R v Bernard Francis Schutze and Carolyn May Cornelius No. SCCRM 94/148 Judgment No. 4843 Number of Pages 21 Criminal Law and Procedure (1994) 76 a Crim R 324

[1994] SASC 4843

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA MATHESON J

CWDS
Criminal law and procedure - Murder - two accused charged with committing crime jointly - Crown case that the deceased was beaten to death by Schutze with a piece of wood in or near the presence of the accused Cornelius - whether admissions by Schutze made voluntarily - allegations of intimidation by police officers rejected - Summary Of fences Act s79a - whether defacto apprehension by police officers - whether admissions should be excluded - application by Schutze for separate trial - material prejudicial to Schutse in police interview of Cornelius - whether statement made by deceased to neighbour on eve of death inadmissible hearsay - whether Crown should have been criticised for not calling a witness. The Queen v Brown 146 LSJS 326; The Queen v Conley (1982) 30 SASR 226; The Queen v Lavery (1978) 19 SASR 415; R v Webb and Hay (1992) 52 SASR 563; 68 ALJR 582; Foster v The Queen (1993) 113 ALR 1; R v Demirok (1976) VR 244; R v Gibb and McKensie (1982) 30 SASR
176; R v Clover (1987) 46 SASR 310; R v Collie, Kranz and Lovegrove (1991) 56 SASR 302; The Queen v ConIon (1982) 30 SASR 176; R v Hendrie (1985) 37 SASR
581; Walton v The Queen (1989) 166 CLR 283; Pollitt v R (1992) 108 CLR 1 and The Queen v Apostilides (1984) 164 CLR 563, applied.

HRNG ADELAIDE, 20 September - 10 October 1994 #DATE 8:11:1994

Counsel for Crown:                Ms W J Abraham

Solicitors for Crown:             DPP (SA)

Counsel for accused Schutze:     Ms E F Nelson QC with her
  Mr P A Leash

Solicitors for accused Schutze: Paul A Leash

Counsel for accused Cornelius:    Mr G B Hevey with him
  Mr R T Hane

Solicitors for accused Cornelius: Robert T Kane

ORDER
Reasons for rulings given at trial.

JUDGE1 MATHESON J Bernard Francis Schutze and Carolyn May Cornelius were charged on the following information:
    "First Count Statement of Offence
    Murder. (Section 11 of the Criminal Law Consolidation Act,
    1935).

Particulars of Offence
    Bernard Francis Schutze and Carolyn May Cornelius on the 27th
    of November, 1993 at Wynn Vale, murdered Christopher John
    Eames.

CAROLYN MAY CORNELIUS is charged with the following Offence
    Second Court Statement of Offence
    Assisting an offender. (Section 241 of the Criminal Law
    Consolidation Act, 1935).

Particulars of Offence
    Carolyn May Cornelius between the 26th of November, 1993
    and the 30th of November, 1993 at Salisbury East and other
    places believing that Bernard Francis Schutze had unlawfully
    killed Christopher John Eames, disposed of a club used in the
    commission of that offence with the intention of impeding the
    investigation of it."

2. They pleaded not guilty, but were both convicted by a jury of murder. In the circumstances, no verdict was taken on the second count. In the course of the trial I made a number of rulings, reasons for four of which I now proceed to give:

APPLICATION TO EXCLUDE EVIDENCE OF ADMISSIONS MADE TO POLICE OFFICERS BY BERNARD FRANCIS SCHUTZE ("SCHUTZE"). 3. By way of introduction to my reasons for rejecting the application, it is necessary to set out briefly the case for the prosecution. The deceased Eames was bashed to death in his unit at Wynn Vale at or about 5 am on Saturday 27 November, 1993. The two accused, who had previously cohabited, had been together on the Friday evening at a house in which Carolyn May Cornelius ("Cornelius") was then living with a man called Craig Wilmott. (Wilmott was not called as a witness, and I refer to this later in these reasons). Cornelius had loaned her car jack to Eames. She wanted it back to help to remedy a problem in her own car. In the early hours of the Saturday morning, Cornelius telephoned Eames and asked him to return the jack, but he declined. His response apparently made Cornelius angry. Schutze was also angry with Eames because of an incident that had allegedly occurred some weeks beforehand as a result of which Schutze, who apparently was involved in bondage practices, was under the impression that, while he had been tied up at his own request, he was injected with amphetamines by the deceased, and the Crown relied on this incident for a motive. The two accused went together to Eames' unit in Schutze's car. Cornelius, who at one time had also cohabited briefly with Eames, showed Schutze the way.

4. Eames was found dead in a bedroom of his unit on the Sunday night by a neighbour. Dr. James, the pathologist, said there were thirty-three different injury sites requiring at least forty blows with a blunt object. Death was due to brain damage resulting from at least one of the blows to the head.

5. Cornelius was interviewed on video by Detectives Keane and Yelland on Friday 3 December. She admitted that she had gone to the deceased's unit with Schutze, and that Schutze had struck the deceased a number of blows with a piece of wood. She admitted that she knew that Schutze was going to give Eames a beating. She said she did not strike any blows, but admitted that she went first to the door. After she had knocked several times, the deceased came to the door. Schutze, who had stayed back out of sight, then entered the house, pushing Cornelius aside, and assaulted Eames with a piece of wood. Later Cornelius disconnected the telephone in the unit, searched for and found some marijuana which she put in a bag together with the piece of wood which had been used in the assault on Eames. She also found her jack, and put the bag and the jack in Schutze's car. They returned to the house in which Cornelius was living. She said that Schutze had been violent to her on the way to Wynn Vale, and at Eames' unit, and on the way back.

6. Cornelius sought with not much success to burn the piece of wood, and on the Monday travelled with Schutze to a location beyond Gawler, and left it there. She herself subsequently went to Virginia, and disposed of her jack. She showed the police where the wood and the jack were, and the police recovered both items.

