R v Carter
[2000] VSCA 6
•15 February 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 324 of 1998
| THE QUEEN |
| v. |
| EMMA KATE CARTER |
---
JUDGES: | CHARLES & CHERNOV, JJ.A. and HEDIGAN, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 16-18 June 1999 | |
DATE OF JUDGMENT: | 15 February 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSCA 6 | |
---
Criminal law – Evidence – Admissions – Secretly taped conversations – Admissions to friend –Agent of police – Voluntary statements – Whether admissions elicited by friend – Discretion to exclude – Unfairness discretion – Public policy – R. v. Swaffield; Pavic v. R. (1997) 192 C.L.R. 159.
Criminal law – Murder – Charge of murder against two offenders – Separate trials – Co-offender's plea of guilty to manslaughter accepted by Crown – Acting in concert and aiding and abetting – Whether verdicts inconsistent – Judge's directions to jury as to acting in concert and aiding and abetting.
---
APPEARANCES: | Counsel | Solicitors |
For the Crown | Mr. P.A. Coghlan, Q.C. | P.C. Wood, Solicitor for Public Prosecutions |
| For the Applicant | Mr. D. Grace, Q.C. Ms. S. Stokes | Stary & George |
THE QUEEN v. EMMA KATE CARTER
CHARLES, J.A.:
On 27 November 1998 the applicant, then 21 years old, pleaded not guilty in the Supreme Court at Melbourne to a presentment containing a single count alleging that she had been guilty of the murder of Rebecca Parkes. On 3 December 1998 the jury returned a verdict of guilty, and after a plea on 16 December the applicant was sentenced to be imprisoned for 14 years with a non-parole period of nine years.
The applicant now seeks leave to appeal against conviction on the grounds that –
1.The judge erred in admitting evidence of covert tape-recordings between the applicant and Warren and Ingrid Eyles made on 9 and 10 May 1997.
2.The judge failed to adequately charge the jury in relation to the principles of acting in concert and aiding and abetting.
3.The verdict is unsafe and unsatisfactory.
4.The verdicts of the applicant and the co-accused Jason Jackson are inconsistent.
5.The Crown's acceptance of a plea of manslaughter by the co-accused, Jason Jackson, has resulted in a miscarriage of justice and justifies the substitution of a verdict of manslaughter for the applicant.
The applicant was originally committed for trial with two co-offenders, Jason Jackson and Kerrin Elizabeth Jewell. On 20 November 1998 Jewell pleaded guilty to a single count of manslaughter, and after a plea in mitigation heard on 24 November, she was sentenced to be imprisoned for five years with a non-parole period of two years and nine months. A new presentment was then filed on 20 November 1998 in relation to the applicant and Jackson on the single count of murder, and both entered pleas of not guilty.
After Jewell's plea of guilty on 20 November, counsel for the applicant made an application on the same day for the exclusion of two covert tapes on which conversations between the applicant on the one hand and Warren and Ingrid Eyles on the other, and between the applicant and Jewell on the one hand and Warren and Ingrid Eyles on the other were recorded. Counsel for the applicant and for the Crown both made submissions in relation to this application and the Crown called Detective Senior Constable Carroll of the Homicide Squad to give evidence. The judge ruled on 20 November 1998 that the application for the exclusion of the Eyles tapes should be dismissed.
After that ruling, in the course of further pre-trial argument on 23 November, Jackson applied for a separate trial on the basis that he would suffer severe and irremediable prejudice in a joint trial because of the Eyles tapes (which were inadmissible against him) and other prejudicial evidence (such as alleged admissions by the applicant or others) that was also inadmissible against him. The judge exercised his discretion on that date to order separate trials for Jackson and the applicant, and the Crown elected to proceed first with the trial of the applicant.
The trial of the applicant commenced before a jury on 24 November and the Crown case against the applicant was that she either acted in concert with, or aided and abetted, Jackson, in the murder of Parkes. In the alternative the Crown's case was that the applicant acted in concert with, or aided and abetted Jackson, in the manslaughter of Parkes by an unlawful and dangerous act.
The applicant was, as I have said, convicted of murder on 3 December. On 4 December the trial of Jackson commenced and during the course of pre-trial argument, the Crown accepted a plea of guilty to one count of manslaughter from Jackson. His plea was heard on 16 December and he was then sentenced to be imprisoned for seven years, with a non-parole period of four-and-a-half years.
At Jackson's plea on 16 December, he admitted that he caused Parkes's death by an unlawful and dangerous act. During sentencing reasons, the judge said that Jackson killed Parkes in circumstances in which he delivered an extremely heavy blow to Parkes's face, left her in that state and later returned and found that she was dead.
The Crown case against the applicant was as follows. Kerrie Lee Compen was a friend of the deceased and also knew the applicant and Jewell. On Friday 14 February 1997 Compen met the deceased at about midday, during her lunch break. They drove together to Noble Park where they used heroin. The deceased had been released from custody some few days earlier and overdosed. Compen took her to a hospital on the corner of Heatherton Road and the Princes Highway, dropped her off and returned to work. At approximately 4 p.m. that day Compen received a telephone call from the applicant, who said she had just "been released". They arranged to meet and after work the deceased met Compen and they went together to the applicant's home where they spent the evening together smoking marijuana. They agreed to meet the following day at around 11 a.m. Compen overslept the next morning and when she reached the agreed meeting point the others were not there. On Monday 17 February Compen received a telephone call from the mother of the deceased, Sonja Lawry, asking about her daughter who was missing. Neither of them knew where the deceased was. A week or two later the applicant called Compen at work and they discussed the subject of the missing woman, the fact that her mother was still looking for her and that no one had seen her. The applicant said to Compen "something along the lines of 'we knocked her'". Compen said she used the words "knock" but could not recall whether she said "I" or "we". She took this to mean that the applicant had murdered the deceased. On a later occasion the applicant told Compen "that she thought she would practically get pinned with the murder, that ... Homicide were looking for her, that they wanted her ... that she was going to get done for it, ... she was upset as she said this, she was crying." The applicant continued saying that she felt the best thing to do was to leave Kerrin Jewell as much as possible out of it "as she had little to do with what actually happened", and as Jewell, with a daughter, had more to lose.
Sonja Lawry, the deceased's mother, said that at 15 the deceased became involved with Adam Carter, the applicant's brother. The applicant and the deceased where then "really good friends", like sisters. The deceased became engaged to Adam Carter in 1995 and moved in with him, but after he was imprisoned in September 1996 broke off the engagement. In October 1996 the deceased was sent to the Chisholm Youth Training Centre and Lawry moved her things back to the family home. Late in October 1996 Lawry collected mail for the deceased and opened an angry letter to her from the applicant. The deceased returned home around 23 December 1996 but returned to Chisholm until 12 February 1997. On Saturday 15 February 1997 the deceased told her mother she was going to meet the applicant and Kerrie Compen at Ringwood Railway Station at 11 a.m. Lawry last saw the deceased at 9.30 a.m. and reported her as a missing person the next Tuesday morning. Later that month Lawry went to the applicant's Donvale home in the hope of obtaining a recent photograph of the deceased. She asked the applicant if she had heard from the deceased. The applicant said she did not want to get "back into that crowd" and said that on the 15th she had not gone to the Ringwood Station to meet the deceased. Lawry did not learn of her daughter's overdose on the previous Friday until after she was missing. At about this time Lawry said the deceased also received a letter from Kerrin Jewell, in which Jewell complained of slights and said she was going to "deal with" the deceased as she had a reputation to live up to. During the committal proceedings in the Magistrates' Court, the applicant stated in Lawry's presence, "I didn't do it, I was just there." When accused of strangling the deceased she said "No I didn't, Jason did it".
