R v Carmody
[2003] QCA 482
•7 November 2003
SUPREME COURT OF QUEENSLAND
CITATION:
R v Carmody [2003] QCA 482
PARTIES:
R
v
CARMODY, Wayne David
(appellant)FILE NO/S:
CA No 364 of 2002
SC No 289 of 2002DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
7 November 2003
DELIVERED AT:
Brisbane
HEARING DATE:
17 October 2003
JUDGES:
Davies and Williams JJA and Wilson J
Judgment of the CourtORDER:
Appeal against conviction dismissed
CATCHWORDS:
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - UNREASONABLE OR INSUPPORTABLE VERDICT - WHERE EVIDENCE CIRCUMSTANTIAL - where appellant and another convicted of murder - where prosecution case circumstantial - where appellant present at scene - where co-accused not sighted at murder scene - whether verdict unreasonable having regard to the evidence
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - MATTERS CONNECTED WITH CONDUCT OF DEFENCE - LEGAL REPRESENTATION - GENERALLY - where appellant complained about manner in which counsel conducted his case at trial - where appellant's de facto gave evidence adverse to the appellant - where appellant's de facto signed written statement to the effect that the statements she gave to police were made under duress - where appellant's counsel aware of this written statement prior to trial - where counsel did not cross-examine appellant's de facto on her statement - whether appellant misrepresented at trial
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - JOINT TRIAL OF SEPARATE PERSONS - where appellant and another jointly tried for murder - where trial judge directed jury during summing up that conversation between co-accused and police was not admissible against appellant - where no other evidence admissible only against co-accused - whether trial judge adequately directed the jury in relation to evidence against each co-accused
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - OTHER MATTERS - where trial judge directed the jury that verdict of manslaughter against appellant open notwithstanding verdict of murder against co-accused - where trial judge directed jury that verdict of manslaughter only open in a technical sense - whether trial judge misdirected the jury on this point
Criminal Code 1899 (Qld), s 7, s 8, s 302(1)(b)
COUNSEL:
Appellant appeared on his own behalf
C W Heaton for respondentSOLICITORS:
Appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for respondent
THE COURT: As appears from what we have said in our judgment dismissing an appeal by Brett Edward Blatch, Carmody appeals against conviction for the same murder. We shall not repeat any of the factual matters contained in our reasons in Blatch which we adopt for the purpose of these reasons. It is plain that the jury did not conclude that the appellant had shot Davies. The evidence was inconsistent with that and the Crown case was that it was Blatch who had shot the deceased.
The case against the appellant was put on a number of possible bases. They were:
1. the appellant aided Blatch to kill the deceased by enticing the deceased out of his house to talk knowing that Blatch intended to kill the deceased; or counselled or procured Blatch to kill the deceased by planning with him beforehand to do that: Criminal Code s 7(1)(c) and (d).
2. The intentional killing of the deceased by Blatch was a probable consequence of the prosecution of an unlawful purpose which the appellant and Blatch had formed a common intention to prosecute: s 8.
3. The intentional discharge of the gun in the direction of the deceased was a probable consequence of the prosecution of that unlawful purpose and was of such a nature as to be likely to endanger human life: s 8 and s 302(1)(b).[1]
[1]Harwood v R (2002) 188 ALR 296.
In addition to evidence referred to in our reasons in Blatch that Davies was threatening to inform the police of Blatch's whereabouts, thereby putting the appellant's business at risk, there was other evidence that the relationship between the deceased and the appellant, once friendly, had deteriorated to a point where they had exchanged abuse and threats. From the appellant's point of view, it seemed, he had assisted the deceased by providing expertize and equipment to set up the latter's hydroponic cannabis plantation in exchange for one-half of the profits from the sale of the crop. When the crop was harvested the deceased apparently indicated that he was no longer prepared to share the profits from its sale and told the appellant that he had dismantled and partly broken the appellant's equipment but that the latter could collect it. All of this, it was said by the Crown, provided a motive for the appellant to murder the deceased.
The first basis for a conviction of murder: s 7(1)(c) or (d)
From the evidence of McDougall, the jury were asked to infer that the appellant and Blatch travelled to the deceased's home; and that the appellant knew, when he and Blatch went to the deceased's home, that the gun was being carried in the car and that Blatch, with the gun, would remain concealed whilst the appellant enticed the deceased out of his house. And the conversation between the appellant and the deceased on the night in question was unusual, it was submitted, in that the appellant said very little notwithstanding his expressed intention of going to the deceased's place to "talk" to him; presumably to confront him to demand satisfaction in respect of Davies' debt and the broken equipment. The failure of the appellant to so confront Davies was, it was submitted, inconsistent with his previous attitude towards Davies which had been aggressive and abusive. It was contended that his conduct was inconsistent with confronting the deceased and consistent only with making the deceased available as a target for Blatch.
