R v Allen & Bradford

[1992] QCA 222

IN THE COURT OF APPEAL [1992] QCA 222

SUPREME COURT OF QUEENSLAND

C.A. No. 239 of 1991

C.A. No. 236 of 1991

T H E Q U E E N

v.

TIMOTHY FRANCIS ALLEN and
MICHAEL ROBERT BRADFORD

Appellants

JUDGMENT OF FITZGERALD P.

Delivered the 29th day of July, 1992

The facts are summarised in the judgments of other

members of the Court and, except for some matters referred to
below, I will not repeat them.

I agree that Bradford's appeal against conviction should

be dismissed and his application for leave to appeal against
sentence should be refused. I also agree that Allen's appeal
against his conviction for unlawful use of a motor vehicle
with circumstances of aggravation should be dismissed and his
application for leave to appeal against his sentence for that
offence refused. I have nothing to add to the reasons given by
other members of the Court in relation to these matters.

However, for the reasons which follow I have concluded

that Allen's appeal against his conviction for murder should respect of the initial refusal of a separate trial which occurred in the absence of the jury prior to the commencement of the evidence.

be allowed and the conviction quashed and a new trial ordered.

Allen's second application for a separate trial was made

on the seventh day of the trial after his counsel had been
informed by Bradford's counsel that Bradford proposed to rely
upon a defence of diminished responsibility and that, for that
purpose, a psychiatrist would be called whose evidence would
include an account of the killing given to him by Bradford
which was adverse to Allen. All parties and the judge
proceeded on the footing that the psychiatrist's evidence
would be admissible in Bradford's trial without Bradford being
called, although its probative value would be reduced. The
trial judge, who had been made aware that Allen intended to
give evidence but that Bradford did not, expressed his
confidence that "by proper directions the jury will be quite
able to perform their task free from any confusion and any
prejudice."

This restriction benefited Bradford in his trial since it

further complicated the position with respect to Allen's
trial. Neither at this point in the proceeding nor on the
occasion of the previous application for separate trials two
days earlier was consideration given to the possibility that
Bradford's statements to the psychiatrist might have included
any material favourable to Allen. Moreover, at least on this
final occasion, it seems to have been overlooked that the
psychiatrist's opinion and Bradford's statements to the
psychiatrist could not be evidence against Allen. The trial
judge's comments seem to have proceeded on the contrary
assumption, or at least on the assumption that the jury might
not fully exclude such matters from its consideration of the
case against Allen.

excluded damaging admissions made by Bradford. However, it prosecution and each of Allen and Bradford without any issue between the accused. However, there was a practical contest between them as each sought to deny guilt and blame the other.

Allen subsequently gave evidence in which he sought to exculpate himself and inculpate Bradford, and he was cross- examined by Bradford's counsel as well as the prosecutor.

However, Bradford's counsel did not put to Allen crticial was suggested by Bradford's counsel in his cross-examination of Allen that he was the sole murderer.

parts of Bradford's account of the killing to the psychiatrist
which involved damaging admissions by Bradford, including that
he had suggested to Allen that they commit a murder and that

This led to a third application for separate trials on

the ninth day of the trial, which was again refused.
However, the trial judge ruled that he was "not going to
allow" Bradford's counsel "to get in through" the psychiatrist
"anything which has not been put to Allen in cross-
examination". Bradford was still permitted to call the
psychiatrist but he was only to be allowed to recite a part of
the account of the killing which he had been given by Bradford
upon which he had based his opinion that Bradford had

diminished responsibility.

