms Peck thought the appellant and Purkiss spoke "for a little bit" and Purkiss left. After the birthday party, Michelle Peck and Kelly Goss went to the appellant's home with the appellant. The appellant told them that Purkiss wanted to speak with them, as the last person to have seen Mr Davies.
101 Ms Goss wanted to call the police and the appellant said to wait explaining that Purkiss, as the last person to see Mr Davies alive, wanted to speak with them. She told them Purkiss had gone shooting
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with his father and was coming to talk to them when he was finished. (It was the Crown case that the appellant delayed the involvement of police until after Purkiss had had an opportunity to dispose of the body.)
102 Purkiss had gone shooting at Levendale with his father and brother. The Crown case is that he took Mr Davies' body, wrapped in blue tarpaulin and bound with blue string and tape, all items found near Purkiss's growing shed. The body was concealed under green waste and other waste in the tray of his utility vehicle. The deceased's DNA was later detected in a luminol positive area of Purkiss's utility tray.
103 CCTV from a service station at Brighton showed Purkiss stop in there on the way to Levendale. Green waste could be seen in the rear of the utility, and the recording also captured Purkiss receive a telephone call from the appellant. At 6.19pm the appellant called Purkiss to see how long he would be, as Ms Goss and Ms Peck were waiting with the appellant to hear from him.
104 When they arrived at the Levendale property Purkiss left his family for around 30 minutes to dispose of the waste. During this time he used an excavator in a clearing to dig a hole and bury the body, placing some of his waste and some tree stumps on top of it. Waste at the grave site was later matched to waste found around Purkiss's home in Elderslie.
105 Purkiss and his family shot for a little while, but as it was a windy night they finished early. Purkiss drove his brother and father home, then went to the appellant's house, arriving at around 11.30pm. At the appellant's home, Purkiss told the group that he had had an altercation with Mr Davies and punched him in the face a number of times. He said Mr Davies had left, driving off like a maniac and threatening to kill himself. He said Mr Davies would have a broken nose.
106 Purkiss said that Mr Davies had come to his house to look at some Harley Davidson motorcycles to buy, but they were stolen, so none was purchased. Purkiss and Mr Davies then had a fight, because Purkiss told Mr Davies that he was selfish. Purkiss hit Mr Davies in the face, and after the physical confrontation was over Mr Davies said "I thought you were my friend" and left. According to Ms Peck, Purkiss was excitable and "talking really fast" when telling the group what had happened.
Report to police
107 Police were called by Ms Peck shortly before midnight to report a concern for Mr Davies' welfare. Senior Constable Rebecca Woodhouse went to the appellant's home and spoke with her. The appellant said that she had not seen Mr Davies for about 24 hours and they were concerned for him. The appellant said that when she awoke at about 10.45pm on Friday, Mr Davies was not there. She said she had a look around the house but he was not there. She noticed that his mobile phone and the keys for the car were there. She then went out the back to the rear shed and he was not there either. The appellant said she got in the car and started driving out to Purkiss's place, knowing that that was where he was last, but she realised halfway that he would not be there because the keys to the car had been returned, and she was driving that car.
108 The appellant said that at 4am she called Purkiss to see if he knew where Mr Davies was. The appellant said that when she got home she just wanted to concentrate on her grandson's birthday, and had hoped that Mr Davies was going to return for that party. When Mr Davies did not come to the party she said that she, Purkiss and Ms Goss went about calling friends to see if they could find Mr Davies. The appellant said that whilst they did not locate him, they did discover that he had told various lies and said that disappearing and telling lies was like how he had behaved 10 years ago when he was using 'hard drugs', and that he was probably off on a bender.
109 The appellant also told Sen Const Woodhouse that Mr Davies suffered from bipolar and depression, but was not medicated for that and self- medicated with cannabis, and that he had previously
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made threats to self-harm, but said they were never serious threats and she did not believe he would carry it through. She said his business was struggling financially and that he had been the target of personal graffiti on his business, which had made him paranoid and install CCTV cameras, but that she had made Mr Davies disconnect the CCTV prior to his disappearance. The appellant said that she believed that it could have been a drug deal gone wrong.
110 After police left, Purkiss told Mr Davies' family and friends that Mr Davies owed him a lot of money, and had been giving him items to pay off the debt. (The Crown case was that this was a lie and that Mr Purkiss had been stealing property from Mr Davies' home, before and after his death.)