7. At about 9.15 pm on the same day that Cornelius was interviewed, two police cars went to the premises of Schutze at Unit 33, 15 David Street, Mitchell Park. Keane, Yelland and Detective Senior Sergeant Couch went in the first car, and their car pulled up in front of Schutze's premises just as Schutze pulled up in his car in his driveway. Detectives Standen, Fielding and Murphy went in a second car which pulled up behind the first police car. The first three officers then had a conversation with Schutze in his house in the course of which he admitted he had hit the deceased "all over" and "quite a few" times.

8. The Crown also alleged that admissions were made to other civilian witnesses.

9. In his Rule 9 notice, Schutze gave the following particulars of the grounds relied on for exclusion of the admissions:
    "1. That the conversation was involuntary.
    2. That admitting the conversation into evidence would be
    unfair to the applicant.
    3. That public policy dictates that evidence of this
    conversation should be excluded due to the failure to comply
with Section 79a of the Summary Offences Act 1953.
    (a) That the applicant was subject to conduct by police in
    the driveway of his premises which amounted to a de facto
    arrest and apprehension which required the police to provide
the applicant with his rights pursuant to Section 79a of the
    Summary Offences Act 1953.
    (b) That upon entering the applicant's house the applicant
    was subject to intimidation and oppressive conduct by the
    police.
    (c) That the accused was not at any time during the
    conversation informed of his right to silence.

It is submitted that the arguments relating to paragraphs (a)
    to (c) are relevant to inadmissibility due to involuntariness
    and to the discretion to exclude arising from unfairness and
    public policy."

10. I agreed to have a voir dire, and at the outset Miss Wendy Abraham, who appeared for the Director of Public Prosecutions, asked Miss Nelson QC, counsel for Schutze, to be "more specific as to the allegations so the Crown knows what witnesses it needs to call". Miss Nelson said:
    "My application will be based upon the instructions I am
    given by my client as follows: That contrary to what is said
    in the police statement, he was not, prior to being arrested
    de facto and interviewed, advised of his rights.

So that there is a dispute on the facts as to what was said
    and that he was intimidated and subjected to a de facto
    arrest and apprehension, and that any conversation which
    occurred thereafter should be excluded in the exercise of
    your Honour's discretion. So firstly there is a factual
    dispute as to what was said by my client and what was said by
    the police officers. Secondly, there is an application that
    in the circumstances in which that conversation took place,
    your Honour should in the exercise of your discretion exclude
    it."

11. Although this intimation was not very clear or precise, the voir dire proceeded. After I heard the evidence and counsels' addresses thereon, I gave the following ruling:
    "Notwithstanding the tenacious and resourceful
    cross-examination of Ms Nelson, I have reached a conclusion
    that the police evidence, notwithstanding some minor
    inconsistencies, is essentially truthful.

I do not accept the evidence of the accused. I am satisfied,
    on the probabilities, that the answers of the accused were
    voluntarily made. Moreover, I am not persuaded on the
    probabilities that I should exclude the answers in the
    exercise of the discretions that I have.

I will, if necessary, give more detailed reasons later for
    this ruling."

12. The prosecutor called all six police officers on the voir dire. I propose to quote a substantial portion of Keane's evidence in chief. No notes were made at the time of the conversation at Schutze's house by any of the police officers. Keane made notes later as will appear, and Yelland and Couch subsequently read Keane's notes, and agreed that they were an accurate record of the conversation. Keane said:
    "At about 9.15pm on Friday, the 3rd. of December, 1993, I
    attended at Unit 33, 15 David Street, Mitchell Park, with
    Detective Senior Sergeant Couch, Detective Yelland and other
    police officers. In the driveway of (the) premises, I
    approached a white Mazda RX7 which was parked in the driveway
    and I saw a male person, whom I now know as Bernard Francis
    Schutze, seated behind the steering wheel of the car. I had
    the following conversation with Schutze in the presence of
    Couch and Yelland.
    I said, 'Bernard Schutze?'
    He said, 'Yes.'
    I said, 'We are police officers from the Major Crime Task
    Force. Rather than talk out here, do you mind if we go
    inside?
    He said, 'Sure, I'll just lock the car up first.'

Couch, Yelland and I then followed Schutze into the Unit
    where I continued the conversation with him in the presence of
    Couch and Yelland.

I said, 'As I said before Bernie, we are police officers from
    the Major Crime Task Force. My name is Keane, this is
    Detective Yelland and this is Detective Sergeant Couch.'
    He said, 'Hi.'
    I said, 'We are making enquiries in relation to the murder of
    Christopher Eames at his Unit at Wynn Vale on or about the
    27th. of November this year.'
    He said, 'Right.'
    I said, 'Firstly, I'll advise you that you are not obliged to
    answer any questions that I ask you but anything you say will
    be taken down and given in evidence. Do you understand
    that?'
    He said, 'Yes but that sounds a bit heavy. I can't tell you
    anything anyway.'
    I said, 'Do you know Christopher Eames, the man that was
    murdered?'
    He said, 'I know a Chris that lives over Salisbury way.'
    I said, 'Do you know a Carolyn Cornelius?'
    He said, 'Yes, I know Carol very well.'
    I said, 'We have received information that you and Carolyn
    Cornelius went to Chris Eames' unit last Saturday morning,
    she knocked on the door and after Chris let her inside, you
    followed her in and then bashed Christopher Eames with a lump
    of wood.'
     He said, 'No way.'
    I said, 'Do you deny going to Chris' unit with Carol last
    Saturday.'
    He said, 'I really don't know what you're talking about. Who
    said this about me anyway.'
    Yelland said, 'Look Bernie, we interviewed Carolyn this
    afternoon and she has given us the complete story about what
    happened at Chris' last Saturday.'
    He said, 'What did she tell you?'
    Yelland said, 'Like I said, she has given us the complete
    story from the time you parked in the church car park across
    the road from Chris' until you left, taking the lump of wood
    with you in a sports bag.'
    He said, 'Hang on a minute, we went to Chris' and the door
    was already open. We went inside and found him lying in the
    bedroom with blood all over him. We took off out of there.'
    I said, 'Bernie, as Detective Yelland has said, Carol has
    told us exactly what happened. We have even recovered the
    lump of wood that was used and which is now partially burnt.'
    He said, 'I can't believe Carol would have told you all this.
    Can I read what she has said?'
    Couch said, 'We can't show you at this time because it is all
    on video tape, but you will get to see it in time.'
    I said, 'Bernie it is true, we even know that Carol burnt the
    bag, rags and lump of wood in the sand pit in the back yard,
    but the wood didn't burn completely and the two of you threw
    it away off a dirt road on the other side of Gawler.'
    He said, 'You obviously know it all.'
    I said, 'Yes we do.'
    He said, 'Okay then. It was self defence. He came at me
    with a lump of wood and I took it off him. I guess I just
    lost it a bit.'
    I said, 'What do you mean you lost it?'
    He said, 'I don't know. I'd had some whizzy and I was out of
    it a bit.'
    I said, 'What happened when you took the lump of wood away
    from Chris?'
    He said, 'I just started hitting him. It was me or him.'
    Couch said, 'How many times do you think you hit him?'
    He said, 'No idea, quite a few I suppose.'
    Couch said, 'Did Chris hit you at all?'
    He said, 'No, I took the lump of wood off him and got him
    first.'
    I said, 'Where did you hit Chris?'
    He said, 'All over.'
    I said, 'Bernie, you are now going to be arrested and
    detained on suspicion of the offence of murder of Christopher
    Eames at Wynn Vale. Do you understand that?'
    He said, 'Yes I guess so. What happens now?'
    I said, 'We will take you to Headquarters and conduct a
    further interview on video if you are in agreeance, but
    firstly I'll give you your rights. You are entitled to
    refrain from answering any further questions whilst you are
    in custody and anything you say will be taken down and given
    in evidence. You are entitled to have a solicitor, friend or
    relative present during any further interrogation or
    investigation. You are entitled to make a phone call to a
    nominated friend or relative to advise them of your
    whereabouts. Do you understand these rights?'
    He said, 'Yes. Can I get my thongs first?'
    I said, 'Yes, where are they?'
    He said, 'In the car under the front seat, but be careful of
    the needle. I think it's capped though.'