Theoretically, that contest involved no issue of credibility

since Bradford gave no evidence. However, his account of events which differed from Allen's was heard by the jury. More accurately, his account of events was heard in
circumstances which may have involved considerable advantage
to him in that:

(i)damaging admissions were deleted;

(ii)Bradford had given a different version to

investigating police which had been excluded on psychiatrist which the jury partially heard could not only not be tested by cross- examination but the jury was unaware that he had given an inconsistent version to the police;

an earlier voir dire. In consequence,

(iii)although the psychiatrist conceded that he did not

have to determine the facts and that, if the
facts were different from what he had been
told, it might affect his opinion, it might
still have appeared to the jury that the
psychiatrist, apparently an expert in human
behaviour, believed what Bradford had told him
since he had related his opinion of Bradford's
diminished responsibility to Bradford's account
to him of the killings and of his relationship
with Allen; and

(iv)although it was told that the account of the killing given

by Bradford to the psychiatrist was not
evidence against Allen and that it was not
evidence of the truth but only a foundation for
the psychiatrist's opinion, the jury was not
told that, in the circumstances of Bradford's
failure to give evidence, that opinion was of
no, or at least of very little, probative
value. Although there was no application for
redirections on this point, it is a matter for
consideration in the total context in
determining whether Allen had a fair trial.

There was significant potential disadvantage to Allen in

the advantages to Bradford to which reference has been made. the accused in police interviews or evidence, it does not follow that a joint trial is always unobjectionable in such circumstances. In Allen's case, the notion that confusion and prejudice could be obviated by appropriate directions to the jury sits uneasily with the circumstance that the trial judge and the legal representatives themselves became confused in the course of the trial.

These potential disadvantages to Allen must be taken with

possible detriment to Allen in the context of a joint trial.

another matter in which the protection of Bradford involved a participant or, on his version, as an accessory after the fact, his evidence should not be used against Bradford unless it was corroborated. In his summing up, the trial judge said: "Miss Dick has made some submissions in support of the

testimony of Allen, but there is a problem with Allen's evidence, ... . It depends on whether or not you regard Allen as being an accomplice. ...

...

Miss Dick, in her submissions to you, if I recollect

correctly, conceded that if the man Allen had done

anything wrong, it was being an accessory after the fact.

He had helped Bradford dispose of the body. He had

driven the car, he had thrown away the keys, torn out the
microphone handset, another car was coming - he did all
these things - hiding the body, disposed of the body, and
it is a matter for you, but that seems to put him into
the category of being an accessory after the fact, but
the principal offender is one who actually does the
murder. It is a matter for you if you accept him as an
accomplice. If you accept him as an accomplice, ...
there has to be some corroboration of his evidence. The
essence of corroboration is that it confirms or
strengthens or supports other evidence in the sense that
it renders that other evidence more probable. ... . The
law requires corroboration of the evidence of
accomplices, well, for a start, because the accomplice is

a criminal himself. ... .

It is a criminal offence to be an accessory after the fact to

the crime of murder. The accused is not charged with that
offence in this trial. Miss Dick said he could be
charged later on. That does not concern us. For a start
he is a criminal and, secondly, human nature comes in
here. If two men are in trouble, you might think it is
to be expected one might try to shift some of the blame
or part of the blame onto someone else. They are
criminals and they are unreliable. You have got to

approach their evidence with a great deal of caution.

Now, the law is this, that you can convict someone on the

uncorroborated - you can find that Bradford was the
murderer on the unsupported evidence of Allen. You can
do that. That is clear. I warn you that it is dangerous
to do that unless his evidence is corroborated in some
material particular. If you don't believe Allen, of
course, that is the end of his evidence, and all the
corroboration in the world won't make a credible witness
out of someone whom you don't believe. If you say,
`well, look, I do believe this witness, but I am heeding
the Judge's warning to look for corroboration'., that is
what you should be doing or should do, and again it may
be that you are inclined to believe Allen but say, `well,
I will suspend my judgment until I look for
corroboration.', and that is what you should do to,. The
corroboration here, as I understand it - well, I can
point out to you evidence which is capable in law of
amounting to corroboration, that is it is supporting. I
can point it out to you, and then it is a matter for you
to say whether you accept that evidence and then whether
you say that is corroboration. I will point it out to
you. Then if you accept it and say it is corroboration,
you can use it to corroborate the evidence of the accused
Allen."