111 The Crown alleged that Purkiss spent much of the following days at the appellant's home with her. Their proximity was said to be demonstrated by DNA testing which showed the DNA of both was detected on a shirt found at Purkiss's house, and the appellant's DNA was found on the palm, top and nail area of Purkiss's right hand when he was arrested.
Sunday, 28 May 2017
112 During the day before, Purkiss had said he now owned a motorbike that Mr Davies had. He said this had belonged to Emma Jackson but Mr Davies had not paid her for it. Purkiss told Brady Davies that he was going to collect the bike, as Mr Davies had given it to him, Purkiss. On Sunday morning, Brady Davies walked to the appellant's home to help Purkiss in loading the motorbike on a trailer. That was done.
113 On the Sunday, in addition to Purkiss, Brady Davies and the appellant, Kelly Goss, Glen and
Karen Davies, Danielle Lush – Ms Goss's daughter – and Michelle Peck were at the appellant's house.
Later that day Glen and Brady Davies and Ms Lush went out to the tattoo shop to see if there was anything that would assist in finding Mr Davies. In that time, Purkiss looked in the roof cavity for the CCTV box. The appellant again said that she had asked Mr Davies to disconnect it a couple of weeks earlier.
114 During conversations, Purkiss repeated the story of his altercation with Mr Davies, saying he was the last to see him. Both the appellant and Purkiss suggested that what had happened was a "drug deal gone wrong" and it was not likely he would be seen again. Purkiss offered to organise counselling for the family. Ms Goss said that during the time Purkiss and the appellant were in each other's presence, Purkiss talked a lot about how much Mr Davies owed him, while the appellant sat by the fire with her head down for the majority of the time.
115 According to Ms Lush and Mrs Davies, the appellant was continually looking at her phone, walking around and being fidgety. Mrs Davies said that normally she would sit and talk with them, but not on this occasion. Apart from this apparently, she "seemed fine" when she was around Purkiss. Later in her evidence, Mrs Davies said that the appellant and Purkiss were not far apart from one another. There was "a couple of times" she asked the appellant questions, and Purkiss just said, "Loose lips sink ships", looking at the appellant. It seems Brady Davies and Ms Lush left not long after returning from the shop, while all those remaining left when the appellant went to see her parents.
Monday, 29 May 2017
116 At around 12.30pm on Monday 29 May 2017, Sergeant Adam Weeding went to the appellant's address for the purpose of obtaining a statutory declaration from her, for the missing person's investigation. Sgt Weeding explained that he wanted information in relation to the circumstances leading up to the disappearance, as well as other relevant information, such as, financial situation, family situation, any associates, anything that may be relevant to try and locate him. Purkiss was there.
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117 As Sgt Weeding was obtaining the statement, Purkiss interjected a couple of times. He told Sgt Weeding he believed he was the last person to see Mr Davies alive; that the two had engaged in a physical fight, he had punched Mr Davies to the face and believed he had broken his nose. The appellant asked him to go outside, which he did. Sgt Weeding then explained the process of taking the statement. He said the appellant appeared genuinely concerned and was obviously upset.
118 The appellant told Sgt Weeding that on the Friday night Mr Davies had left home in his van to drive to Elderslie. She said that at around 11pm she had not seen him but she had heard him return to the address and heard him out in the back shed. Later, she found his keys and his phone out in the back shed. The appellant told Sgt Weeding that Mr Davies' business was in financial difficulties; owing a significant amount of money on tax, and having a number of outstanding gift cards which had been handed out for work to be done, and Mr Davies had not been working.
119 The appellant said that the business owed $45,000 in tax and potentially another $10,000 was owed to the Outlaws Motorcycle Club, such debt having been accrued over the years as Mr Davies had refused to pay it.
120 The appellant told Sgt Weeding that she believed that Mr Davies had been using hard drugs. She said that he had been suffering from depression, although had not been diagnosed and he would self-medicate with cannabis. The appellant mentioned Mr Davies being suicidal. The appellant said that she thought if Mr Davies was going to self-harm that he would do it in a place where she would find him; that he would deliberately do it in a place where he knew she would locate him.
121 The appellant said that she thought Mr Davies was on heavier drugs. She said he had last used heavier drugs around four to five years ago. On those occasions he had disappeared for a number of days, and she considered that it was not unusual that he had gone missing on this occasion. The statutory declaration was not completed at that time, and Sgt Weeding organised to return later to finalise it.