Schutze was then handcuffed and following a short
    conversation with other police officers at the unit, Schutze
    was conveyed to Police Headquarters in Angus Street
    accompanied by Couch, Yelland, Detective Senior Sergeant
    Standen and myself. Schutze was then taken to an interview
    room adjacent to the Major Crime Task Force office where I
    had a further conversation with him in the presence of
    Yelland.

I said, 'Bearing in mind that you have been given your
    rights, I take it that you are in agreeance to this video
    interview?'
    He said, 'Yes, I mean I've already told you the story
    anyway.'
    I said, 'That's right, but we would like to also get it on
    video. Are you happy to do that now with just the three of
    us?'
    He said, 'Yes, I suppose so.'

At about 10.00pm on Friday, the 3rd. of December, 1993, I
    commenced an audio visual interview with Schutze in the
    presence of Yelland. This interview was terminated at
    10.04pm that same evening for the purposes of contacting a
    solicitor for Schutze. Arrangements were subsequently made
    for a solicitor to attend from the Legal Services Commission.
    At about 10.30pm that same evening I commenced to make
    handwritten notes of the conversation I had with Schutze at
    his home address and the short conversation with him prior to
    the audio visual interview. At about 11.15pm., solicitor
    Andrew English attended and he commenced to speak to Schutze.

At about 11.55pm that same evening, I re-commenced the audio
    visual interview with Schutze in the presence of Yelland, and
    this interview concluded at about midnight on Friday, the
    3rd. of December, 1993. At the completion of the video
    interview, the VHS video tape was placed in a tamper proof
    bag and retained as an exhibit.

At about 12.10am on Saturday, the 4th, of December, 1993,
    whilst walking Schutze to the City Watch House, I had the
    following conversation with Schutze in the presence of
    Yelland.
    I said, 'Bernie, I have made some handwritten notes of the
    conversation at your place earlier tonight before attending
    here. Do you want to read those notes?'
    He said, 'No, my lawyer told me not to read anything, sign
    anything or make any comment. I'm sorry.'
    I said, 'That's fine.'
    He said, 'Is there anyway of getting out of here tonight?'
    I said, 'You have the right to apply for bail and a bail
    leaflet will be given to you but I'll tell you now that we
    will be opposing bail.'
    He said, 'I thought you would.'

Schutze was then taken to the Watch House where he was
    charged, searched and placed in a cell."

13. In the course of the first part of the video interview and just after he said he wished to contact a solicitor, Schutze said: "I don't want to delay things and muck people around, it's just that I'm, you know, nervous and -".

14. Schutze gave evidence on the voir dire, and called two witnesses, a neighbour, Mr. A. D. Ireland, and a solicitor, Mr. J. A. English. Schutze said that the first police car pulled up across his driveway blocking his exit. He heard inter alia the words "Police here. Freeze. Don't fucking move. Keep your hands on the steering wheel where we can see them." He said one police officer then told him to get out of the car. He thought it was Keane. Another police officer was not far from Keane, and another one was at the rear of the car. There were more police officers standing around the car. They were shining torches in his face. On leaving the car, he was told to spread his legs out and put his hands up against the car, and he was searched. He said he saw guns being holstered. He agrees that Keane said to him "We are police officers from the Major Crime Task Force. Rather than talk out here do you mind if we go inside". He said, "Sure", and he asked if he could lock the car up first and was told he could. He said he recalled putting the steering lock on the car and then locking the car. He said:
    "I was under the impression from the time that the police
    pulled up, when the first car blocked off my driveway, that I
    wasn't free to go anywhere from that stage. I felt
    intimidated from that moment onwards, and certainly after we
    were in the house I was absolutely certain I wasn't free to
    go anywhere. I felt that I had to ask to scratch my face,
    you know. I felt extremely intimidated ... For starters the
    car blocking the driveway induced the feeling of not being
    able to leave or the feeling of being somewhat under arrest
    or, you know, trapped into the situation. From thereon the
    search, the 'Freeze, don't move', the words spoken, the

    manner. After I was searched - actually just before I was
    searched I recall someone saying something about 'He may be
    dangerous'. They may have said something about 'He may be
    armed' but I know they said 'He may be dangerous', so I was
    definitely under the impression that these police were there,
    they weren't going to let me go anywhere,..."