Later, the Judge gave a redirection at the request of

Counsel for Allen saying:

"I did not make it clear to you that there is more than one

use for the evidence of the accused Allen. When you look
at his evidence in connection with his own case, his own
defence, you can act on it. You don't have to if you
choose not to. You don't have to choose whether he is an
accomplice or not. You don't have to look at anything
like that at all as far as he is concerned when you are
considering the case against him separately. You look at
that evidence as part of his case. You don't have to
have any corroboration at all. Just look at his evidence
as it is another person giving evidence although there is
no onus of proving anything upon the accused Allen. If
after hearing his evidence you have a reasonable doubt as

to his guilt, of course you must acquit him. ... "

Understandably, it is impermissible to single out the

Robinson

testimony of an accused as suspect or unreliable: cf. my opinion, that submission is correct.

v. R. (1991) 65 ALJR 644; Mustafy v. R. (CA No. 258 of 1991,
judgment 6 March 1992); Roach v. R. (CA 185 and 214 of 1991,
judgment 29 April 1992); and Westropp v. R. (CA 219 of 1991,
judgment 29 April 1992). At Allen's trial, although it is
questionable whether the prejudice which the initial direction
had caused Allen could have been satisfactorily undone, the
redirection was accepted as sufficient. However, it was
submitted before this Court that, notwithstanding the
redirection, Allen was necessarily disadvantaged by the
warning of the potential unreliability of his evidence against

There was a potentially strong case against Allen who was

present and, at least after the killing, a willing and active
participant.

However, the case was conducted against him on the basis

that he was guilty of murder because he stabbed the victim.
That conclusion was supported by the evidence of a pathologist
based upon the nature of the wounds to the victim and Allen's
position in the rear of the vehicle. Allen denied such a
role. He was entitled to have the credibility of his
testimony assessed by the jury without any suggestion that it
might be inherently unreliable and, at least in the
circumstances of this case when the psychiatrist's evidence
was of no real value, without the complication introduced by
the psychiatrist's evidence of what he had been told by
Bradford.

In the circumstances, it cannot safely be concluded that

the jury was properly directed and adequately comprehended and
applied what it was told in relation to the charge of murder
against Allen: cf R v. Leslie (1989) 2 Qd R 378; R v. Crawford
(1989) 2 Qd R 433. That being so, it cannot safely be
concluded that there was no miscarriage of justice in respect
of Allen's conviction for murder.

Accordingly, Allen's appeal against his conviction for

murder should be allowed and his conviction quashed and a new
trial ordered on that charge.
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 239 of 1991

C.A. No. 236 of 1991

T H E Q U E E N

v.

TIMOTHY FRANCIS ALLEN and
MICHAEL ROBERT BRADFORD

Appellants

The President
Mr. Justice Davies

Mr. Justice Mackenzie

Separate reasons for judgment of Fitzgerald P.

Davies JA and Mackenzie J delivered on the 29th

day of July, 1992, all concurring as to orders

made, except with respect to Allen's appeal against
conviction for murder, Mackenzie J. dissenting on that point.

Allen:Appeal against conviction for murder allowed. Conviction

quashed. New trial ordered.

Appeal against conviction for unlawful use of a motor vehicle

dismissed and application for leave to appeal against sentence refused.

Bradford:Appeal against conviction dismissed. Application for

leave to appeal against sentence
refused.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 239 of 1991
C.A. No. 236 of 1991

Before the Court of Appeal

The President
Mr Justice Davies

Mr Justice Mackenzie

T H E Q U E E N

v.

TIMOTHY FRANCIS ALLEN and
MICHAEL ROBERT BRADFORD

Appellants

JUDGMENT OF FITZGERALD P.

Delivered the 29th day of July, 1992

MINUTE OF ORDER:

Allen:Appeal against conviction for murder allowed. Conviction

quashed. New trial ordered.