Antonio Lombardo gave evidence that he was an acquaintance of the applicant, the deceased and Kerrin Jewell. He was in fact the father of Jewell's child and living with Jewell. In the month of March 1997 he returned to Victoria from South Australia and spoke to the applicant and Jewell. He learned that the deceased had disappeared, and spoke to the applicant about it. The applicant told him that "her and Jacko ... had belted Becky and ... she had said she did what she did for her brother ...". The applicant told him "her and Jacko took her in the bathroom and belted her and ... she did what she did because of ... the hate she had for Becky too, I suppose ...". Further, "they said they hit her up" and "she told me ... she only did what she did for the sake of her brother ... because she was dirty on Becky ...". She also said that Becky was dead, though not where she died. Lombardo said he thought that "Jacko" was Jason Jackson. In cross-examination Lombardo said that Jewell had told him that Jacko had taken Becky into the bathroom and given her a "hot shot" of battery acid which did not work. He had told police that both the applicant and Jewell were "shit-scared of Jacko". He was in custody when he made his statement to the police.
Warren Rex Eyles is married to Ingrid Eyles, both of whom gave evidence for the prosecution. Ingrid Eyles is the sister of the deceased's mother. In March 1997 Warren and Ingrid Eyles learned that the deceased was missing. They made some investigations in an attempt to find her and in their "circles" kept hearing the name of the applicant. The Eyleses, upon seeing a photograph of the applicant, realized they had known her from Odyssey House, where Warren Eyles and the applicant had undergone drug rehabilitation together. Warren Eyles then telephoned the applicant's home and arranged to meet her. Before this happened Ingrid Eyles spoke to a Detective Ernest Smith of the Drug Squad and offered to meet the applicant wearing a "wire". Smith supplied an appropriate device and Ingrid Eyles was wearing this when she and her husband went to speak to the applicant. In the conversation that followed the applicant described to the Eyleses her killing of the deceased, her motivation and her disposal of the body. The Eyleses offered to help her to destroy remaining evidence by exploding the body. They arranged to meet the applicant again that night to execute their plan. During the conversation with the applicant, the applicant was recorded as saying that the deceased was "pilled off her head" when she first saw her walking through a laneway in Fitzroy. She said that she grabbed her and put her in the car and that then she –
"... Took her to this house, fucking gave her a hot shot, battery acid. And then, and then like put her in the boot. Took her out to this fucking joint, burn her, and just left."
The applicant said she burned the body and then the conversation continued –
"WARREN:Was she dead when you, when you gave her the, when you burnt her?
CARTER:Yeah. Yeah, when I burned her she was dead, yeah.
WARREN:Yeah.
CARTER:Yeah. Well because I had to strangle her as well.
WARREN:Yeah.
CARTER:Because she wasn't like going.
INGRID:Yeah.
WARREN: Yeah. What, you, you gave her a hot shot and then strangled her?
CARTER:Yeah.
WARREN:Then took her up to Coldstream?
CARTER:And,
WARREN:And buried her?
CARTER:No.
WARREN:What, you just left the body?
CARTER:Like I burned her and just left it there.
INGRID:Oh fuck!
WARREN:But burns, bones don't fucking burn you idiot.
CARTER:Yeah I know. And then I thought.
WARREN: Oh fuck!
CARTER:I know. And then I thought fucking I'll go scatter them."
The following day the applicant telephoned the Eyleses and arranged to meet them at 6.00 that evening. They met at Nunawading train station, and the applicant was accompanied by Jewell, whom she introduced as her "co-offender". They then drove to the location near Coldstream where the body of the deceased had been taken. In the car the applicant, with Jewell, again explained how the killing and disposal had taken place, offering a different account in certain respects. They then returned to Melbourne, and after dropping off the two women, the Eyleses met up with Detective Smith and other officers and directed them to the location of the body.
In cross-examination Eyles said that he had been bailed to Odyssey House after being charged with dealing in amphetamines. He and his wife were registered police informers prior to the death of the deceased. Eyles had an extensive criminal career and at Odyssey House had probably spoken to the applicant about it. Both Warren and Ingrid Eyles agreed in cross-examination that they were playing a part with the applicant, and told lies to her. Eyles agreed that he told the applicant that he would help her, but no one else. When he first started investigating his niece's presumed death, the Eyleses had intended to find the guilty parties and kill them. Warren Eyles said he was talked out of this by his wife, and thereafter co-operated with the police.
Evidence was given by Donald David Bigham, the captain of the Gruyere Fire Brigade, of being called out to a fire on 15 February 1997 in the Gruyere area, the seat of the fire being in the area where the deceased's body was later found.
Chris Tzaikou, a forensic officer, gave evidence of examining Unit 7, 3 Natalie Court (which was Jewell's flat) for the presence of blood, and that he made positive findings in three locations, in the bathroom of the unit, on the vanity cabinet door and on the floor near the corner of the bathtub and on the east wall of the bathroom next to the door. He later conducted DNA tests which identified the deceased as the source of part of the biological material found in the bathroom and excluded the applicant and her co-accused as potential sources of that material.
Professor Stephen Cordner, a Professor of Forensic Medicine, and Christopher Alexander Briggs, Associate Professor and Consultant Physical Anthropologist, gave evidence of their independent post mortem examinations of the deceased. On 11 May 1997 each went to a site at Ingram Road, Coldstream where they identified as human remains skeletal and soft tissue material situated half in the creek and half upon the creek bank. Later examination showed that parts of the skeleton were missing, including some teeth, nasal bones, the right collarbone, both hands and several limb bones.
Detective Senior Constable Sean Carroll, the informant, said that on 9 April 1997 he spoke to the applicant about her knowledge of the disappearance of the deceased. She told him that on 15 February she had an arrangement to meet with the deceased at Ringwood Station, but had not met up with her and instead had gone to St. Kilda to buy drugs.
Kerrin Elizabeth Jewell gave evidence in the defence case. She said that in February 1997 she met Jason Jackson and on 15 February he was staying with her. On 14 February the applicant was released from Deer Park and Jewell went to pick her up from Ringwood Railway Station. They returned to Jewell's home where they used heroin. Afterwards Jewell, her daughter, the applicant and Jackson went to Fitzroy Street, St. Kilda, to obtain more heroin which they used in St. Kilda. They then went to Fitzroy Street to obtain some more which they also used immediately. They then saw the deceased standing near some shops. Jewell pulled over and called out to the deceased "Get in the car". The deceased looked "Smashed. Very pilled". She got in the back of the car and they drove to Jewell's flat. There was little conversation. The deceased "was just smashed" as was the applicant and Jewell was also "pretty out of it".