15. He admitted to a substantial portion of the questions and answers contained in Keane's evidence, but denied that he was cautioned at any stage. He said he was not aware of his rights at the time, and he felt intimidated. He said he felt obliged to respond to the questions. He said:
    "Detective Yelland came up to me shortly after that
    conversation or during the period of that conversation about
    the whole story and all that sort of thing. He was getting a
    little bit hot under the collar. He said these words clearly
    'I've had a gutsful of this', and he came walking up to me.
    I was sitting in the chair and he came up to me, put his knee
    on the arm of the chair and his nose was, you know, very
    close to my nose and looked right in my eyes and said 'We are
    not going anywhere until you tell us the right story', and he
    just stared, you know, stared at my eyes and I said to him
    something about him feeling like bashing me, or something
    like that. I can't recall my actual words, something about
    'You want to start on me?' or something like that. 'Go
    ahead', and he said 'No. You'd like that from what we've
    heard', and he stayed there for a couple of minutes longer."

16. He denied that he told the police that he had had some "whizzy" (i.e. amphetamine or "speed"), or that he said that he was "out to it a bit". He said he told the police that he had had some "whizzy" earlier on the night of the questioning. He agreed that he was asked how many times he hit Eames, but he said he replied "I'm not sure, a few I suppose." He denied he said "Quite a few I suppose." He denied that he said that he hit Eames "all over", or anything like that. He agreed there was a conversation in relation to his thongs, but he said that he told the police they were in his bedroom. He agreed that he said there was a syringe in a brown paper bag under the driver's seat of his car. He denied that he was given his "rights" when he was formally arrested at his unit at the end of the police questioning. He denied that he showed one of the police officers some syringes in a kitchen cupboard, and denied that he showed any police officer money on the top of his wardrobe. He denied that there was any conversation at his house about the jeans he wore on the night in question. He said there was a conversation about them on the way to Police Headquarters in the car.

17. It is convenient here to state that I did not find Schutze to be a credible witness. Indeed, he was singularly unimpressive under cross-examination. I had the distinct impression that his allegations of improper and intimidatory conduct by the police were being embellished as the voir dire proceeded, and as witness succeeded witness, and that the embellishment increased when he went into the witness box. Some of what he said had not been put to the police witnesses. To be more specific, I did not believe his evidence that the first police car blocked his driveway or that he was told to freeze or anything like that, or that he was searched against the car (or at all), or that any of the police produced or holstered their guns, or that they had torches. I did not believe what Schutze said about Yelland's behaviour during the interview in the house or that he or any other police officer intimidated him.

18. In contrast, I thought all six of the police officers were impressive and credible witnesses. There were some minor inconsistencies, but I did not think they were of any consequence. I accepted the police evidence that Schutze was cautioned before the conversation inside the unit, and I accepted the police evidence of the conversation as accurate. It is convenient here to mention that Miss Nelson conceded that she could not criticise the police for not putting to Schutze at the outset all that Cornelius had told them (see The Queen v Brown 146 LSJS 326, especially at pp.328-330). I accepted that Schutze was given his "rights" when Keane said he was. I accepted the police evidence that Schutze showed Fielding and Yelland a box containing some syringes in the kitchen, and that he showed Murphy some money on the top of a wardrobe in his bedroom, and that he moved it. I found that Yelland asked Schutze in his bedroom about the jeans he was wearing on the night of the alleged offence, and that Schutze explained that they were being mended at the house of a girl called Tracey, and that he told them how to find her house.

19. I carefully considered Miss Nelson's argument that the witnesses Ireland and English discredited the police evidence, but in the end I was not so persuaded. Ireland, who was a friend and neighbour of Schutze, came out of his unit to meet his son who had been dropped home by another neighbour, and claimed to observe the arrival of the police cars and the approach by the police officers to Schutze's car. I thought he was a partial and unconvincing witness. I suspected, too, that he was irritated by the approach to him by Standen (who thought he may have been dropped home by Schutze), and that he was preoccupied with the arrival of his son. I rejected his evidence, and in particular his evidence that the first police car partly blocked Schutze's driveway. I simply did not believe he could see all that he claimed to have seen.

20. The solicitor, Mr. Andrew English, was a more convincing witness than Ireland. His evidence contradicted part of the police evidence as to what happened after his arrival at Police Headquarters, but having carefully considered his evidence, I was not persuaded that it discredited the police evidence in any significant way.

21. Having rejected the evidence of Schutze that he was intimidated, either outside or inside the house, I reached the conclusion that his answers to the police were voluntarily made.

22. Miss Nelson's stronger argument, however, really was that there had been a de facto apprehension of her client by the police in the driveway, and that he was not given his "rights" pursuant to s79a of the Summary Offences Act. That states, (so far as is material):
    "79a (1) Subject to this section, where a person is
    apprehended by a member of the police force (whether with or
    without a warrant) -
    (a) the person is entitled to make, in the presence of a
    member of the police force, one telephone call to a nominated
    relative or friend to inform the relative or friend of his or
    her whereabouts; and
    (b) where the person is apprehended on suspicion of having
    committed an offence -
     (i) the person is entitled to have a solicitor, relative
     or friend (in the case of a minor the relative or friend
     must be an adult) present during any interrogation or
     investigation to which the person is subjected while in
     custody;
     (ii) if English is not the person's native language - the
     person is entitled, if he or she so requires, to be
     assisted at an interrogation by an interpreter; and
     (iii) the person is, while in custody, entitled to refrain
     from answering any question (unless required to answer the
     question under this or any other Act or law).
    (1a), (lb) and (2) ...

(3) A member of the police force must, as soon as is
    reasonably practicable after the apprehension of a person -
    (a) inform that person of his or her rights under subsection
    (1); and
    (b) warn the person that anything that he or she may say may be taken down and used in evidence."