122 During that day the appellant rang Karen Davies – Mr Davies' stepmother. According to
Mrs Davies, the appellant told her she was "$350,000 debt free", saying "I'm free, I'm free, debt free". According to Mrs Davies, when asked to explain, the appellant said that "the debts were all in Dwayne's name, that the house was in his name, the business was in his name", so she had no debt. When asked why she would think that, the appellant said words to the effect of, "He'd been gone too long now, he wouldn't be coming back".
123 In cross-examination, it was put to Mrs Davies that the appellant's comments about debt "did not come out of the blue" but had been made in response to a comment to her that it did not look like Mr Davies was coming back, and a question about how she would deal with the debt. Mrs Davies
answered, "I don't recall, I don't know, I don't recall that – probably, I don't –I really can't remember that question – how it even came up, I just remember what she told me." Mrs Davies agreed that the
way and context in which the comment was made suggested the appellant had "just found out" she
would be out of debt.124 At around 7pm on Monday 29 May 2017, Constable John Howe went to the appellant's house to obtain a photograph of Mr Davies for the missing person investigation, as well as to ask her for any further information which might assist the investigation. The appellant told Const Howe that Mr Davies had not been working, due to illness. She said that she thought he may have been pretending he was going to work, whilst she was at work. She said she was working up to 60 hours a week just to pay the bills as he could not work any longer. She said that she had a feeling that Mr Davies had become involved in the underworld as such.
125 The appellant said that he had become paranoid and had gone to the lengths of organising security cameras for around the house and also was looking into getting an aggressive dog to have in the yard. She believed that this may have been due to some sort of drug connection. The appellant told
20 No 15/2021
Const Howe that a few years before, Mr Davies' business had been paying protection money to the Outlaws Motorcycle Gang. After a while, he stopped paying that protection money and there were no further issues with them.
126 Whilst at the appellant's house, a male called Wayne Hales arrived. In the presence of the appellant, Const Howe and others, Mr Hales said he had been speaking with a male on the phone by the name of Greg Hutt. Mr Hutt had told him Mr Davies was in Launceston with Maxi Morrison, where Mr Morrison was assisting him in cleaning himself up again, and that he would be in contact with the appellant within three to four days.
127 On hearing that Mr Davies was alive the appellant did not react immediately, but after Const Howe asked her if that sounded like something that would happen, her eyes welled up with tears and "she seemed to be a little shocked at that stage." (The Crown case was that this reaction to the news that Mr Davies was "drying out in Launceston" revealed her confusion as to whether the plan had, in fact, been carried out.)
128 Brady Davies and his partner went to Purkiss's house for dinner. There, Brady Davies saw a lot of property in the garage that belonged to his father, as well as him personally, and having come from the family home.
30, 31 May, 1 June 2017 – the interviews
129 On the afternoon of Tuesday 30 May, the appellant went to the police station at the request of the police, and without any compulsion. She was not formally in custody. When police went to her house at about 2.30pm to make the request, the appellant was sitting at the dining table with Michelle Peck; Mr Purkiss was lying on the couch in the lounge room, apparently asleep. Purkiss also willingly went with police.
130 At this stage the investigation was regarded as a missing person's investigation, although the appellant's house had been declared a crime scene and, in her presence, arrangements were made for her vehicle to be taken away by tow truck. As well as uniform police, detectives were involved in the investigation.
131 On the way to the police station, the appellant said to Det Sen Const Wilson, unprompted, "You
have to be careful what you wish for. I've always wished him dead but now that it's happened it's
different."
132 The interview was conducted by Det Sen Const Wilson and Det Const Howard. In the first part, before the appellant started to explain what had happened between Purkiss and her on the Friday, she maintained the pretence that she had no idea what had happened to Mr Davies. Much of this part of the interview was taken up by the appellant describing the nature of the relationship between her and Mr Davies. She said things such as:
Mr Davies was quite selfish and a difficult man to deal with; he became progressively worse to the point that it was ridiculous; he became very needy of her and was really volatile; she found the emotional abuse draining; it seemed he felt "entitled" and did not accept any responsibility for his actions; she was scared of him because he was really unpredictable, and she was fearful that if she left him
he would hunt her down; he was possessive, controlling and needy; 21 No 15/2021
he had pressured her into having sex with a third person while he was present for which she resented
him and was angry with herself.133 In terms of the couple's financial situation, she complained of him working little while she was working 60 hour weeks and attending to his every need. She confronted him about not working and not dealing properly with their finances. She had lost one house because of him and had to put the current house payments on hold for six months as they were not able to pay their debts. Personal and business debts were mounting but he prioritised his wants over their needs.