Jewell said that the deceased wanted to use the telephone, but Jewell would not let her. Jackson then came up to the deceased, and grabbing her by the hair, took her into the bathroom. He then yelled to the applicant "Fucking get here, Emma". The applicant was stoned, but got up and stumbled to the bathroom. She knocked on the door. Jewell went back to the lounge-room, and when the applicant rejoined her, she was "really stoned and white". Then Jason yelled for her again, and the applicant returned to the bathroom. Jewell then thought the others were going to use heroin again and went and banged on the door and demanded that she be let in. The applicant on the inside was also knocking on the door saying she wanted to go out. Then Jackson opened the door and Jewell saw the applicant by the basin, looking white, and the deceased on the floor, apparently dead. She did not see any blood.
Jewell then said that they found a sleeping bag and put the body of the deceased in that and put her in the boot of the car. They then drove to Coldstream and deposited the body by the creek. Jackson poured petrol on it and set it alight. He also "caught on fire" and the fire spread to the bushland, so they "got out of there".
Jewell said that it was not their intention in picking up the deceased that she would be killed.
The applicant gave evidence in her own defence. She agreed that she had met the deceased in Deer Park Women's Prison, and had refused to speak to her. She confirmed that on 14 February 1997 she rang Compen to suggest "catching up" with her. She said that after she met Compen the following day, she at first did not speak to the deceased but during the course of the evening they began talking again. The next morning, when the applicant arrived at Ringwood Station, Jewell picked her up accompanied by her child. After confirming Jewell's evidence of what followed between them, she said that as they were leaving Fitzroy they saw the deceased. Jewell spoke to her and she walked over and willingly got in the car. They then drove back to Jewell's home, with the deceased sitting in the back seat with her eyes shut. The applicant said she was stoned and could only vaguely recall getting back to Jewell's home. She said that at one point she was called across by Jackson to the bathroom and she walked across, opened the bathroom door and asked what he wanted. The deceased was then still alive. She went back to the lounge-room and Jackson called her back. She knocked and opened the door, and saw the deceased lying on the floor. It looked as though she had overdosed or passed out. Jackson was standing over her. She tried to get out, but he shut the door on her. She just stood there. She could not really see any blood. She said that Jackson then asked Jewell to get something to put the body in. They took Jewell's child to Jason Jackson's mother and then Jewell put the body in the sleeping bag, and they put the body in the boot of Jewell's car. They drove to Coldstream and disposed of the body as described by Jewell.
Ground 1 of the application relates to a claim that the judge erred in his ruling that the evidence of covert tape-recordings between the applicant and Warren and Ingrid Eyles made on 9 and 10 May 1997 should be admitted. The facts relating to the obtaining of these covert tapes were not in dispute. Warren and Ingrid Eyles were the aunt and uncle of the deceased, however they had not seen her since she was nine years old due to her falling out with her immediate family. They had known the applicant from Odyssey House, since Warren Eyles had been undergoing drug rehabilitation there at the same time as the applicant. The applicant was not aware of the family relationship between the deceased and the Eyleses. The Eyleses had been assisting the police generally from approximately the middle of 1996 as registered informants, in regular contact with Detective Sergeant Smith of the Drug Squad. On 15 February 1997 the deceased was reported missing and officers from the Homicide Squad were briefed by the Criminal Investigation Branch at Ringwood in relation to her disappearance. By 9 April 1997 the police were treating the investigation as a missing person inquiry with some suspicious circumstances suggesting that the girl may have died. The police regarded the applicant as a possible witness into the disappearance of Parkes as she was one of the last people to see her alive. The police wanted to obtain a statement from the applicant as to her knowledge of Parkes's last movements. By 9 April, the applicant was also one of a number of people nominated in information received by the police as possibly being involved in the deceased's murder. On 9 April police officers from the Homicide Squad, including Detective Senior Constable Carroll, spoke to the applicant in an interview room at the Ringwood Police Station between 5 and 7.15 p.m. in relation to the disappearance of the deceased. The applicant at this time gave an account as to the girl's last movements prior to her disappearance. At the conclusion of the conversation, the police officers questioning the applicant asked her to make a statement, but the applicant told them at this time that she had received legal advice and had been advised by her solicitor that she was not to speak to the police or make a statement. Detective Senior Constable Carroll formed the view at this time that if the applicant was asked to engage in a formal record of interview, she would give a "No comment" record of interview. The police officers did not then caution the applicant in relation to her right to remain silent prior to their conversation with her on 9 April, on the basis that at that time she was only considered to be a potential witness in relation to Parkes's disappearance.
Ingrid Eyles first contacted Detective Sergeant Smith in relation to the deceased on 17 April. She told him that Parkes was a relative and that they knew a person who may have been involved. After Mrs. Eyles contacted Detective Sergeant Smith on 17 April, he contacted the Homicide Squad on the same day saying that he had received information from informers who believed that the applicant was involved in the disappearance of the deceased. He asked the Homicide Squad whether they wanted anything done about this information. Carroll was aware at the time that the Eyleses were registered police informants and that it was necessary to deal with them through Smith. At that time the Homicide Squad regarded the applicant as one of the three main police targets, together with Jewell and Jackson.
Warren Eyles was at first reluctant to become involved in the investigation of the death of the deceased, but Detective Sergeant Smith encouraged him to assist the police. Smith told Warren Eyles to find out what he could in relation to the deceased and instructed him that if he (Eyles) made contact with the applicant, he should let him know before Eyles met with her and after he left. Detective Sergeant Smith told the Homicide Squad that the Eyleses had offered to wear a recording device and the Homicide Squad agreed to this proposal. Warren Eyles was in regular contact with Smith over a period of weeks thereafter, advising him that he had attempted to contact the applicant but had been unsuccessful.
At the request of Ingrid Eyles, Detective Sergeant Smith provided her with a Nagra tape-recorder on 5 May 1997 which he obtained from the Drug Squad for the purpose of recording a conversation with the applicant. Smith was aware that Warren Eyles's relationship with the applicant was crucial and that there was a real chance that the applicant would speak to Warren Eyles because of that relationship. The Eyleses then subsequently tape-recorded conversations with the applicant on 9 and 10 May, Ingrid Eyles wearing a concealed tape-recorder. The applicant was, of course, not aware that she was being taped or that the Eyleses were related to the deceased.
In the course of these conversations Warren Eyles set out to gain the confidence of the applicant by pretending he could be of assistance to her, in the hope that the applicant would make admissions to him and help him find the deceased's body. On the first occasion, 9 May, Warren Eyles contacted Detective Sergeant Smith to let him know that he was meeting the applicant. In the course of his conversation with the applicant, Warren Eyles telephoned Smith and informed him, by way of a pre-arranged signal (a request for gelignite) that the applicant had agreed to take him to Parkes's body. Later that day, Warren Eyles met with Smith and gave him the tape of his conversation with the applicant, which was immediately given to the Homicide Squad. After obtaining the first Eyles tape on 9 May, the police had evidence, in the form of the applicant's admissions, that Parkes was deceased and that the applicant was involved in her murder.
