R v Carmichael - [2020] QSC 326

SUPREME COURT OF QUEENSLAND

CITATION:	R v Carmichael [2020] QSC 326
PARTIES:	R v CARMICHAEL, Tony Boyd (defendant)
FILE NO:	Indictment No 1892 of 2019
DIVISION:	Trial Division
PROCEEDING:	Trial (Judge alone)
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	28 October 2020
DELIVERED AT:	Brisbane
HEARING DATE:	16, 19, 20, 22 October 2020
JUDGE:	Applegarth J
VERDICT:	Not guilty.
CATCHWORDS:	CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – HOMICIDE – MURDER – VERDICT – where the alleged deceased has not been seen since 1997 – where the defendant is charged on indictment with his murder – where the prosecution contends that the defendant killed the alleged deceased by deliberately shooting him in the head – where the case against the defendant is partly circumstantial but depends on a confession allegedly made by the defendant to a Ms Messer – whether the evidence establishes to the requisite standard that the defendant made such a confession to Ms Messer – whether the defendant is guilty of murder Criminal Code, s 300, s 302, s 614, s 615, s 615C R v Pentland [2020] QSC 231, cited Watson v Foxman (1995) 49 NSWLR 315, cited
COUNSEL:	M T Whitbread for the Crown D J Walsh for the defendant
SOLICITORS:	Office of the Director of Public Prosecutions (Queensland) for the Crown A W Bale & Son Solicitors for the defendant

The defendant is charged that on a date unknown on or about 7 May 1997 at Maryborough or elsewhere in the State of Queensland, he murdered Gregory John Armstrong. The Crown case is that he killed Mr Armstrong by deliberately shooting him in the head.
In recent times the matter was case-managed by Davis J who, on 18 September 2020, ordered pursuant to ss 614 and 615 of the Criminal Code that the defendant be tried by a judge sitting without a jury. Section 615C requires that I record:
(a)the principles of law that I have applied; and
(b)the findings of fact on which I have relied.
The offence of murder
Before the defendant can be found guilty of the charge of murder, I must be satisfied beyond reasonable doubt of four things:
(a)that Mr Armstrong is dead;
(b)that the defendant killed him, that is, he caused his death;
(c)that the killing was unlawful, that is, not authorised or justified or excused by law; and
(d)that the defendant killed Mr Armstrong intending to cause his death, or at least intending to cause him grievous bodily harm.
The issues in this case
The Crown and the defence agreed on many matters which became the subject of a set of formal admissions which were tendered pursuant to s 644 of the Criminal Code.
Because of the narrowing of factual issues in the case during pre-trial management by Davis J, there were far fewer witnesses than anticipated many months ago. The essential issue in the case was distilled by Davis J in a pre-trial ruling delivered on

30 September…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Carmichael

Details

AGLC: R v Carmichael [2020] QSC 326
Case: [2020] QSC 326
Decision Date: 28 October 2020

CaseChat Overview and Summary

In the case of R v Carmichael, the defendant was charged with the murder of Greg Armstrong, who had been missing since 1997. The prosecution argued that the defendant had confessed to Ms Messer that he had shot Greg Armstrong in the head. The case hinged on Ms Messer’s testimony as she was the only witness to the alleged confession. The central issue for the court was whether the evidence, particularly Ms Messer’s testimony, established to the requisite standard that the defendant made the confession and whether this confession was credible enough to prove the defendant's guilt of murder beyond reasonable doubt.

The court examined Ms Messer’s credibility and reliability, finding significant doubts about her testimony. Her evidence was inconsistent and lacked corroboration. The court noted that Ms Messer had a history of drug use and had credibility issues due to her lifestyle and past behaviour. The court was also unconvinced by the manner in which Ms Messer recounted the conversation with the defendant, finding it implausible and lacking in detail. Additionally, the court found that the prosecution had not provided sufficient evidence to support the claim that the defendant was present at the Jew Hole on the night in question, further weakening the prosecution's case.

Based on these findings, the court concluded that the evidence did not establish to the requisite standard that the defendant made the alleged confession. Consequently, the court found the defendant not guilty of murder. The court highlighted that the prosecution’s case was largely circumstantial and relied heavily on Ms Messer’s uncorroborated testimony, which was deemed unsatisfactory and unreliable. The court emphasised the necessity for higher standards of proof in murder cases, particularly when the evidence is circumstantial and relies on a single witness with questionable credibility.

The court ordered the defendant’s immediate release as the verdict of not guilty was returned. The court also noted the importance of thorough and reliable evidence in securing convictions for serious crimes such as murder, especially in cases where the body of the alleged victim has not been found.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Ms Messer is a critical witness for the prosecution since she is the only witness to whom the defendant is alleged to have confessed to killing Mr Armstrong. As noted, the prosecution case depends upon acceptance of her evidence that such a confession was made. For reasons which I shall give, her evidence was unsatisfactory. Substantial doubts over her credibility and reliability as a witness leave me in considerable doubt as to whether the defendant made the alleged confession to her.Ms Messer’s evidence-in-chief In 1997 Ms Messer was living at Albert Street, Maryborough with her two young children. She knew Greg Armstrong through a circle of friends. Greg Armstrong had been a casual acquaintance for a few months. He and Ms Messer used to take drugs and “get high together”. They mainly used amphetamine. Ms Messer also knew the defendant, who lived nearby. He was simply an acquaintance, whom she saw when “scoring drugs or selling drugs or just getting – taking drugs together”. A closer friend of Ms Messer than the defendant was Les Ryan. Ms Messer and Mr Ryan were not in a sexual relationship but they were, in her words, “pretty good acquaintances. Pretty good friends”. After Greg Armstrong disappeared, Les Ryan would come over to Ms Messer’s place on a regular basis. They would consume heroin together. Ms Messer gave evidence of an occasion when the defendant turned up at her home one night. Her children had gone to bed and she thought that he must have arrived at around 7.30 pm. He put a couple of articles of clothing on a chair just inside her front door. Ms Messer said that something appeared to be troubling him. It was not unusual for the defendant to visit her home when he was upset because he had a difficult relationship with his girlfriend Michelle and she could be “quite abusive”. On this night, however, the defendant seemed different and he did not say anything about where he had been for a while. Ms Messer and the defendant used amphetamines after he arrived. In her evidence on Monday, 19 October 2020, Ms Messer gave the following recollection of a conversation which she had with the defendant some time that night:“He said that they were camping out at the Jew Hole. Critter – Shane, Critter’s son, him and Les. And Greg had dared him. They took him out there because Greg owed money. And Greg had said to him, “Go on, then. Pull the trigger. Pull the trigger. Shoot me. Go on, then. Do it.” And he did it twice. Shot Greg, and he turned up at my doorstep. And this sounds very callous, but the body and the gun were still out there. And I said to him, “Well, you better go and deal with it, then, hadn’t you?” And that sounds terrible. She explained that the person named Shane was Shane Josefski, and that “Critter’s son” was young at the time, aged maybe 12 or 13. Ms Messer said that she did not know how the group, including Mr Armstrong, got out to the Jew Hole. The police evidence explained that the Jew Hole is a fishing spot on the Tuan Creek. It has that name because jewfish could be found there. The location of the Jew Hole is depicted more accurately on Exhibit 7. Exhibits 2, 3, 4 and 5 are photos of it and the nearby camping area that were taken by police during the initial investigation. The Jew Hole is about 30 kilometres from Maryborough and retired Detective Senior Sergeant Lindsay thought it would take more than half an hour to drive there.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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