134 In summary, the picture painted was one of Mr Davies treating her very poorly, being bad tempered and prone to verbal abuse, manipulative, selfish, lazy, unreliable and emotionally abusive. She did not complain of physical violence but did describe a time for a period during which he hit her about the face when they were having sex.
135 As to her relationship with Purkiss, she admitted to instances of sexual intercourse which she described as "physical interaction ... more about ... being touched with respect". She thought he was genuinely concerned for her welfare. She started sending him photos of herself because he would tell her she was beautiful. She said she knew he supported her; she trusted him and had no reason not to. She had emotionally relied on his support because he was not scared of Mr Davies, and made her feel safe. They had discussed her relationship with Mr Davies, with Purkiss saying "if you need to be out of there I will get you out of there, you've only got to say".
Q Yeah but what Fiona's saying, is Brad going to tell us that you've killed him? That you've moved the body?
That you've had more involvement that you've told us tonight?A No. HOWARD
Q That you know more than you've said to us? A
He is not going to be able, if he, obviously I can't prove it but I did not have anything to do with the killing, I did not help move the body, I don't know where it is, there is no calculated plan of what, what next? It
was so fucking surreal… WILSON
Q But you knew your husband was dead and it's taken till now to tell Police. Is that right? A Yes. Q Yep. And why? Why has it taken, like why has it taken you this long to tell us that your husbands dead? A Because I was so, because it wasn't what I, it wasn't, I didn't, I didn't want him, I didn't want him to be murdered, I didn't want him… Q You wanted him out of your life? What did you mean? A I wanted him out of my life, I didn't, I didn't want this and I felt that by when obviously I realised… HOWARD
Q As soon as Brad told you that, why didn't you come to Police? A
Because I was just so fucking scared. I was just scared of everything that happened. I was scared of just, have just now got myself with another, being involved with another psychopath? Brad says, 'I am very
calculated, I am very this, I am very that, he, he said you know, 'This is…'. Um at one point he said, 'You are free, you need to start living, stop existing, you need to start living, it starts this day, it all comes back on me as my responsibility, I made the touch decisions'. And… WILSON
Q But by you saying you know, 'You're better off without him'. Blah, blah blah, what you've already told us,
could that not have given him the impression that you wanted him gone?A No. 54 No 15/2021
Later, about lying
"Q Alright. So tell me why you've lied about the surveillance and the affair and Brad turning up? Why? A
Because I just wanted to have a normal life again and this wasn't what I wanted, it wasn't what I planned and I'm just, I'm so scared now, it's so fucked up and my son and grandson and my fucking whole life is,
and I just feel, I feel so stupid, I feel so stupid that I didn't, why didn't I, right from… Q Why didn't you what? A Why didn't I come with my concerns. Q Mm. A You know why didn't I? How have I been able to just go through the motions? Q Is it because you were trying to protect Brad? A Oh well obviously but probably to protect Brad or maybe protect myself. I don't know. Q Yeah. A Or protect Brad because I realised that, even thought it was unintentional I, I, I've manifested this by my need to… Q Encouraging Brad maybe? That's how I see it. And is the, how often did he come and visit you at work? A That was (inaudible). Q So the only time that he's come to your place, your work is the day before he was going to kill Dwayne? A We have… Q And he's conversation between the two of you… A (inaudible)… Q About how it was going to (inaudible)… Am I right in saying that Margie? A No, no. It was… Q Are you telling me the truth because… A No. Q Of all the other lies that you've told me… A I, I know… Q Is this another lie that you're telling me? A No. Q Is it that he has come to you at your workplace to tell you this is what he was going to do and this how he
was going to do it?A
No. I had no idea how or why or that was his intention. He came there saying, 'If you need to deal, you know if you want to deal with this, how have you been'? 'I've been giving him a hard time'. It was all based around whether I'd been coping a hard time and whether I was ready to get out.
Q (inaudible) A
No. If I was ready to get out and I said, 'I'm not understanding what you mean'? He said something along the lines of, 'If he was out of your life how would you feel'? 'I would feel relieved'. He said 'Eventually if you don't made a decision, I'm getting yourself out of this situation, I will make it for you, I will be the decision maker'.