Later on 9 May, Detective Sergeant Smith obtained a clean Nagra tape from the Homicide Squad and some imitation explosives from the Special Operations Group. He provided both these items to Warren Eyles the same day. On 10 May Warren Eyles contacted Smith telling him that he was meeting the applicant and Jewell at Nunawading Railway Station later that day. Eyles told Smith that Jewell would show him (Eyles) where Parkes's body was located. Detective Sergeant Smith told the Homicide Squad of this conversation and Carroll engaged a police surveillance team to follow the Eyleses and the applicant from after their meeting at Nunawading station.
During committal proceedings, Detective Sergeant Smith said that at this time he considered the objectives of Warren Eyles meeting with the applicant were to obtain admissions on tape and to see whether he could encourage her to take him to Parkes's body, and this was being done with the approval of the Homicide Squad.
After the Eyleses had been shown the location of the deceased's body on 10 May 1997, police officers from the Homicide Squad (including Carroll) and Smith, found Parkes's body at Ingram Road, Coldstream, and later that day Smith obtained the second Nagra tape from the Eyleses and gave it to the Homicide Squad.
The applicant was arrested on 11 May. Officers from the Homicide Squad cautioned the applicant and conducted a formal interview with her at the premises of the Homicide Squad in relation to the death of the deceased. The applicant exercised her right to speak to a lawyer prior to commencing the interview. Approximately 30 minutes into the interview, the applicant exercised her right not to answer any further questions and the interview concluded. The applicant was then charged with the murder of the deceased.
As an informer, Warren Eyles was reimbursed by the police for his expenses. Furthermore, at the request of Warren Eyles's counsel, Detective Senior Constable Carroll gave evidence as to the assistance Eyles had provided in the inquiry into Parkes's death at a plea hearing when Warren Eyles was facing drug trafficking charges. Eyles received a substantial discount in sentence because of his co-operation with the police.
In support of the application that the two Eyles tapes be excluded, counsel for the applicant relied on the decision of the High Court in The Queen v. Swaffield and Pavic v. The Queen.[1] The judge said of the taping of the first tape that –
[1](1997) 192 C.L.R. 159.
"The police were conducting their investigations in a proper way and ... the use of the informers by Mr. Smith was not the use of an agent to avoid police responsibility at that stage, to treat Miss Carter in the way that she ought to have been treated had the police themselves continued this investigation, by questioning her."
His Honour therefore determined not to exclude the first conversation. As to the second conversation, his Honour was concerned as to whether a distinction should be drawn between the two conversations, having regard to the obviously changed perceptions of the police. His Honour accepted that the police may have been in a position at that stage to arrest the applicant but in his Honour's view the second discussion became part of the attempt by the Eyleses to get the applicant to show them the body, consistently with what she said had happened to it. His Honour then said of the second conversation –
"It does not amount to the eliciting by interrogation of information in the sense used by the High Court. Rather it is a continuing discussion and an attempt to follow up upon what the accused ... had said and to have the body shown to them. It is true that that was done by a subterfuge in that the Eyleses were pretending to want to assist her to destroy the evidence."
Accordingly his Honour decided that the conversations did not go beyond what is part of an appropriate investigation at that time by the police and the informers.
In this Court Mr. Grace submitted that in failing to exclude the Eyles tapes, the judge erred in the exercise of his discretion by
(1)finding that Warren and Ingrid Eyles were not acting as agents of the police in secretly recording their taped conversations with the applicant;
(2)finding that the admissions on the Eyles tapes were not elicited by Warren and Ingrid Eyles; and
(3)failing properly to apply the principles stated in Swaffield and Pavic.
It was submitted that the applicant always had a right to remain silent, or to choose whether or not to speak, and that she had a fundamental entitlement to remain silent when questioned or asked to supply information to members of the police force, that right being founded upon a concern to maintain a fair balance between the State and the individual. It was submitted that her freedom to choose to speak to the police was impugned to a significant extent by the covert taping of her conversations with the Eyleses. By 9 May 1997 the applicant had already exercised her right to choose not to speak to the police, in conversation with the Homicide Squad on 9 April. It was submitted that the police then sought to circumvent the applicant's exercise of her right of choice, and created, instigated and engaged in a course of conduct by which they were able to conduct interviews with the applicant that were designed to obtain a confession uninhibited by the requirements of common law and statute.
Mr. Grace's next submission was that even if the judge did not err in failing to exclude the first tape made on 9 May, his Honour erred in failing to exclude the second tape made the next day. Prior to the making of the second tape, the police had, so the argument ran, evidence from the first tape that the applicant was involved in the murder of the deceased and thus had sufficient evidence to charge her. Had the police taken her into custody at that time, they would have been required to caution her in relation to her right to silence. Instead, the police again sought to circumvent the applicant's right to choose whether to speak to the police. It was submitted that whether the right of the accused to choose whether to speak to the police has been impugned will depend upon whether the person with whom the accused spoke is to be regarded as an agent of the police, and if so whether the admissions of the accused were "elicited" by that person.
Mr. Grace submitted that the Eyleses should properly be regarded as agents of the police in obtaining admissions from the applicant, pointing to the fact that they were registered police informers, that the police had exercised some influence on Warren Eyles who was initially reluctant to assist in the investigation, to assist them, and the extent of the police involvement in giving instructions to the Eyleses and providing them with material such as the equipment necessary to make recordings of what the applicant had said. The Eyleses, of course, stood to gain personally from co-operating with the police. Mr. Coghlan who appeared with Mr. Ryan in this Court for the Crown, accepted, as I followed his argument, that the Eyleses were acting as agents for the police, merely making the point that in so far as it was submitted that the judge was in error in concluding that the Eyleses had not acted as agents for the police, the judge had drawn no such conclusion, there being no positive finding to this effect in his Honour's reasons.
Mr. Grace then made a close examination of the contents of the statements made on the two Eyles tapes, with a view to establishing that the admissions made by the applicant on those tapes had been "elicited" by the Eyleses. He submitted that the admissions may be regarded as having been elicited by an agent of the police in violation of the right to choose whether or not to speak to the police, if the method adopted by the agent induced rather than facilitated the admissions of the accused. He submitted that the conversations between the Eyleses and the applicant were in the nature of an interrogation by the Eyleses, and that the Court was obliged to examine whether the admissions had been obtained as a result of subterfuge or a significant misleading of an accused in determining whether the admissions had been elicited by the police agent. Mr. Grace argued that the Eyleses had misled the applicant as to the whole purpose of their conversations with her, as they led her to believe that they were seeking information to assist her to escape detection by the police in relation to her involvement in the death of the deceased. It was clear, Mr. Grace submitted, that the Eyleses sought to exploit their relationship with the applicant to mislead her in this way. He relied on the fact that Warren Eyles had a long history of criminal involvement, and the applicant looked up to him and had the impression that he was experienced in criminal matters.
