R v Carter - [2000] VSCA 6

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 324 of 1998

THE QUEEN

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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Carter

Details

AGLC: R v Carter [2000] VSCA 6
Case: [2000] VSCA 6
Decision Date: 15 February 2000

CaseChat Overview and Summary

The case of R v Carter involved a criminal prosecution where the defendant was charged with murder. The dispute centred around the admissibility of secretly taped conversations that the defendant had with a friend, who was also an agent of the police, as well as the consistency of verdicts between co-offenders in a case of murder. The matter was heard in the High Court of Australia.

The legal issues before the court were whether the admissions made by the defendant to the friend were voluntary and whether these should be excluded under the court's discretion to prevent unfairness to the defendant. Additionally, the court had to consider the principle of public policy and its role in the exclusion of such evidence. The court also examined whether the verdicts of guilty in separate trials for two co-offenders could be inconsistent, particularly when one pleaded guilty to manslaughter and the other was convicted of murder. The directions given by the judge to the jury on the concepts of acting in concert and aiding and abetting were also scrutinized.

The High Court held that the admissions made by the defendant to the friend were voluntary and should not be excluded. The court found that there was no unfairness in admitting the evidence, and the principle of public policy did not necessitate exclusion. Regarding the consistency of verdicts, the court determined that the verdicts were not necessarily inconsistent when one offender pleaded guilty to manslaughter and the other was convicted of murder. The judge's directions to the jury on the concepts of acting in concert and aiding and abetting were deemed appropriate.

The final orders of the court were that the secretly taped conversations would be admitted as evidence and that the verdicts of the two co-offenders were not inconsistent. The court affirmed the conviction of the defendant for murder.

Orders