Appeal against conviction for unlawful use of a motor vehicle

dismissed and application for leave to appeal

against sentence refused.

Bradford:Appeal against conviction dismissed. Application for

leave to appeal against sentence refused.

CATCHWORDS:

Allen:CRIMINAL LAW - JOINT DEFENDERS - Appellant convicted of

murder - Whether trial Judge erred in refusing to
order separate trials in light of plea of diminished
responsibility by co-accused and history given to

psychiatrist prejudicial to appellant

Bradford:CRIMINAL LAW - DEFENCES - DIMINISHED RESPONSIBILITY -

Appellant convicted of murder - Whether jury ought necessarily have accepted appellant in state of diminished responsibility given challenge to expert evidence.

Counsel: Mr P. Nase for the Appellant Allen

Mr A.J. Rafter for the Appellant Bradford

Mr D. Bullock for the Respondent

Solicitors:Legal Aid Office for the Appellant Allen

Legal Aid Office for the Appellant Bradford Director of Prosecutions for the Respondent

Hearing Dates: 7th May, 1992

REASONS FOR JUDGMENT - DAVIES J.A.

Delivered the 29th day of July 1992

I agree with Mackenzie J. that Bradford's appeal against conviction should be dismissed and that his application for leave to appeal against sentence should be refused for the

reasons which he gives.

I have reached the conclusion that Allen's appeal in relation to the conviction of murder should be allowed and that he should have a new trial. As my reasons for this conclusion differ from

those of the President, I shall state them below. I accept the statement of facts given by Mackenzie J. subject to additional matters to which I refer.

In my opinion, the applicant Allen was deprived of a fair trial once the trial judge allowed into evidence the account which Bradford gave to Dr Moyle, the psychiatrist, of events on the night of the killing, and in particular of the circumstances of the killing, and the opinion of Dr Moyle. That opinion, which was based on that account, on objective tests performed and on a history of the relationship between Bradford and Allen, was that

Bradford could not think sequentially and consequently could not plan or retain in his memory any proposed course of action and that his relationship with Allen was close and dependent. The account was hearsay and, before it was given, it was plain that Bradford was not going to give evidence. In the context of Dr Moyle's evidence it was given an added credibility because it was consistent with Dr Moyle's opinion, formed in part from objective tests and the history, and Allen's testimony was inconsistent with that opinion. Consequently, both the opinion

and the account were prejudicial to Allen and that prejudice was, in my view, incapable of being overcome by the directions which were given.

There were three applications made on Allen's behalf for a separate trial. No complaint was made on appeal about the refusal of the first application which was made before any evidence was given at the trial.

The second was made on the seventh day of the trial at the conclusion of the Crown case. Counsel for Bradford informed other counsel and the trial judge that Bradford intended to rely on a plea of diminished responsibility, that Bradford would not give evidence himself, that a psychiatrist to whom Bradford had spoken would give evidence on his behalf, and that that psychiatrist would give evidence of Bradford's account of events on the night of the killing. The basis for the application was that, it being envisaged that that version would implicate Allen, Allen would thereby be unfairly prejudiced and that prejudice could not be overcome by a direction to the jury that the psychiatrist's evidence in this respect was not admissible against Allen. Although Allen's counsel made it clear that, if the psychiatrist's evidence of what Bradford told him of events on the night of the killing was inadmissible in the absence of evidence by Bradford, the strength of her argument for a separate trial for Allen disappeared, she did not argue for its exclusion and appears to have conceded that it was admissible. The trial judge refused the application, declaring himself satisfied that if extra curial statements by Bradford formed part of the basis of the psychiatrist's opinion, adequate directions could be given by him to the jury to avoid any unfairness.