On the other hand, the conversation between the appellant and Blatch, overheard by McDougall, was to the effect that Blatch would go with the appellant only to "back him up", which we would understand to mean to discharge the gun only if and when he thought necessary, though that was left unexplained. And the conduct of the appellant and Blatch after the shooting appears to be inconsistent with an arrangement made between them beforehand to kill the deceased. We do not think that the evidence was sufficient to justify a reasonable conclusion that the appellant either aided Blatch to kill the deceased knowing that he intended to do so or that he counselled or procured him to do so.
The second basis: s 8
That section provides:
"When 2 or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence."
Both on this basis and on the third basis it is necessary first to identify the unlawful purpose. The unlawful purpose identified by the Crown at trial was to frighten or intimidate. However what the appellant and Blatch spoke of doing, according to McDougall, and what they appear to have done, according to Mrs Davies and Ryan, was inconsistent with any such common purpose. It is true that the appellant saying he intended to "talk" to the deceased is consistent either with attempting to have a reasonable conversation or with threatening. But if Blatch was to hide in the bushes the threatening was not intended to include the use of the gun or, at least, not initially.
What in fact occurred, as we have already described was that Blatch remained hidden and the appellant, far from threatening or intimidating, appeared to act somewhat timidly himself in listening to and apparently acknowledging the deceased's criticisms and concerns. Consequently we do not think it would have been reasonable to conclude that the shot was fired in the prosecution of such a purpose.
The other possible unlawful common purpose which the learned trial judge outlined to the jury was that Blatch would remain hidden with the gun but would shoot if and when he thought it necessary. That was a much more likely common purpose, being consistent with what the appellant and Blatch were overheard to say and with what appeared to take place; and it would have been an unlawful purpose.
The question, then, on this basis, is whether the intentional killing of the deceased by Blatch was a probable consequence of the prosecution of that purpose.
The third basis: s 8 and s 302(1)(b)
We do not think there could be any doubt that the intentional discharge of this gun in the direction of the deceased was of such a nature as to be likely to endanger the latter's life. The question on this basis then, is whether that discharge was a probable consequence of the prosecution of the purpose that Blatch would "back up" the appellant in circumstances in which what backing up meant had been left unexplained.
In our opinion there were several reasons which, together, justified a reasonable conclusion by the jury that the intentional discharge of the gun in the direction of the deceased was a probable consequence of the prosecution of that unlawful purpose. In the first place, Davies was speaking in an aggressive way, as it was probable from his previous conduct he would. Secondly, from what Davies had earlier said and from what he said that night, it was likely that, unless he was killed, he would disclose Blatch's whereabouts to the police with whatever consequences ensued to Blatch and the appellant. It follows that we do not think that the jury would have been acting unreasonably in so concluding.
The directions of the learned trial judge on this question
His Honour told the jury:
"So far as the person who did not fire the shot is concerned, his criminal responsibility depends on analysis of a number of other things. If you are not satisfied that there was an agreement to carry out an unlawful purpose that had been formed before they went to Mr Davies' home - I am sorry, I will start that again.
If you are satisfied that there was an agreement to carry out an unlawful purpose when they went to Mr Davies' home, the first question is what their common intention was. Now, agreeing to go to someone's home just to discuss something with them is not an unlawful purpose [for] the purposes of this case. Agreeing to go there for the purpose of intimidating the person by confronting them with and threatening them with a rifle would involve an unlawful purpose and agreeing to go there on the basis that the back-up person could use the rifle if he thought he should, even though it was in circumstances where it was not lawful to use it, that would also involve an unlawful purpose.
Now, if you are satisfied beyond reasonable doubt that one of those kinds of agreements had been made, the next question is whether the shooting in the circumstances in which it happened was a probable consequence of carrying out the purpose that they had actually agreed on. That means whether it was a likely consequence of carrying out the agreed plan that the gun would be used in the circumstances in which it was. If it was not a likely consequence of the agreed plan, you should acquit the person who did not actually do the act. If you have a reasonable doubt whether it was a reasonable consequence of the agreed plan you should also acquit him.