It was also submitted that in the exercise of its discretion it was necessary for the Court to form a judgment upon the propriety of the means by which the statement was obtained by reviewing all the circumstances together and considering the fairness of the use made by the police of the Eyleses' position in relation to the accused, and deciding whether it would be unjust to allow the accused's own words to be given in evidence against her. Mr. Grace submitted that even if it were found that the admissions were reliable, that would by no means be decisive in considering this exercise of discretion. As to reliability, he pointed to the fact that the applicant had submitted on the voir dire that the admissions on the covert tapes were unreliable, a fact confirmed during the evidence given by the applicant and Jewell at trial. Mr. Grace conceded that at the time the judge ruled on the admissibility of the tapes, the extent of the unreliability was unknown, but pointed to the fact that during the trial the Crown had conceded that some of the admissions made on the first tape were unreliable.
Accordingly it was submitted that the tapes should have been excluded because the applicant's freedom of choice to speak to the police had been significantly impugned by the traps set for her by the use of police agents with the assistance and encouragement of the police. It was submitted that the tapes exhibited a clear elicitation and interrogation and that the judge was in error in failing to find that the Eyleses were police agents and that the admissions in the tape were made in the course of interrogation.
In R. v. Broyles[2] the accused, who was charged with murder, was arrested and cautioned that he need not say anything, but was later visited in prison by a friend wearing a recording device. The visit had been requested and facilitated by investigating police. The accused was questioned about the killing and answered his friend's questions. The evidence was later excluded in the application of the Canadian Charter of Rights and Freedoms. Iacobucci, J. in giving the judgment of the court discussed the meaning of elicitation and the factors to which one should look to test the relationship between the State agent and the accused so as to answer the question: considering all the circumstances of the exchange between the accused and the State agent, is there a causal link between the conduct of the State agent and the making of the statement by the accused? The relevant factors were then discussed in the following terms[3] –
"The first set of factors concerns the nature of the exchange between the accused and the State agent. Did the State agent actively seek out information such that the exchange could be characterized as akin to an interrogation, or did he or she conduct his or her part of the conversation as someone in the role the accused believed the informant to be playing would ordinarily have done? The focus should not be on the form of the conversation, but rather on whether the relevant parts of the conversation were the functional equivalent of an interrogation.
The second set of factors concerns the nature of the relationship between the State agent and the accused. Did the State agent exploit any special characteristics of the relationship to extract the statement? Was there a relationship of trust between the State agent and the accused? Was the accused obligated or vulnerable to the State agent? Did the State agent manipulate the accused to bring about a mental state in which the accused was more likely to talk?"
[2](1991) 68 C.C.R. (3d) 308.
[3]At 321.
In Swaffield and Pavic, the High Court considered the question whether confessional statements voluntarily made to a witness who, unbeknown to the confessionalist, was a police officer or was acting on behalf of the police, should be admitted into evidence on the trial of the confessionalist. In the first of these cases, Swaffield had been charged with two offences of breaking and entering and with wilfully and unlawfully setting fire to the premises of the Leichardt Rowing Club. He declined to be formally interviewed by the police. At the committal hearing no evidence was led against him and he was discharged. On 11 August 1994 an undercover police officer involved in a drug detection operation had a conversation with Swaffield during which the officer pretended that his brother-in-law was in trouble for burning a car. Swaffield made admissions to the officer of his involvement in the fire at the rowing club. Fresh charges were laid against him in the District Court of Queensland, and the judge declined in the exercise of his discretion to exclude the conversations from evidence on the grounds of unfairness. Swaffield was convicted and appealed to the Court of Appeal of Queensland. That Court by a majority quashed the conviction and entered a verdict of acquittal. In the second of the cases, Pavic was questioned by police officers on 18 December 1994 about the disappearance of Andrew Astbury. The officers told Pavic that he did not have to speak to them but that if he had been in a fight with Astbury he should obtain legal advice and, depending upon that advice, attend the police station for a recorded interview. On 26 December the body of Astbury was found. On 3 January 1995 the police took Pavic into custody and conducted an interview with him during which he maintained his right not to answer any questions. The police told Pavic that they believed that he had murdered Astbury but released him without charge. On 9 January 1995 the police interviewed one Clancy, a close friend of Pavic. They told him that they believed that they had enough evidence to charge Pavic with murder but suggested that Clancy speak to Pavic on behalf of the police and carry a recording device for that purpose. Clancy agreed and spoke to Pavic, who made admissions of his involvement in killing Astbury. Pavic was committed for trial in the Supreme Court of Victoria on a charge of murder. The trial judge declined to exclude the conversation between Pavic and Clancy from evidence on grounds of unfairness. Pavic was convicted of murder and his appeal to the Court of Appeal was dismissed.
In the High Court, Toohey, Gaudron and Gummow, JJ. in a joint judgment, and Kirby, J. separately, held that the admissibility of confessional material turns first on the question of voluntariness, next on exclusion based on considerations of reliability, and finally on an overall discretion taking account of all the circumstances (including the means by which any admission was elicited and whether unfair forensic disadvantage may be occasioned by admission of the evidence) to determine whether the evidence was admitted or a conviction obtained at an unacceptable price having regard to contemporary community standards. Brennan, C.J. said that the conduct of law enforcement officers should be considered under the public policy discretion except where that conduct makes the reliability of a confession dubious, in which case the unfairness discretion can be invoked. The whole Court held that the admissions in Swaffield were rightly excluded on appeal and (Kirby, J. dissenting) that the Court should not interfere with the judge's discretion to allow the admissions in Pavic into evidence.
Dealing with the question whether Pavic's admissions should have been admitted, Brennan, C.J. said[4] –
"In Pavic's Case, the confessional statements were made to Clancy whom Pavic knew as a friend. Clancy was not a police officer or other person in authority over Pavic. There was no impropriety in the police obtaining Clancy's consent to the recording by Clancy of his intended conversation with Pavic. A serious crime had been committed and the means adopted for its solution and for the securing of evidence against the prime suspect were quite legitimate. The investigation of crime is not a game governed by a sportsman's code of fair play. Fairness to those suspected of crime is not the giving of a sporting opportunity to escape the consequences of any legitimate and proper investigation or the giving of a sufficient opportunity 'to invent plausible falsehoods'.
The fact that Clancy was regarded as trustworthy by Pavic is an indicator of the reliability of the admissions made to Clancy. There was no public interest to be served by rejecting those admissions."
[4]192 C.L.R. 159 at 185-186.
Toohey, Gaudron and Gummow, JJ. said[5] –
"In the light of recent decisions of this Court, it is no great step to recognize, as the Canadian Supreme Court has done, an approach which looks to the accused's freedom to choose to speak to the police and the extent to which that freedom has been impugned. Where the freedom has been impugned the Court has a discretion to reject the evidence. In deciding whether to exercise that discretion, which is a discretion to exclude not to admit, the Court will look at all the circumstances. Those circumstances may point to unfairness to the accused if the confession is admitted. There may be no unfairness involved but the Court may consider that, having regard to the means by which the confession was elicited, the evidence has been obtained at a price which is unacceptable having regard to prevailing community standards. This invests a broad discretion in the court but it does not prevent the development of rules to meet particular situations."