23. The leading authority is The Queen v. Conley (1982) 30 SASR 226, where King CJ said at pp 239-240:
    "A person is apprehended for the purpose of (the Summary
    Offences Act) when he is deprived of his liberty by a police
    officer irrespective of whether formal words of arrest are
    used. Frequently a police officer invites or requests a
    suspect to accompany him to a police station or to some other
    place for the purpose of pursuing police enquiries and the
    suspect voluntarily complies. Such an invitation or request
    does not amount to deprivation of liberty (The Queen v. King
(1978) 19 SASR 118, per King J at pp 128-129), even though
    the police officer would have made an arrest if the suspect
    had not complied and even though the suspect believed that
    that would be the result of non-compliance. If, however, the
    circumstances are such that the words uttered, although in
    form an invitation or request, would in the circumstances
    convey to a reasonable person that he had no genuine choice
    as to whether to accompany the police officer, it becomes
    incumbent upon the police officer to make it clear that the
    suspect is not under arrest and is free to refuse to
    accompany him, and, in the absence of such an intimation, the
    apparent invitation or request may constitute an
    apprehension."

24. I also refer to his Honour's remarks in The Queen v Lavery (1978) 19 SASR
515. At p.516 he said:
    "A suspect may, voluntarily and without constraint, accede to
    a police officer's request to accompany him and, if he does
    so, there is of course no interference with his liberty.
    This is so even if he goes reluctantly out of respect for
    authority or fear that a refusal will be construed as an
    indication of guilt or some other similar motive. The
    suspect's liberty is not under restraint simply because the
    police officer would or might arrest him if he were to
    exercise his right to depart or to refuse to accompany the
    police officer."

25. In that case, his Honour held that there was a de facto apprehension, but the facts justifying such a conclusion were much stronger than in the case at Bar, and included the fact that the detective placed his hand on the accused's shoulder and turned him around.

26. In R v Webb and Hay (1992) 52 SASR 563, King CJ said at p 571:
    "The test is whether the actions of the police would have
    induced a reasonable person in the position of Webb and did
    in fact induce Webb to suppose that he was not free to
    leave."

27. If I had believed Schutze's evidence about what he claimed the police had said to him, and what they had done, at or about the time he got out of his car, I would have had no difficulty in concluding that there had been a de facto apprehension. On my findings, however, Miss Nelson had merely to rely on the presence of two police cars and six police officers converging on Schutze's unit, and the probable fact that whatever he had said to the police when he was questioned, he would have been arrested that night. I did not think there was anything sinister or improper about there being two police cars at the scene or about the presence of six police officers, bearing in mind that they were investigating a violent murder. I did not overlook the fact that Keane did not say to Schutze before they went together into his unit that he was free to refuse his invitation to go inside and talk, or that he was not under arrest, but in the end I reached the conclusion that there had not been a de facto apprehension, although I readily acknowledge that the matter was finely poised and that opinions might differ. Accordingly, I asked myself how I would exercise the discretions reposed in me if, contrary to my view, there had been a de facto apprehension. In Foster v The Queen (1993) 113 ALR l in a joint judgment at pp 6 and 7, Mason CJ, Deane, Dawson, Toohey and Gaudron JJ said:
    "It is now settled that, in a case where a voluntary
    confessional statement has been procured by unlawful police
    conduct, a trial judge should, if appropriate objection is
    taken on behalf of the accused, consider whether evidence of
    the statement should be excluded in the exercise of either of
    two independent discretions. The first of those discretions
    exists as part of a cohesive body of principles and rules on
    the special subject of evidence of confessional statements.
    It is the discretion to exclude evidence on the ground that
    its reception would be unfair to the accused, a discretion
    which is not confined to unlawfully obtained evidence. The
    second of those discretions is a particular instance of a
    discretion which exists in relation to unlawfully obtained
    evidence generally, whether confessional or 'real'. It is
    the discretion to exclude evidence of such a confessional
    statement on public policy grounds. The considerations
    relevant to the exercise of each discretion have been
    identified in a number of past cases in the court. To no
    small extent, they overlap. The focus of the two discretions
    is, however, different. In particular, when the question of
    unfairness to the accused is under consideration, the focus
    will tend to be on the effect of the unlawful conduct on the
    particular accused whereas, when the question of the
    requirements of public policy is under consideration, the
    focus will be on 'large matters of public policy' and the
    relevance and importance of fairness and unfairness to the
    particular accused will depend upon the circumstances of the
    particular case. In a case where both discretions are relied
    upon to support an application for the exclusion of a
    voluntary incriminating statement obtained by unlawful police
    conduct, it will commonly be convenient for the court to
    address first the question whether the evidence should be
    excluded on the ground that its reception and use in evidence
    would be unfair to the accused."

28. If the correct view was that there had been a de facto apprehension, I did not think it would be unfair to Schutze to admit the evidence. On my findings, he was not intimidated in any way. He readily accepted Keane's invitation to go into the unit to answer questions. He had sufficient presence of mind to get permission lock his car, including the steering lock, and I was disposed to agree with Miss Abraham that he was a self-confident, self-possessed sort of person who thought at the time that he could hold his own with the police. Relevant, too, to the question of fairness was my finding that he was cautioned at the commencement of the interview. I did not think that Keane, or any of the police officers, thought that a de facto apprehension had been made, or that there was any deliberate or reckless disobedience of the law. The crime the police were investigating was of the most serious kind. I thought that Schutze answered questions of his own free will. True it is that he asked for a solicitor later at police headquarters, but observing him as I did, I doubted whether he would have asked for one earlier at his unit if he had been given his rights at the outset. If, contrary to my view, there had been a de facto apprehension, I was not persuaded that the reliability or cogency of his answers was affected thereby.

APPLICATION BY SCHUTZE FOR A SEPARATE TRIAL
29. In the course of the discussion about whether I should exclude any of the interrogation on video of Cornelius, Mr Hevey, counsel for Cornelius, indicated that the defence to the first count was that there was no common purpose or joint enterprise, and that his client could not have known that murder or even the infliction of grievous bodily harm might take place. However, he said that her defence to the second count was one of duress. He argued that the admission of the interview was necessary to show the relationship that existed between the two accused, and Schutze's history of, and continuing, ill-treatment of his client. He said the record of interview put forward his client's case, and he did not want it edited. He said that his position as counsel at that stage was that he would not be putting her into the witness box.