It may be assumed that Bradford's account to the psychiatrist of events on the night of the killing was relevant to the opinion which the psychiatrist would give. What was not made clear, and may not have been known, at least to the trial judge, at that stage of the trial, was whether the psychiatrist's opinion would be based, in part, on the assumption that what he had been told

by Bradford of events on the night of the killing was true. To

the extent that it would be so based it would be of no value in the absence of evidence by Bradford and, more importantly for present purposes, his evidence of those events would be both objectionable by and highly prejudicial to Allen. In the context of Bradford's plea of diminished responsibility it could not have been contended that any part of Bradford's account to the psychiatrist was admissible as an admission against interest by Bradford. Counsel and the trial judge assumed the applicability of a passage in the judgment of Wanstall C.J. in R. v. Shafferius (1977) Qd.R. 213 at 217D-E, to the effect that notwithstanding an announcement that the accused was not going to give evidence, it may be the better course to admit hearsay evidence of a doctor with a direction that, if not sworn to by the accused, it is not evidence of the facts and a warning that the expert opinion based upon it may have little or no value. However, his Honour was speaking of a practice which he thought would be appropriate in the trial of a single accused, the assumption being that the admission of hearsay evidence of statements by the accused in such a case could prejudice only the Crown and that prejudice could be overcome by appropriate directions. Even in that case, however, I would, with great

respect, doubt its wisdom where the evidence is objected to, the only relevance of the evidence lies in its truth and it is clear that the accused will not give evidence. In a joint trial where there is a real possibility of prejudice to a co-accused the desirability of excluding it is all the greater.

It was during Dr Moyle's evidence that his Honour gave a direction that Bradford's account was not evidence of the truth

of what he said and was not admissible against Allen. He said
nothing about the weight of Dr Moyle's evidence.

On the ninth day of trial, counsel for Allen made her third application for a separate trial. At that stage Allen had given evidence but the psychiatrist had not. The application was preceded by an argument as to whether the psychiatrist could give evidence of part of Bradford's account of events on the night of the killing which had not been put to Allen in cross examination by Bradford's counsel. His Honour ruled that the psychiatrist could not give that evidence. Although his Honour's ruling appears to assume that if the evidence were given it would be admissible against Allen, the application to exclude the evidence was made on Allen's behalf and it is not now suggested that its exclusion prejudiced Allen's fair trial.

By the time of the third application, all parties and his Honour had a copy of the psychiatrist's report and the psychiatrist had

given some evidence upon a voir dire. From the latter it was clear that the psychiatrist's evidence would be based, in part, on the assumption that what he was told by Bradford of events on the night of the killing was true. Bradford's account did not appear to have any other relevance to the psychiatrist's opinion.

It also appeared, though less clearly at that stage, that what he was told by Bradford supported, and Allen's testimony

contradicted, his objective finding that Bradford could not think sequentially and consequently could not plan or retain in his memory any proposed course of action. This emerged more

clearly from Dr Moyle's evidence before the jury in consequence of which the jury could well have thought that Bradford's version of events obtained some added credibility because it supported Dr Moyle's conclusion and was consistent with his objective tests and with the general history which the doctor obtained of Bradford and his relationship with Allen. That general history was also confirmed in evidence given as part of the Crown case by Bradford's mother, by the members of Allen's family and by Allen himself. That relationship, it appeared, was particularly close and dependent because of its duration and Bradford's difficulty, because of educational and mental limitations, in communicating with others, even in sign

language.

In my view therefore the admission into evidence of Bradford's hearsay version of events, together with the added status which

it obtained from the other evidence of Dr Moyle and the logical

conclusion from the whole of that evidence that Allen had to be the instigator or leader in whatever they did together caused Allen's trial in relation to the charge of murder to miscarry. Consequently, he should be granted a new trial in respect of that charge.

The main evidence in relation to the offence of unlawful use of a motor vehicle consisted of admissions by Allen. He admitted driving the vehicle, after assisting Bradford to remove the

deceased from it, and, at the end of that use, removing the

microphone from the radio set and throwing it away (the second
circumstance of aggravation).