[5]192 C.L.R. 159 at 202.
Their Honours concluded that the admissions made by Swaffield to an undercover police officer were made in clear breach of Swaffield's right to choose whether or not to speak. In the case of Swaffield there could be no doubt that a police officer had made up his mind to charge Swaffield with a crime, because he had in fact been charged a year before the conversation took place with the undercover police officer. No caution was, of course, administered by the undercover officer before the conversation in which the admissions were made. The absence of the caution triggered the exercise of the discretion to exclude the evidence. It was plainly of great significance that the undercover police officer, relevantly a person of authority, had represented himself to Swaffield not to be a police officer in order to secure answers to questions which Swaffield had earlier told the police he would not answer. In Pavic's Case, their Honours pointed to the fact that Pavic was not in custody at the time he spoke with Clancy. No caution was administered by Clancy. Their Honours continued[6] –
[6]192 C.L.R. 159 at 203-204.
"The circumstances are close to those in Broyles, the Canadian decision. As in Broyles the person with whom Pavic spoke must be regarded as an agent of the State. The meeting was not directly set up by the police but Clancy spoke with Pavic at the request of the police who equipped him with a recording device.
If Broyles is applied, the next question is whether the admissions by Pavic were elicited by Clancy or were made in the course of a conversation. Put another way, was there an interrogation by Clancy?
Pavic argued that he was misled by Clancy into making the admissions he did. The trial judge approached the exercise of his discretion on that footing and said:
'Whilst the role of the accused in the killing was volunteered by him to Clancy in a somewhat limited fashion, it cannot, in my view, be said to be the result of, or inextricably linked to, the expressed fear of Clancy that he may be charged with an offence.'
In all the circumstances there is no sufficient reason to interfere with the trial judge's refusal to exclude the evidence of the conversation."
Kirby, J., dissenting in relation to Pavic, considered[7] that the admissions had been obtained unfairly in derogation of a fundamental right belonging to the accused. His Honour said that Pavic had exercised his right, as his interrogators well knew and that to circumvent the free choice to speak or be silent which the suspect had exercised in favour of silence by use of a police agent was productive of the risk of an unfair trial to the accused and contrary to the public policy which protects the fundamental rights of suspects.
[7]192 C.L.R. 159 at 225.
In R. v. Heaney and Welsh,[8] Coldrey, J.[9] held inadmissible certain statements made by two accused who again had been charged with murder. A witness, Engels, had made a statement to the police implicating Heaney in the killing of the deceased. Engels had also told the police that he had buried the deceased's body and took the police to the site where the body was recovered. Engels agreed to assist the police and tape-recorded a conversation he had with Heaney. The conversation did not contain any direct admission or confession of actual involvement by Heaney in the killing, but it did contain material evincing Heaney's knowledge of and association with the death of the deceased. Coldrey, J. considered the means by which the admissions made by Heaney had been obtained, which included the giving of a false account by Engels as to his contact with the police; the situation giving rise to the discovery of the deceased's body; and as to Engels' willingness to accept responsibility for the death of the deceased, or at least to explain to police how such death occurred. His Honour concluded that the method Engels adopted in the conversation induced rather than facilitated admissions from the accused Heaney and continued[10] –
"Whilst it is true, as Brennan, C.J. stated in Pavic's Case, the investigation of crime is not a game governed by a sportsman's code of fair conduct, the Court may, and should, reject admissions which it views as having been elicited as a result of a significant misleading of an accused.
As Mr. Bezzina[11] frankly acknowledged, Engels went beyond the bounds of what he would have liked. That is a risk law enforcement officers run when utilizing this method of obtaining admissions.
Each case must of course turn on its individual facts. In the trial of Pavic I formed the view, listening to the conversations as a whole, that the admissions made did not have their genesis in any misleading statements by Clancy. In the present case I have come to the opposite conclusion."
[8][1998] 4 V.R. 636.
[9]The trial judge also in Pavic, and who in that case had refused to exclude the confessional statements made by Pavic.
[10][1998] 4 V.R. 636 at 647.
[11]A police senior sergeant who was one of the investigating police.
In Heaney and Welsh, Engels was an accessory after the fact, attempting to negotiate with the police an indemnity from prosecution, in circumstances where the body of the deceased had been found, the police were investigating a murder, and Engels engaged in a calculated attempt, founded on falsehood, to obtain admissions from Heaney.
In the present case, in so far as the first conversation of 9 May was concerned, the circumstances were very different. At this time there was merely a police inquiry into the whereabouts of a missing person. The police had attempted unsuccessfully to obtain information from the applicant, but had no further ability to interview her. At this time the police did not know (although they doubtless suspected) that Rebecca Parkes was dead. The applicant had made some limited statements to the police but refused to go further. In these circumstances the Eyleses made an offer to the police to find out what had happened, as relatives of the missing woman. While the death of the missing woman was an open possibility, there was not then on foot a police investigation for a crime, and the applicant was not, in the true sense, a suspect of a crime. What took place in the first conversation was that the applicant, believing she was in the company of friends, volunteered a series of admissions in which she first confessed to having the deceased killed at her behest. It was put to us by Mr. Ryan, I think correctly, that thereafter the applicant in effect purged herself by telling the full story of what had occurred, without anything being said by the Eyleses which could properly be described as amounting to an interrogation of the applicant.
This was, I think, the view taken by his Honour of the nature of that first conversation, when application was made for its exclusion. Thereafter, his Honour noted that the applicant was not in custody, and no occasion for a caution by the police to the applicant had yet arisen. His Honour accordingly formed the view that the police, in their use of informers, were conducting their investigation in a proper way and no occasion existed for the exercise of the discretion to reject the evidence.
Mr. Grace's argument that the first Eyles tape amounted to an interrogation of the applicant by the Eyleses was supported by a detailed examination of the contents of the transcript. I accept that the conversation would not have occurred without the Eyleses having engaged in subterfuge, or significantly misleading the applicant into believing that they were going to assist her to escape detection by the police in relation to her involvement in the death of the deceased. I have no doubt that they sought to exploit their relationship with the applicant and to some extent manipulated her in the process of making admissions. But in my view this was no more than was done by Clancy in obtaining admissions from Pavic, in a case where an investigation of a murder was plainly in progress and Pavic was suspected of the crime. There can be no question that the applicant's admissions were made voluntarily. Mr. Grace argued that some of the admissions were not reliable, in that the applicant was "big-noting" herself in some of her assertions. But I see no reason to doubt the truth of the substance of her admissions, and they were confirmed by the later discovery of the deceased's body, at the place to which the Eyleses were taken by the applicant.