30. Having heard Mr. Hevey's submission and considered it over an adjournment, Miss Nelson made a somewhat belated application for an order for a separate trial. She pointed out that a lot of the police interview of Cornelius was highly prejudicial to Schutze. Cornelius told the police that he was a violent man and that he was "into bondage and drugs". If Cornelius did not give evidence, her credibility would not be challenged. Schutze would be obliged to give evidence and would then be cross examined not only by the Crown, but also by counsel for Cornelius and that cross-examination would be far ranging. Mr. Hevey neither supported nor opposed the application for a separate trial.

31. I was referred to many of the leading cases in relation to separate trials, and in particular to the two Victorian cases of R v Demirok (1976) VR
244 and R v Gibb and McKenzie (1982) 2 VR 155. It was in Demirok's case at p254, in an oft-quoted passage, that the Full Court set out the reasons why there should ordinarily be a joint trial of accused persons charged with committing a crime jointly. In Gibb and McKenzie, the Full Court (Young CJ, Crockett and King JJ) said at p163:
    "Where three persons are charged with the murder of another
    and the Crown alleges that all three were present at the time
    of the killing, the interests of justice ordinarily require
    that they be tried together. The interests of justice are
    not confined to the interests of the accused. It would
    usually be scandalous and a serious blot on the
    administration of justice if the ordering of separate trials
    in such cases resulted in inconsistent verdicts: see R. v.
Demirok, (1976) VR 244, at p.254 where the other matters of
    public interest to be considered are also referred to. The
    fact that one accused alleges that he was coerced by the
    other so far from being a reason for separating the trials
    will generally be a reason for adhering to a joint trial."

32. I was also referred to R v Glover (1987) 46 SASR 310 at p312, R v Collie Kranz and Lovegrove (1991) 56 SASR 302, and R v Webb and Hay (1992) 59 SASR
563. At p585 in Webb and Hay, King CJ said:
    "The final point to be dealt with is the submission by Hay's
    counsel that there ought to have been separate trials. There
    are strong reasons of principle and policy why persons
    charged with committing an offence jointly ought to be tried
    together ... The principles were discussed in my judgment in
R v Collie (1991) 56 SASR 302 at 307-311, and it is
    unnecessary for me to cover that ground again. The
    considerations discussed in that judgment which lead to the
    conclusion 'that ordinarily persons accused of committing a
    crime jointly ought to be tried jointly' must, however, give
    way if there are sufficiently cogent considerations
    indicating the need for separate trials.

Mr Waye stressed that Webb did not give evidence and that the
    joint trial had the effect of the jury hearing Webb's
    statements to the police implicating Hay although they were
    not in law evidence admissible against Hay. That is a common
    feature of a joint trial and does not of itself render
    separate trials necessary. The judge considered that the
    situation could be sufficiently met by an adequate warning to
    the jury and he directed the jury in clear terms that Webb's
    statements out of court were admissible against him only and
    were not evidence against Hay. I see no reason to suppose
    that the jury did not heed that direction." (and see the
    remarks of Toohey J, (Mason CJ and McHugh J concurring) on
the appeal, reported in 68 ALJR 582 at p606))

33. Miss Nelson sought to rely on the decision of Cox J in The Queen v. Conlon (1982) 30 SASR 176, but I think that was a different case, as appears from the following passage at p 185, where his Honour said:
    "I emphasize that this is not a decision resting merely upon

    the weight of the prejudicial evidence that would be
    introduced were the joint trial to proceed. What weighs with
    me critically is the nature of the Crown case and, in
    particular, its relative weakness so far as a joint
    enterprise is concerned and so far, also, as an individual
    case against Mrs. Conlon, who will be the avenue for the
    prejudicial evidence, is concerned. Given the state of the
    case against her, as disclosed by the depositions, it is not
    too much to say that, if the two accused were to be tried
    jointly, Mrs. Conlon's objective role would for practical
    purposes be almost confined to acting as a stalking horse in
    the Crown's case against her husband."

34. I did not think the Crown case of joint enterprise here was weak. Cornelius accompanied Schutze in his car and showed him the way to the deceased's house. In her interview, she said three times that she knew Schutze was going to give Eames a beating. Schutze parked a short distance away from the house. She went to the door alone, knocked and then knocked again. Schutze stood back. Cornelius entered the house first and asked for her jack. Later, while Schutze was hitting Eames, she found some marijuana and put it in a bag. She disconnected the telephone. She put the piece of wood that Schutze had used in the bag. She collected her jack. She wiped the bedroom door handle. She put the marijuana, the piece of wood and the jack in the car. When she got home she told Schutze that his jeans should be washed, and she washed them. She tried unsuccessfully to burn the piece of wood and the bag. She put the resulting ashes in the garbage and the piece of wood in a sheet in her car. On the Monday (two days later), she apparently washed the sheet that the piece of wood had been wrapped in, and she went with Schutze to dispose of the piece of wood north of Gawler. Later she herself disposed of the jack near Virginia.

35. In all the circumstances, and having regard to well established principles, I was not persuaded to make the order sought by Miss Nelson.

APPLICATION BY THE CROWN TO EXCLUDE CERTAIN EVIDENCE OF THE WITNESS TRACEY PARKER
36. The witness Tracey Parker was called on behalf of Schutze. She lived next door to the deceased. She saw him socially "for drinks and coffees". She said that he offered, more than once, to sell her marijuana, speed and hash. She said that she noticed women living with him from time to time, including the accused Cornelius at one stage. The last time she saw him before his death was on Friday 26 November, about 6 pm. I heard part of her evidence on a voir dire. She said:
    "I was outside watering my garden and Chris arrived home in
    the car from what I thought was the holiday." (He had told
    her some days before that he was going to Sydney or Wagga.)
    "He said 'Hi, how are you? I'm feeling wrecked. I'm going
    to crash out. I will see you tonight, later on'. I said to
    him that I would be working overtime that night, so I
    wouldn't be home. He said 'Okay, I will see you tomorrow.'
    He went inside and, within two minutes, he came out. He said
    'I've been ripped off. I think I know who it is. I will
    catch you later', and then he took off. That was the last I
    saw of him."