Q And so that's just happened to be a conversation that you've had with the, first time that he's ever come to
your workplace and the day of him being killed by him? Yeah is that right?A It, it is and I… Q You see what it sounds… A I know. Q With that information as well as you telling us a whole heap, story that really didn't happen until we got it
out of you. I wonder really what's going on.A I had nothing to do with it. I had, I had, I … Q Maybe you didn't have anything to do with it and maybe you know that you weren't … A (inaudible). Q But is there more that he's told you that we need to know? A I don't know where he is. I wish, I wish I did. I don't know where he is.
At the end of the interview
HOWARD
Q
So is there anything else you can tell us because we'll just turn the recording off if there's not. If there's anything else that you think you need to tell us now, it is your opportune time to do it.
55 No 15/2021
A Um… Q It's very important those last, this last request that I'm giving you. Anything at all? We don't need to know anything about… A Um so over the last few weeks the only other time I've spoken to Brad he said, 'If you want out,
I can help you'.Q Mm. A 'I can get you out of here'. Q Ok. A Um and that Jill, there is no, I can be safe. Cause I actually said to him about… Q But you've told us this already. A But so… Q Is there something more relevant that you can tell us now? WILSON
Q You know how you were just saying that you don't know why you haven't told us sooner and
blah, blah, blah, now is your chance ok.A But I don't know what I'm meant to tell you. Q The truth, what you know, if there's anything more you know about where he is or… A I don't know where he, Q Or anything else. A (inaudible)… HOWARD
Q That's fine, as long as it's the truth and that what we need now. WILSON
Q Anything further? Like is there anything we haven't discussed tonight that you need to get off
your chest and we need to know?A Um… Q Is there anyone else that we can speak to? A Um there's no one else that would know. HOWARD
Q So you've said that but is there anything else? A Um… Q Now's your chance? A Yeah no I know, I know um um no I don't think there's anything else. Q There was a time there that you were thinking. A I am I'm trying to think… Q But are you thinking that there's something you (inaudible) or there's nothing? A No. Q Well if you're quite content that there's nothing to tell us we're going to conclude alright. A No I'm scared that there is probably something I still need to tell you. Q Yeah. WILSON
Q Have a little think. A I can't, I can't think, (inaudible). I feel like my heads going to explode. HOWARD
Q
Ok. That's probably a time now where we need to conclude. And when you have time to rest and think about it then you can let us know alright. Ok so we will conclude at eleven twenty
five pm. …" 56 No 15/2021
31 May 2017
About discussions with Mr Purkiss
"Q Yep. A And then Brad said in conversation to me at some point I think he said, when he said, 'How long are you
going to do this for'?Q Yep. A You know... Q What did you say to that? A I said, 'I don't know, I don't know how to get out of it'. Q Yep. A
I don't know what to do and he said, 'Well I can come and pack you up and take you now, Jill will have you at home'. I think he said, 'I can make him go away'. Yeah and I said something along the lines of, 'But you can't make that forever'.
Q Mm and what he say to that? A And that was where he said that, again the ten thousand dollars and a trip to New Zealand. That's the big
that stands out for me.Q Right ok. So ... A
But not for me, he just said, 'Ten thousand dollars and a trip to New Zealand'. And if um and he said something else that just made me feel like it was, he was just going to make him go away and intimidate him to never want to come back. (inaudible) ... you know the intimidation of, (inaudible) back here, you're a dead man. But obviously he didn't go away and when we were at the house when he came in, he came up and he said, 'You're free you can start living instead of existing, he's not coming back'. And then I just kept going. 'Am I free'? (inaudible) cause he can come back. And that was when he put the bullet casing on the counter and said, 'If he comes back that will be (inaudible) and the bullet casing, I don't know, ...."
Later, about Mr Purkiss coming to her home
"Q (inaudible) and he's come back to that house on Friday night with your car ... A
He didn't actually say that, he didn't, he didn't actually say that he did (inaudible) .... (inaudible) .... (cries) and I can't keep my mind, I can't, I can't he just kept saying, 'Loose lips sink ships, loose lips sink ships'. That's what he said when he come home.