The second conversation of 10 May may be said to stand in a different position because, as Mr. Grace submitted, the police now had evidence to support the suspicion that the deceased had indeed been killed and the applicant was now a suspect. The applicant, having admitted the death of the deceased, was now seeking the help of the Eyleses to destroy the remaining evidence, which was expected to be achieved by an explosion using gelignite. The judge in considering the second conversation dealt with the submission for its exclusion on the following basis –
"On one view, the police may have been in a position at this stage to arrest Carter and subject her to questioning observing all the rules relating to that under s.464(4) (of the Crimes Act). But what in fact occurred is that the informers had said that they would like to see the body of the deceased and that emerged from the first conversation. Having done that, the second discussion became part of the attempt by the Eyleses to get Carter to show them the body consistently with what she said had happened to it.
Again, I think, looking at that conversation, it does not amount to the eliciting by interrogation of information in the sense used by the High Court. Rather, it is a continuing discussion and an attempt to follow up upon what the accused, Carter, had said and to have the body shown to them. It is true that that was done by a subterfuge in that the Eyleses were pretending to want to assist her to destroy the evidence. Nevertheless, being of the character that I have described, I think it should be looked at, as the continuing of the investigation by the police, and by the informers themselves, who are related to the deceased, of what Carter had said earlier. Again Carter was not in custody, she was not under police control ... she was obviously doing what she thought may be in her best interests, and, in those circumstances, the long conversation which involved going to where the body was took place."
For these reasons his Honour took the view that the conversations did not go beyond what was part of an appropriate investigation at that time by the police and the informers.
It is also to be remembered that in the second conversation the Eyleses were attempting to persuade the applicant (and Jewell) to lead them to the place where the body had previously been hidden (and where, if the first conversation was correct, it had been burnt). Furthermore, when defence counsel made application to exclude the Eyles tapes, it is apparent that no separate application was made to have the second tape excluded, counsel's application simply being made on the basis that both tapes should be excluded. An examination of the contents of both tapes does indeed support the argument put to us by Mr. Ryan that, once the first tape had been admitted into evidence, the applicant would then have wanted the second tape admitted in evidence, since in the second conversation she to some extent stepped back from her earlier admissions that she had strangled the deceased.
In all these circumstances, in my view his Honour was not in error in refusing to exclude the Eyles tapes taken on 9 and 10 May 1997. In so far as this Court is now required to consider the matter afresh, in the light of what occurred later in the trial, I do not think there was unfairness to the applicant if the tapes were admitted. Nor in my view was the evidence obtained at a price which is unacceptable having regard to prevailing community standards. In my view, ground 1 therefore fails.
Ground 2 claims that the judge failed to adequately charge the jury in relation to the principles of aiding and abetting, both in relation to murder and manslaughter. No complaint is made that the judge failed to direct adequately in relation to "acting in concert". The submission is that the trial judge should have directed the jury that in order to convict the applicant of aiding and abetting Jackson to murder the deceased, they would have to be satisfied beyond reasonable doubt that Jackson had murdered [or caused the manslaughter of] the deceased.
The passage from the judge's charge to the jury was, relevantly, in the following terms –
"In this case, the Crown allegation, the Crown case, is that the accused acted in concert with Jackson and did acts which were part of the acts which amounted to murder, or, alternatively, she was there and by her presence aided and abetted the commission of that crime, by either encouraging or assenting to it. So that is the basis on which the Crown puts its case.
If you are satisfied of those elements, then of course you would find the accused guilty of murder. If you have a reasonable doubt about them, you would of course find her not guilty of murder."
The submission continued that while the judge directed the jury that it had to be satisfied of "those elements" referred to in the first passage above in relation to aiding and abetting, the direction focused on the conduct of the applicant. It failed to make it clear, so the argument ran, that the jury also had to be satisfied beyond reasonable doubt that Jackson murdered the deceased, if the jury was to find her guilty of murder on the basis of aiding and abetting Jackson. The submission continued that the jury should also have been directed that to establish aiding and abetting on the basis of encouragement, there must not only be an intention to encourage but deliberate and wilful encouragement of the principal and that deliberate aid or encouragement may be established by proof that the alleged aider and abettor was both present and ready to give aid to the principal. Mr. Grace submitted that the judge's redirection failed to adequately direct the jury in accordance with law, nor did it adequately relate the facts of the case to the law.
In my view there is nothing in this point. The judge had earlier in his charge explained the concept of aiding and abetting to the jury in a manner which was faithful to what was said by Smith, J. in R. v. Lowery and King (No. 2).[12] I do not think there can have been any doubt in the jury's mind that they had to find that Jackson had the necessary intent, in so far as they were considering the question whether the applicant was guilty of aiding and abetting. Furthermore although exception was taken to the judge's charge, the original exception had nothing to do with the question of proof that Jackson was the murderer. After exception was taken, the judge redirected on this point, and no subsequent exception was taken after that redirection. It was always part of the defence case, that, subject to the possible question of causation, Jackson was the murderer. In these circumstances ground 2 also fails.
[12][1972] V.R. 560 at 561-562.
I shall deal with grounds 3, 4 and 5 together, since the unsafe and unsatisfactory ground was argued by Mr. Grace in this Court solely on the basis of inconsistency. Mr. Grace's primary submission was that the applicant had been convicted of murder on the ground of aiding and abetting Jackson in the killing of the deceased and her conviction of this offence was conceptually and technically inconsistent with the conviction of Jackson for manslaughter, he having no special defence such as self-defence, insanity or provocation. The related submission was that the Crown's acceptance of a plea of manslaughter by Jackson had resulted in a miscarriage of justice and justified the substitution of a verdict of manslaughter in relation to the applicant. Mr. Grace submitted that as a matter of principle, criminal liability should not be imposed upon an accused for aiding and abetting the commission of murder by a principal, where the offence had not been committed by the principal. Thus, before convicting a person as an aider and abettor of a commission of a crime, the jury would have to be satisfied beyond reasonable doubt that the principal offence was committed by the principal.
Mr. Grace argued that the Crown's acceptance of a plea of guilty on the charge of manslaughter from Jackson showed that the Crown could not put before the jury sufficient evidence of his mens rea for murder. The applicant's case had been that Jackson was in fact the killer, and liability should not be imposed on an aider and abettor, where there was no mens rea in the principal. The jury he submitted had to be satisfied that the principal had committed the murder. At the time the applicant's trial was being conducted, Jackson was himself also charged with murder and his trial was to follow. The Crown was no doubt hoping that after her trial the applicant would agree to give evidence against Jackson. Discussions had taken place, Mr. Grace put it, between the Crown and defence counsel and negotiations had taken place on various bases. The applicant had however refused to give evidence against Jackson, as also had Jewell. Accordingly the Crown was left in the position that in the absence of evidence from Jewell or the applicant, the only evidence of the requisite mens rea in Jackson was in certain admissions allegedly made by him to a fellow prisoner, together with circumstantial evidence. These considerations had forced the Crown to accept the manslaughter plea from Jackson. Mr. Grace placed great reliance on R. v. MacKenzie[13] and Osland v. The Queen[14]. In particular Mr. Grace referred to what was said in Osland by Gaudron and Gummow, JJ.[15] where their Honours said –
[13](1996) 190 C.L.R. 348.