37. It is convenient to mention here that there was evidence that the deceased was probably cultivating marijuana in the ceiling of his house, and evidence that a neighbour called Whatmore had observed another neighbour called Henderson coming out of the front door of the deceased's unit on Sunday afternoon, 28 November, in company with his girlfriend and carrying a pot plant. A possible inference, I suppose, was that it was marijuana.

38. Miss Nelson initially said that she sought to lead Parker's evidence because the Crown had alleged that Schutze had a motive to kill Eames, and that Parker's evidence indicating that on the eve of his murder Eames thought that he had been "ripped off" might lead the jury to believe that someone else had a motive to kill him, and that the evidence was therefore relevant. She denied that that the evidence was not led to prove the truth of what was said. She said it was not hearsay evidence. She said it was circumstantial evidence and that it was part of the res gestae. In a later submission, Miss Nelson said the evidence could be relevant to explain why the deceased had a piece of wood by his bed. Both Schutze and Cornelius had said as much in the course of their respective interviews.

39. Miss Nelson relied in part on the case of R v Hendrie (1985) 37 SASR 581. The Full Court held that upon a trial for murder evidence was rightly admitted of a conversation, deposed to by the husband of the deceased, between the husband and deceased shortly before her death. The appellant was well known to the deceased as a friend of her husband. He was a renovator of houses, and had done work on their house before. The conversation consisted of a discussion in the course of which a decision was made about the conversion of a window into a door in their bedroom. The work was to be done by the appellant. The prosecution sought to prove the conversation as tending to establish an intention on the part of the deceased to do something about this project, thereby explaining why she would be in the bedroom with the offender without a struggle, and why therefore the signs of a struggle were confined to the bedroom. King CJ, with whom the other members of the court agreed, said at p585:
    "In my view, there was no hearsay element in the evidence
    which was adduced relating to this conversation. What was
    sought to be proved by the prosecution was the reason why the
    deceased was in the bedroom with the offender without a
    struggle. The existence of an intention on the part of the
    deceased to have work done in relation to the window tended
    to explain that. The intention was therefore a relevant
    fact. The conversation between the deceased and her husband
    was original evidence tending to prove the state of mind and
    intention of the deceased at the time when the conversation
    took place and by inference her intention and state of mind
    on the morning of the crime in relation to the window.

It is well-established law that a person's state of mind may
    be proved by contemporaneous statements made by that person.
    Such statements are not hearsay because they are not adduced
    for the purpose of proving the truth of the statements. They
    are original circumstantial evidence tending to establish the
    state of mind. Their evidentiary value is derived from
    experience of human behaviour which indicates that people
    tend to express their intentions or their states of mind.
    For that reason what a person says is some evidence of what
    he is thinking. It is circumstantial evidence which may form
    a basis for an inference as to his intention or other state
    of mind.

This evidence, as it seems to me, was properly admitted
    because it consisted of statements by the deceased which
    tended to indicate that she had an intention with respect to
    the window. The existence of that intention with respect to
    the window tended to provide the explanation of her being in
    the bedroom and of the first signs of struggle occurring in
    the bedroom. In my opinion, therefore, the evidence was not
    objectionable as hearsay and was properly admitted."

40. At p.587, Cox J said:
    "It was open to the Crown to prove, if it could, why
    Mrs. Olds went into the bedroom, apparently with the person
    who strangled her, and why that day the bedroom window
    curtain and fittings had been taken down. To prove the
    conversation between Mrs. Olds and her husband the previous
    day about their plans for the bedroom was to provide evidence
    from which Mrs. Olds' intention, and therefore her actions on
    the day she was murdered, might possibly be inferred. Those
    circumstances in turn had a bearing on the possible identity
    of the murderer that has been explained by the Chief Justice.
    To employ Wigmore's terminology, the evidence of the
    conversation the previous day - that is, statements,
    including expressions of intention, by both the victim and
    her husband - was admissible because it was to be used
    circumstantially, not testimonially. (See generally Wigmore
    on Evidence, Chadbourne Revision, II, par. 266; VI, pars.
    1788-1790.) So regarded, it was not hearsay evidence at
    all."

41. Hendrie's case and portion of the reasoning of King CJ (supra) were quoted with approval by the High Court in Walton v The Queen (1989) 166 CLR
283.

42. Miss Nelson sought to rely on Walton's case. The Crown case there was based on the evidence of the accused's girlfriend who said that the accused informed her that he had arranged to meet the deceased at the Elizabeth Town Centre on 5 December, 1985 and that he had driven her into the country and killed her. In addition the Crown called a number of witnesses, including a Rhonda Bowett, all of whom stated that the deceased had told them she had arranged to meet the accused at the Centre on 5 December. Rhonda Bowett also gave evidence that she was present when the deceased received a telephone call. After speaking for some time, the deceased called to her son saying "M., daddy's on the phone". The boy then said "Hello daddy", whereupon the deceased continued her conversation with the caller and agreed to meet him at the Centre on 5 December.

43. It was held in the joint judgment of Wilson, Dawson and Toohey JJ that except in so far as it related to the words uttered by the boy the evidence of Rhonda Bowett was admissible on the ground that it showed that the deceased believed that the person that she was arranging to meet was the accused. Miss Nelson also referred to Pollitt v R (1992) 108 ALR 1.

44. In my opinion the facts in all these cases were far removed from those in the case at bar. I did not think the evidence revealed any relevant "intention" on the part of the deceased. I agreed with Miss Abraham that it was too big a leap to argue that because someone had a motive to rob him that that person or some other had a motive to beat him to death. If the evidence was not hearsay, (and I was inclined to think it was hearsay), its relevance was so tenuous and its probative value so slight that I did not think it should be admitted. (See Pollitt v R (supra) at p36. Further, and to borrow the language of Barwick CJ in Vocisano v Vocisano (1974) 130 CLR 267 at p273, I did not think there was "sufficient contemporaneity of the statements made ... to warrant the conclusion that (they) were made as part of the res (gestae)".