The first circumstance of aggravation was use for the purpose of facilitating the commission of an indictable offence, stealing

the coin dispenser from the vehicle. Allen did not admit to knowledge of this offence before its commission. In addition,

according to his version, he left the cab shortly after he stopped it in the middle of the road, having removed the hand piece of the radio and keys and thrown them away. He then began walking to Bradford's home. Bradford remained in the vehicle seemingly rummaging through the glove box. After some time passed Bradford caught up with him.

However there was sufficient evidence indicating Allen's involvement with the theft of the money and the evidence

convinces me that the conviction with that circumstance of aggravation is not affected by the considerations referred to in relation to the conviction of murder. That evidence includes:

.Allen's writing on the note presented to change the coins on 11

August 1990;

.Allen's admission of writing that note and presenting it at the

post office;

.Allen's testimony of receipt of $25.00 from Bradford (to whom he gave all of the money after cashing it) and of using $20.00 of it to pay board to his mother on 12 August 1990;

.Allen's testimony that he cashed his full unemployment benefit of $210.00 on 9 August 1990 and had spent it all by the time they got into the taxi on 10 August 1990;
.Allen's mother's testimony that he had a regular commitment to pay board of $20.00 on a Sunday; and that on 12 August 1990 she asked Allen for this sum and received it.

Furthermore, even if the jury had considered Dr Moyle's evidence in Allen's trial, it would not have prejudiced Allen on this count because it was consistent with Dr Moyle's opinion of Bradford's capabilities that Bradford could have stolen the coin dispenser.

In the circumstances this conviction is not open to challenge.

Allen applied for leave to appeal against the sentence imposed for this offence on the ground that it was manifestly excessive.

That sentence was one of ten years' imprisonment. The maximum penalty for that offence is 12 years' imprisonment. The conviction for murder having been set aside, I have disregarded any involvement of Allen in the killing in considering this application. The remaining facts show Allen's participation in what Mackenzie J. has described as the "callousness of the events of the night". While the sentence is heavy, it is not manifestly excessive.

I would therefore:

(a)dismiss Bradford's appeal and refuse his application for

leave to appeal against sentence;

(b)allow Allen's appeal against his conviction for murder and

order a new trial on that count; and

(c)dismiss Allen's appeal against his conviction for unlawful
use of a motor vehicle and refuse his application for leave to

appeal against the sentence imposed in relation to that offence.

REASONS FOR JUDGMENT - DAVIES J.A.

Delivered the 29th day of July 1992

MINUTE OF ORDER:(a)Dismiss Bradford's appeal and refuse his application for leave to appeal against sentence;

(b)Allow Allen's appeal against his conviction for murder and

order a new trial on that count; and

(c)Dismiss Allen's appeal against his conviction for unlawful use of a motor vehicle and refuse his application for leave to appeal against the sentence imposed in relation to that offence.

CATCHWORDS:

Counsel:P. Nase for the Appellant, Allen
A.J. Rafter for the Appellant, Bradford

D. Bullock for the Respondent

Solicitors:Legal Aid Office for the Appellants

Director of Prosecutions for the Respondent

Hearing date(s):7 May 1992
Reasons for judgment of Davies J.A. delivered the 29th day

of July 1992

____________________________________________________

DISMISS BRADFORD'S APPEAL AND REFUSE HIS APPLICATION FOR

LEAVE TO APPEAL AGAINST SENTENCE;

ALLOW ALLEN'S APPEAL AGAINST HIS CONVICTION FOR MURDER AND

ORDER A NEW TRIAL ON THAT COUNT; AND

DISMISS ALLEN'S APPEAL AGAINST HIS CONVICTION FOR UNLAWFUL USE OF A MOTOR VEHICLE AND REFUSE HIS APPLICATION FOR LEAVE TO APPEAL AGAINST THE SENTENCE IMPOSED IN RELATION TO THAT OFFENCE.