[14](1998) 73 A.L.J.R. 173.
[15]At [14].
"The conviction of a person charged as accessory is not necessarily inconsistent with the acquittal or failure to convict a person charged as the principal offender. That is because the evidence admissible against them concerning the commission of the offence may be different. Even so, an accessory cannot be convicted unless the jury is satisfied that the principal offence was committed. Thus, if two people are tried together as principal and accessory and the evidence as to the commission of the crime is the same against both, acquittal of the person charged as principal is inconsistent with the conviction of the other."
Furthermore, McHugh, J.[16] said –
"Those who aided the commission of a crime but were not present at the scene of the crime were regarded as accessories before the fact or principals in the third degree. Their liability was purely derivative and was dependent upon the guilt of the person who had been aided and abetted in committing the crime. Those who are merely present, encouraging but not participating physically, or whose acts were not a substantial cause of death, were regarded as principals in the second degree. They could only be convicted of the crime of which the principal offender was found guilty. If that person was not guilty, the principal in the second degree could not be guilty. Their liability was, accordingly, also derivative.
Mr. Grace also relied on Surujpaul v. R.[17]
[16]At [71].
[17][1958] 1 W.L.R. 1050.
Mr. Grace alternatively submitted that it was an affront to the law and justice that the applicant was convicted of aiding and abetting Jackson, when the Crown had accepted that he was guilty of manslaughter because it was unable to establish murderous intent. The argument of affront to justice was maintained, notwithstanding that, on Mr. Grace's argument, it was the refusal of the applicant to give evidence against Jackson that was the reason for the Crown being unable to establish a case of murder against Jackson. He put it that if the applicant's conviction was not legally or technically inconsistent with the conviction of Jackson for manslaughter, they were nonetheless inconsistent in the circumstances of this case, and that justice and logic demanded that the applicant's conviction for murder therefore could not be allowed to stand. In support of the last submission reliance was placed on R. v. Darby[18] where Gibbs, C.J., Aickin, Wilson and Brennan, JJ. said –
"In the light of the wealth of both academic and judicial consideration that has been devoted to this topic in recent years, we have no doubt that this Court should now redirect the common law of Australia on to its true course. It should determine that the conviction of a conspirator whether tried together with or separately from an alleged co-conspirator may stand notwithstanding that the latter is or may be acquitted unless in all the circumstances his conviction is inconsistent with the acquittal of the other person. In our opinion such a determination will focus upon the justice of the cases rather than upon the technical obscurities that now confound the subject."
[18](1982) 148 C.L.R. 668 at 678.
Mr. Grace did not dispute that it is for the applicant to demonstrate that the verdicts were relevantly inconsistent; see R. v. MacKenzie.[19] The onus is by no means insubstantial. As their Honours said[20] –
"Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way in which the appellate court may reconcile a verdict, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellant court, upon this ground, to substitute its opinion of the facts for one which was open to the jury."
[19](1996) 190 C.L.R. 348, per Gaudron, Gummow and Kirby, JJ. at 366, proposition 3.
[20]At 367, in proposition 4
Mr. Ryan prefaced his response to the appellant's submissions on these grounds by arguing that there was no doctrine of inconsistent convictions, only inconsistent verdicts. I doubt if this submission can be made good, in the light of decisions such as Rowley;[21] Darby;[22] and MacKenzie,[23] and what was said by Gaudron and Gummow, JJ. in Osland.[24] But even if it is possible to find inconsistency in convictions, it is also reasonably apparent that it is more difficult to establish relevant inconsistency when the convictions said to be inconsistent were obtained in respect of different accused at different trials; Andrews Weatherfoil Ltd.;[25] Hui Chi-Ming v. The Queen;[26] and see the observations of McHugh, J. in Osland.[27]
[21](1948) 32 Cr.App.R. 147.
[22]148 C.L.R. 668 at 678 (the passage cited in [61] above).
[23]190 C.L.R. 348 at 366-368, especially propositions 2 and 5.
[24]73 A.L.J.R. 173 at [14] and [40]. Their Honours were in dissent, but not, I think, on this point.
[25](1971) 56 Cr.App.R. 31, at 40.
[26][1992] 1 A.C. 34, at 42-43.
[27]73 A.L.J.R. 173 at [118]-[121].
Here the alleged inconsistency is not one which arises by way of inconsistent verdict. Any inconsistency can only be said to arise because Jackson, who was asserted by the applicant to be the one who killed the deceased, pleaded guilty by agreement with the Crown to the lesser charge of manslaughter at a different and later trial.
Mr. Grace conceded in argument that each party present and acting in concert when a crime is committed is primarily liable for the acts of the other parties that constitute the actus reus of the crime, and thus the conviction of one of these parties is not necessarily inconsistent with the acquittal of the other party with whom the first is alleged to have acted in concert; Matusevich v. The Queen;[28] Osland per McHugh, J.[29]
[28](1977) 137 C.L.R. 633.
[29]73 A.L.J.R. 173 at [71] and [79-80].
The Crown case was that the applicant either acted in concert with or aided and abetted Jackson in killing the deceased. One aspect of the applicant's defence was that Jackson was the murderer and the applicant was not involved. But there was, as I think Mr. Grace conceded, plainly sufficient evidence upon which the jury would have been entitled to find that the applicant at least acted in concert with Jackson. If the jury was entitled to be satisfied, by evidence admissible against the applicant, of the actus reus and of the concert or agreement between Jackson and the applicant, then the verdict is, I think, unassailable. Since it is not now possible to discover whether the jury convicted the applicant on the basis of acting in concert, or aiding and abetting Jackson, it follows in my view that the applicant cannot establish that the verdict was inconsistent, the onus being upon her to do so. But even if the jury were simply satisfied that she was guilty of aiding and abetting Jackson, there was, I think, again sufficient evidence, admissible against the applicant, to establish the actus reus and that Jackson had the necessary intent; see Hui Chi-Ming;[30] R. v. Barlow;[31] R. v. Brien & Paterson.[32] On the admissions made by both the applicant and Jewell on the Eyles tapes, it would clearly have been open to the jury to find that Jackson and the applicant picked up the deceased in St. Kilda intending to have her killed, and that one or other of them killed the deceased in Jewell's flat, by first injecting her with a hot shot of heroin and then strangling her.
[30][1992] 1 A.C. 34 at 42-43.
[31](1997) 188 C.L.R. 1 at 11.
[32][1998] 1 Qd.R. 634, at 647-648.
In all these circumstances the submissions relating to inconsistency have not been made good and grounds 3 and 4 therefore fail. Nor do I think there is anything in the justice of the case to prevent the applicant's conviction for murder standing.[33] Ground 5 also fails.
[33]Cf. Darby 148 C.L.R. 668 at 678.
The application for leave to appeal against conviction should be dismissed.
CHERNOV, J.A.:
I agree that for the reasons given by Charles, J.A., this application for leave to appeal against conviction should be dismissed.
HEDIGAN, A.J.A.:
I agree with the reasons of Charles, J.A. and the orders proposed.
---
6
0
0