Now, as I have said, one of the agreements suggested is to do something if particular circumstances arose. Now, so far as this case is concerned, it has been implicit in some of the submissions that the term 'back-up' meant that Blatch would only use the rifle if violence occurred to Carmody. And it has been argued that since Davies was obviously not using violence and there was nothing that could be suggested or that could have suggested to an observer that he was going to, that there was no unlawful common purpose operating at the time the shot was fired.
It was then argued from that that shooting him in those circumstances went beyond what was a probable consequence of any common purpose or agreement that had been formed.
Now, if you act on the basis that Blatch fired the shot where the circumstances for using the violence had not arisen and in circumstances where there was nothing that could have suggested to an observer that violence was likely to be offered, the question is whether using the firearm in those circumstances is proven beyond reasonable doubt to be a probable consequence of the agreement.
Now, just to draw all of that back into a short statement of the steps. The first step is that you work out whether there was a common intention to prosecute an unlawful purpose.
You identify what they both agreed to do. You then ask whether what they'd agreed to do was unlawful. Then you ask whether the act done by the person who actually fired the shot was a probable consequence of putting that common intention into effect, and unless you answer all of those questions in the positive, unless you answer them 'Yes', you could not convict the person who did not actually fire the shot."
It might be thought, at first sight, that one difficulty with those directions is that the learned trial judge did not distinguish between the second and third bases referred to above. However what his Honour did was to simplify the strongest Crown case for the jury, the third basis, sensibly leaving out the possibly confusing distinction between the second and third bases.
His Honour later said:
" You also have to ask yourself whether the true explanation is that something happened or something was said that caused Blatch to shoot Davies for his own reasons; and the next issue then is whether it was beyond the terms of any arrangement between him and Blatch. If you were satisfied that Blatch fired the shot, but while Carmody was there, the shooting went beyond a likely consequence of the plan that they had made, you would acquit Carmody.
If you did conclude that there was an arrangement for Blatch to hide in the bushes as back-up in case violence occurred, the issue really is whether you are satisfied that the shooting of Davies was a probable consequence of that arrangement and that, I think you may think is an important issue in the case."
The only criticism of this passage could be that it stated the unlawful purpose too narrowly and consequently too favourably to the appellant: to back up in case violence occurred rather than to back up by discharging the gun when he thought appropriate. However his Honour had, in the earlier passage which we have quoted, stated a possible construction of "to back-up" in this broader way.
It is necessary to quote a further passage in his Honour's directions which followed shortly after this because of a specific complaint about it in this appeal:
" Now, in relation to the issue of whether there was a plan and whether what happened was a likely consequence of carrying out of the plan, if you found the shooter guilty of murder, it may be possible technically for you to find manslaughter open in respect of the person who did not do the shooting.
But realistically in this case, since the crux of the Crown case is that what happened was a likely consequence of carrying out the unlawful common purpose of going with the firearm to use it if a certain situation arose, you may think that it would not be realistic to find that an unlawful killing without the necessary intent was a likely consequence but a killing with the intent was not. So realistically you may think that while manslaughter is technically open the verdict of manslaughter is not really open in the case of the non-shooter on the facts that I have referred you to."
The grounds of appeal
The appellant's proposed grounds of appeal as they appear in his extensive written outline are:
"1. The evidence is incapable in law of proving that the Appellant 'Carmody' was in the company of Brett Blatch at the scene.
2. The evidence is incapable in law of proving that the car the Appellant 'Carmody' was in stopped at any time to pick anyone up.
3. The evidence is incapable in law of proving that the Appellant 'Carmody' had any knowledge at all that Brett Blatch was at the scene nor if he was armed.
4. The Appellant was misrepresented at Trial.
5. The Verdict was:-
(a) Unsafe and Unsatisfactory
(b) Against the Weight of Evidence6. I would ask the Court to amend the notice of appeal to include:-
(c) That the Judge erred in failing to properly direct the Jury in relation to evidence through the Trial and in Summation.
(d) That the Trial Judge erred in his summing up of the case in stating that Manslaughter was only open in a technical sense."
Grounds 1, 2 and 3 must be rejected for reasons which we gave in the Blatch appeal. In short, from the evidence of Kerry Davies, Ryan Davies and McDougall the jury were entitled to infer that the appellant and Blatch were at the scene of the murder together and returned from it.
In our opinion ground 5, the unsafe and unsatisfactory ground, is the only one of any substance. For the reasons which we have given we do not think it was reasonably open for the jury to conclude that the appellant and Blatch were engaged in the prosecution of the unlawful purpose of threatening or intimidating the deceased. The concealment of Blatch with the gun and the passive approach of the appellant to his confrontation with the deceased are inconsistent with the prosecution of any such purpose.