Q Who to? (inaudible). A Everyone, everyone, everyone's been around (inaudible). Q So what did he mean by that? A He was (inaudible) to Dwayne (inaudible). Q So he told everyone, 'Loose lips sink ships'. A 'Sink ships'. You ask them. Q And he said that to everyone at the house? A Yes. Q Well what it mean by that? A Well it (inaudible.)... Dwayne (inaudible).... He said, he said you know when I make decisions no one will
know, no one will know anything. This has just been in conversations.... Q So did you say to him, 'That doesn't make sense Brad because you've come back with his car, with my car
and him not anywhere to be'. [sic] Why did you not say that to him?A Because, because I just, just can't, didn't want to believe it, I didn't want to believe it. Q It doesn't make sense Margaret. A I know I didn't want to believe it. Q
It does not make any sense because he's saying to everyone in that house and to you, 'Loose lips sink ships, he's coming back'. And you know very well he wasn't coming back because he arrived at that house with his car, with your car.
A I (inaudible). And I can't understand it, I'm just not getting any understanding ... I know. Q Of how you have sat there for four days and no, even when there was no one around you have not, you
have got to have had discussions about all of this and it's got to have given, for you to be able to...A I didn't want to... Q Make this story up because you initially created a story didn't you? Yep. The story that you gave to us
initially had been created for it to try and to take the blame away.A (inaudible). 57 No 15/2021
Q
No, no, no. To take the blame away from you and from Brad. That's my understanding of what you have done, you've done that together. From what we've been able to take, relieve from your mind, get out off your shoulder the fact that there were some parts of that story that you two had made up that didn't make sense and we do ... we know it didn't make sense so we got out of you some facts of what really happened. You understand? And because you have created it between you two, there have got to have been further conversations about this. There's got to have been conversations about you both getting together and saying, 'This is what we're going to say'. 'This is what's going to happen'. I'm going to say that I rang up, that you've um you rang up and talked to him at four o'clock in the morning Brad and asked him where he was going to be. Have you had that conversation with Brad?
A Um when I dropped him off I said, 'I'll ring you when I get home'. We said that last night didn't we? WILSON
Q Yep we did. A Because... HOWARD
Q And was there (inaudible)... A (inaudible) been explained that he's never coming home... Q Yeah. A Cause he said, 'You don't know anything'. He said, 'You go home and do what you've got to do'. Q What did he mean by that? A Um (inaudible)... he was crapping off that this wasn't going to come out. You know did he, I mean... Q It's just confusing isn't it? So what happens is... A (inaudible)... I know... Q
Things get more confusing the more stories that you've created, the more um lies or more cover up you tried to do. So if you could just let it be and tell us exactly then we would be able to get a clear and you would be able to get it clear in your head and we don't have to be...
A I'm not, I'm not trying to, I know it seems unreasonable... Q It does. A I know (inaudible)... Q (inaudible) this is just not bullock but this is not true. A I know and when you say to me I know.... Q Yeah. A I know... Q Makes sense doesn't it? A It does and I don't blame what you're thinking what you do. Q Yeah. A But I, it wasn't a direct conversation, he never actually told me he had actually killed him. He told me that
you know that when, the argument, I believe the argument went the way that it did but obviously...Q So you believed that from what he told you... A But obvio... Q The way that argument occurred between him and Dwayne... A Yep but obviously I know that he didn't leave in a huff or they went somewhere or he took him somewhere. Q You know that? A Well it's obvious because Brad ends up with my car if Dwayne, my car obviously did the argument stop
it or does it mean they go somewhere else?Q You tell us? A I don't know. I didn't ask, I didn't, I don't, I di... probably because I didn't want to know, I didn't want to
face the fact that I had created, not with the intention for Dwayne to go away (inaudible)...About the meeting at work on the Friday
"Q So when he came to your work on Friday, from that conversation, I know you've said he hasn't directly
said, but from that conversation did you construe that he was going to make Dwayne go away?A I can, out of that conversation I thought that over the next, (inaudible) I certainly didn't expect it. Q Straight away? A Friday night. 58 No 15/2021
Q Yep. A I expected that he was going to, out of that conversation what I was expecting was that he was going to
intimidate Dwayne and make him go away when he left, out of that conversation.Q Yep. When? A I don't know but... Q You didn't expect it? A
And I certainly didn't expect it like, like this and I certainly didn't expect it so soon. He rang, he rang me later in that afternoon or messages me, no he rang me and I think I missed the phone call and I rang him back and he said um, 'It will be ok'. And I said, 'How do you know it's going to be ok'? And he said, 'I will deal with it, you won't have to worry anymore'.