FAILURE TO DIRECT THE JURY THAT THE DECISION BY THE CROWN NOT TO CALL CRAIG WILMOTT AS A WITNESS MIGHT GIVE RISE TO AN INFERENCE ADVERSE TO THE CROWN
45. I referred to Craig Wilmott earlier in these reasons. He gave two statements to the police, and he was tendered as a witness at the committal hearing when he was cross-examined by counsel then appearing for Schutze. The Crown did not include his name on the back of the information, and he was not called at the trial. It emerged during the trial that he was in gaol in or about early October 1993, and that he was in gaol again at the time of the trial. A perusal of his statements, and of his cross- examination, clearly indicated that he might not be a convincing witness, but also that his evidence would be unfavourable to the case of Schutze.

46. In her address, Miss Abraham said:
    "Now the Crown, when it presents it's case, has a number of
    obligations and duties, obligations and duties relating to
    fairness and duties to the court and matters like that. As
    his Honour quite clearly pointed out yesterday because the
    police take a statement from a person doesn't mean that the
    person has to be called. There are a number of very basic
    questions, have to be relevant, admissible, matters like
    that. But the Crown does have an obligation in relation to
    calling witnesses and it can take into account a number of
    factors. The Crown, I suggest, has an obligation to call
    witnesses that it regards as being able to assist you in
    explaining the events, a witness of truth, clearly witnesses
    that you can consider. Might reject them, accept them, they
    are all matters for you.

Mr Wilmott, however, ladies and gentlemen, you might think,
    as we all know, was the boyfriend of Miss Cornelius, and we
    know exactly where he is now. Clearly the onus is on the
    Crown to prove it's case and to prove it, beyond reasonable
    doubt. I make no bones about that. There is absolutely no
    obligation on the defence to do anything at all. But, ladies
    and gentlemen, the defence are entitled to call witnesses,
    indeed they did. If he's Miss Cornelius' boyfriend he could
    have been called by the defence, if they so desired.

Ladies and gentlemen, its interesting that what Bernard
    Schutze says on the phone to McLaughlin is that it's
    McLaughlin and Tasker that could send him down. He doesn't
    mention Wilmott. I think obviously because of Wilmott's
    position in this matter ..."

47. In her address, Miss Nelson said to the jury:
    "You haven't heard from Mr Wilmott. Let me go back to
    something I said this morning. You are the only judges of
    fact in this case. You are the people who decide who is a
    witness of truth and who is not. You are the people who
    decide which evidence is reliable and which evidence is not.
    The prosecution have tried to explain away Mr Wilmott's
    absence. You heard what the learned Crown Prosecutor said
    this morning. You might think that she has made a decision
    which was rightfully your decision. It's up to you to have
    decided whether what Mr Wilmott had to say was to be accepted
    as against what Mr McLaughlin might have said. You don't
    have the benefit of hearing what he had to say. I think
    you're entitled to infer that the fact that he isn't here and
    he hasn't given evidence is because the Crown doesn't believe
    that he would support the Crown case. That's not to say he
    would have been an untruthful witness, and, in any event,
    that was a decision for you to make. But I suggest to you
    that that's a big gap. Here you have one of the people here
    calling a witness and not the other. You can't compare their
    version of events, so you only have Mr McLaughlin's, and you
    have to think to yourself 'Well, obviously Mr Wilmott has
    going to say something different, because he hasn't been
    called by the Crown, therefore he doesn't advance their
    case'. It's not as though the Crown don't know where he is,
    it's not as though he's fled the country. He's not only
    available, you might think he is very available to the Crown;
    he is currently a guest of her Majesty's, and no doubt could
    have been produced in a jiff without any difficulty. That's
    a matter I would ask you to bear in mind."

48. The leading case on the failure of the prosecution to call a witness is The Queen v. Apostilides (1984) 154 CLR 563. In a joint judgment at p575, Gibbs CJ, Mason, Murphy, Wilson and Dawson JJ set out a number of general propositions applicable to the conduct of criminal trials in Australia, namely:
    "1. The Crown prosecutor alone bears the responsibility of
    deciding whether a person will be called as a witness for the
    Crown.

2. The trial judge may but is not obliged to question the
    prosecutor in order to discover the reasons which lead the
    prosecutor to decline to call a particular person. He is not
    called upon to adjudicate the sufficiency of those reasons.

3. Whilst at the close of the Crown case the trial judge may
    properly invite the prosecutor to reconsider such a decision
    and to have regard to the implications as then appear to the
    judge at that stage of the proceedings, he cannot direct the
    prosecutor to call a particular witness.

4. When charging the jury, the trial judge may make such
    comment as he then thinks to be appropriate with respect to
    the effect which the failure of the prosecutor to call a
    particular person as a witness would appear to have had on
    the course of the trial. No doubt that comment, if any, will
    be affected by such information as to the prosecutor's
    reasons for his decision as the prosecutor thinks it proper
    to divulge.

5. Save in the most exceptional circumstances, the trial
    judge should not himself call a person to give evidence.

6. A decision of the prosecutor not to call a particular
    person as a witness will only constitute a ground for setting
    aside a conviction if, when viewed against the conduct of the
    trial taken as a whole, it is seen to give rise to a
    miscarriage of justice."

49. In my direction to the jury I said:
    "The other matter that I want to comment on briefly is the
    absence of Craig Wilmott from the witness box. Ms Abraham
    criticised the defence, perhaps more particularly the
    defendant Cornelius, for not calling Craig Wilmott as a
    witness, and I think both defence counsel in their turn
    criticised the prosecution for not calling him as a witness."
    (In fact it was only Miss Nelson.) "Well, you've heard that
    at the time that Jane Humphreys spoke of an incident I think
    back on the long weekend in October, Craig Wilmott was in
    gaol, and you also heard evidence I think from one of the
    police officers last week that he is in gaol at the moment.
    It may well be that the judgment of the respective counsel
    not to call him was correct, but I put it to you that, in all
    of the circumstances of this case, you should not draw any
    inference adverse to either the prosecution or the defence
    from his absence from the witness box. I suggest that you do
    not speculate any further about that matter."

50. I do not wish to add anything in these reasons to what I said in my direction on this matter.