On the other hand, however, we think it was reasonable for the jury to infer from the evidence of McDougall that the appellant and Blatch had a common intention to prosecute the unlawful purpose that, whilst the appellant was talking to the deceased, Blatch would "back him up" by remaining concealed with the loaded gun and use it if and when he thought appropriate. And we think it was reasonable to conclude at least that intentional discharge of the gun in the deceased's direction was a probable consequence of the prosecution of that purpose and that it was an act of such a nature as to be likely to endanger human life.
Ground 4 appears to be a complaint about the manner in which the appellant's counsel conducted the case on his behalf at his trial. In particular it appears to be a complaint that the appellant's counsel failed to attempt to discredit McDougall on the basis of statements by her that police had put pressure on her, including threatening to charge her as an accessory to the murder. There are a number of points which should be made about that complaint.
First, it is true that, before the trial, the appellant's solicitor had in his possession a written statement by McDougall which we have seen. It asserts that certain statements which she had made to police prior to that date, 12 October 2001, were not "accurate or correct". But this was, she said, because they were made "under durress [sic] and the influence of my partner Wayne D Carmody and the detectives involved in the taking of the statements". The statement made under the duress and influence of the appellant may well be a reference to a statement, which the appellant apparently insisted on McDougall memorizing, that the appellant had seen an unidentified man running away from the murder scene. Whether that is so or not, it is understandable that the appellant's counsel would not wish to cross-examine her on a statement in which she said she had been subjected to duress by the appellant.
Secondly, the appellant was permitted in this Court to adduce evidence from Mark Richards and his own sister as to statements by McDougall to them to the effect that because of pressure from police, she had made false statements.[2] To the extent that this was sought to be a ground of complaint against the appellant's counsel or solicitors at his trial, there is nothing to indicate that this evidence was at any relevant time made known to them. But even if it had, it would have to have been weighed against the above written statement of McDougall in order to decide whether it should have formed the basis of cross-examination of her. Richards was a friend of the appellant. It is not difficult to see why McDougall, having given a statement implicating the appellant, might seek to make some excuse for this to him and to the appellant's sister. In those circumstances we do not think that, even if he had been aware of the evidence of these persons before trial, counsel was in any way incompetent in not putting it to McDougall.
[2]The Court did not admit an affidavit by the appellant deposing to what these and another person had told him.
Thirdly, these contentions must be seen in the light of the case which, it seemed before this trial commenced, would be made by the Crown and the case which the appellant wished to advance. Until Kerry Davies gave evidence it was thought, from her evidence given in the committal proceedings, that she might say that it was the appellant who had shot the deceased. It was therefore important to the appellant's case to have Blatch present at the scene and McDougall's evidence supported the inference that he was. The appellant, however, did not wish to implicate Blatch but to put forward one (or possibly both) of two quite fanciful propositions; that an unknown man in army greens had run away from the scene after the murder or that Kerry Davies had been implicated in it in some way. In those circumstances, the appellant's legal advisers had a very difficult path to tread which, it seems to us, they did with competence. For those reasons we think that this ground fails.
Ground 6(c) appears to be a complaint, like Blatch's, that the learned trial judge failed adequately to direct the jury to the evidence which was not admissible against him. However his Honour did direct the jury that evidence of Blatch's conversation with a police officer was not admissible against the appellant and there does not appear to have been any other evidence admissible against Blatch which was not also admissible against the appellant.
Ground 6(d) refers to the last passage which we set out earlier from his Honour's summing up. It is true that a verdict of manslaughter against the appellant was open notwithstanding a verdict of murder against Blatch. But that would be so only if intentional killing of Davies was not a probable consequence of the prosecution of the unlawful purpose and if, though intentional discharge of the gun was, it was not of such a nature as to be likely to endanger Davies' life.
In saying "you may think that it would not be realistic to find that an unlawful killing without the necessary intent was a likely consequence but a killing with the intent was not" his Honour was adverting to the unreality of a conclusion that the probability of a discharge of the gun at Davies would not have been with the intention of killing him. We agree. But even if that distinction between the probability of intentional discharge and the probability of intentional killing could have been realistically made, there was the further unreality in concluding that that probable intentional discharge was not likely to endanger Davies' life. We do not think that his Honour erred in saying what he did and, by failing to mention the second unreality, his direction unduly favoured the appellant.
In our opinion for those reasons the appeal against conviction must be dismissed.
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