Q Muh. A
God. I still just, I say it loud and it's like, fucking stupid (inaudible). You know when you guys say what you're saying, it's so obvious, it's so obvious but I just wanted to believe that he was going to make him go away and leave me alone and I want to believe that...
Q How did think that Brad was going to do that? A Do get, to, I don't know. Q To get him? HOWARD
Q Cause it doesn't make sense. A To get him to leave, to go away and be too scared to come back near me. ... Q Hard to believe. A
It just sounds so fucking stupid. Did I want it so bad that is that why I don... is that why I didn't ask, is that why I just accepted it and asked nothing because I just didn't want to know but I knew. Did I, is it, (inaudible)...
Q If you wanted it so bad... A Oh my god. Q I don't understand why you didn't come to Police either. A I don't, I don't know. HOWARD
Q You didn't come to Police cause you knew what was gone hadn't you? A I (inaudible)... but I didn't want to, I didn't want to know. Q But you'd concocted your story... A But I didn't think, I didn't think, I didn't think... Q
To thinking that it was never going to amount to what this has come about really hasn't it? That we've now found holes in your story, we've found holes in Brad's story, enough to make it very obvious that something's happened to Dwayne by the hands of either yourself or Brad or both of you or just one or the other and those um stories have got so many floors [sic] in it that it's changed.
A I know. Q So we just have to, all we're wanting... A
And Brad, he kept saying to me that, 'Decisions get taken out of people's hands'. So when he asked me if I wanted him to go away he said, 'You realise that if you don't get yourself out of this situation I will make the decision'.
Q When did he say that? A He's said that a few times. Q What, did he say how he was going to do that? A He didn't say he was going to do that and this is where he always says, 'Loose lips sink ships'. 'You don't
tell anyone anything'.Q Alright so we've covered some of Friday night again. So and Brad... It still concerns me about the
conversation that you're not telling us what's really gone on there.A Oh well I don't remember, there must have been conversations but there wasn't, I can't, I can't recall."
1 June 2017
"Q
Ok. Now it's really important that you understand what the investigation is showing ok. Now over the last couple of days you've been questioned quite extensively and I want to make it really apparent to you what the evidence shows ok. The evidence shows that there is blood and other matter in a shed at sixty Cockatoo
59 No 15/2021
Road which I believe will ultimately show that it belongs to Doc, ok. That blood is in a shed that was locked and we believe the only person with key to that is Bradley.
A Ok. Q
Ok. We believe that Doc was last seen leaving your house to travel up to Bradley's house ok at about six o'clock on Friday night the twenty seventh of May, twenty sixth of May. Now he hasn't been seen after that but Bradley has turned up at your house at sixty eight Laurel Street Risdon Vale at around about eleven o'clock on that same Friday night in Bradley's car.
A No he… Q Sorry in Doc's car. A (inaudible). Q Right now after that you've then taken him back out to Elderslie but not all the way to his home and
Bradley has told you that you can, 'Start living and stop existing'.A Yes. Q And you have previously told him about a relationship that you have with Doc that is difficult ok. A Yep. Q
To a reasonable person that should be enough for you to believe that Doc was dead. Now you did not come forward to Police with that information ok. You need to understand that it's a crime to not report the killing of a person. Can you explain why you didn't come forward to Police?
A
I can't. I don't think it was reasonable to start with and I didn't want to believe it, I didn't want to believe because it's not, it's not what I wanted. I wanted to be free, I wanted my nightmare to be over but this is not, not what I wanted and then by the Saturday when we got that other phone call I just, I had this little bit of well maybe he didn't do it. I just, I don't know.
WILSON
Q That wasn't Saturday was it? A Saturday night, yeah it was. I didn't want to know. BURK Q Now bearing in mind of course… A I lost… Q That when Bradley has brought Doc's car back or your car back to your house Risdon Vale, he's also
brought back his phone. You haven't been able to contact Doc thereafter.A I know. Q And he's also thrown a bracelet into the fireplace at your house. A
I know to a normal person you would just know and you would just do, I don't know why. I don't, I'm sorry I don't. I've just spent so long just trying to be able to pretend this stuff doesn't happen. I don't know why, I don't know. If I was in your shoes I know exactly what, I'd be thinking the same. I just wish I knew where he was. I wish I could at least make that right. You know and I want to believe that, that Bradley
was just protecting or was he only playing me as well (inaudible)… I don't know. Q And you're aware that there is drug debt owed between Doc and Bradley? A Yep. Q And what we believe to have occurred is that some of that drug debt has been paid off by a motorcycle that was taken from your residence… A Yep. Q A day or two after Doc was last seen alive. A And there was supposed to be another one as well. Q Now a reasonable person could come to the view that you have paid for Doc's death by payment of this
debt though the motor bikes. What do you say to that?A I know but no that's not what happened, it's not. God I know… I… Q
A reasonable person might also believe that because you have told Bradley about your relationship with Doc and how difficult your relationship has been that you have given him the incentive to kill him on your behalf.
A No like he was just going to scare him into going away. I did, I didn't realise, I didn't know, I didn't know
and then when it happened I just, I didn't want to know, I didn't want to believe that I had caused that.Q Now what's done is done. A
I just want to hold hi. This, it just shouldn't have happened. I wanted him to go away, I was trying to protect my family cause I was scared for them but not like this, this is not what I wanted. Brad said, 'You'll never know'. 'Only people know that would take it to the grave'.
60 No 15/2021
Q When did he tell you that exactly? A Um Friday or Saturday. I don't know nothing. Q The important thing here is for you to try and help us understand that you didn't have this murder planned and that there weren't discussions between yourself and Bradley about getting rid of Doc well before this day. A No. Discussions that happens was, 'If Doc could go away and leave me alone is that what I'd want'? Q And who raised that? Was that you or was that Bradley? A It was Brad after I had an issue with Doc and he just said, 'Marg how long are you going to keep doing
this for'?Q When was that discussion had? A Um a few weeks ago and he offered me three phone calls. Well he said, 'Jill offered that'. Cause she could see that things were…'. I don't know. This, I don't know if Jill really did to get me out of the State but I was, that's not an option cause then I put my son and his family in danger. Me leaving the State was not
an option and then after, 'How about Doc leaving the State'.Q Who else was present when this conversation was had between you and Bradley? A Oh it was just me and Brad. Q And what precisely did he say about Doc going away? Remember to speak up and keep your hands away
from your voice so that we can hear clearly what you say.A I don't know. I, cause it's been, we've spoken a couple of times. Not long conversation. Not, I don't remember specifics. There was one where he said, 'That he knows the people that can make him go away and he'll never want to come back in this State'. But I don't know. I want out, I want to make this right. I do. This isn't what I wanted. I didn't know it was going to happen and I know that I must have known afterwards, I know and I know how it looks. And if Bradley really wanted to protect me, why isn't he telling me where the body is. If he really cared why isn't he telling me cause no one else knows. Have you told him that I could be being charged? Q He's aware that you are in serious trouble and he has chosen not to help you… A And he's not protecting me? Q At this stage. A Oh God. He's the only one that knows. He used to always say, 'Loose lips sink ships'. So he doesn't tell
anyone anything.Q So when we speak to Bradley later on today… A Oh … Q Is he going to tell us that you have asked him to murder Doc DAVIES? A I don't know. I hope not. I didn't. He offered to help, he offered to help me, to help me get away. He didn't mention murder, he's not told me he actually murdered him. If he's, if he's not telling the truth I don't know what he'll say. Q Do you agree that you have helped Bradley PURKISS after Doc was murdered? A I have obviously. Oh god. Why didn't I just tell anyone? Q I'm just going to run a few things quickly by you. I believe that you have been an accessory after the fact to Doc's murder by not reporting his death when you reasonably should have known that he was dead. Do you agree with that? Or disagree? A I want to give you an answer. I just don't think I should say anything. Q You want… A No you're right, I did. I… ask me that question again? Q Did you assist Bradley after you reasonably know, knew that Doc was dead? A I think I did."
26 May and 27 May. Many outgoing SMS messages had been deleted, particularly in the early part of that period. They were to family
and apparent friends. A few similar incoming ones had been deleted.
Where a person instigates another to commit a crime, and a crime is actually committed after such instigation by the person instigated, it is immaterial whether the crime actually committed is the same as that instigated or not, or whether the crime is committed in the manner suggested or not; provided in either case that the facts constituting the crime actually committed are a probable consequence of carrying out the instigation. In any such case the instigator is deemed to have himself committed the crime actually committed."
direction to the jury, a course the High Court has said is contrary to the common law of Australia: Director of Public Prosecutions
Reference 1 of 2017 [2019] HCA 9, 267 CLR 350.
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