R v Clarke Summary | CaseChat AU

SUPREME COURT OF QUEENSLAND

CITATION:

R v Clarke [2015] QCA 71

PARTIES:

R
v
CLARKE, Jade Maree
(appellant)

FILE NO/S:

CA No 131 of 2014
SC No 38 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

1 May 2015

DELIVERED AT:

Brisbane

HEARING DATE:

25 November 2014

JUDGES:

Carmody CJ and Morrison JA and Dalton J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Allow the application to amend the notice of appeal.

2.   Allow the application for leave to adduce evidence.

3.   Dismiss the appeal.

CATCHWORDS:

EVIDENCE – APPEAL AGAINST CONVICTION – JURY VERDICT UNREASONABLE OR INSUPPORTABLE BY EVIDENCE – where the appellant was convicted of murder as a principal offender – where the appellant filed an appeal against conviction – where the appellant asserted that the jury verdict was unreasonable or insupportable by the evidence – where there were internal and mutual inconsistencies in witness testimonies – whether it is unsafe to rely on the witness testimonies – whether there is a significant possibility of a wrongful conviction – whether it would be dangerous to allow the verdict to stand

EVIDENCE – APPEAL AGAINST CONVICTION – NEW EVIDENCE DISCLOSED AFTER TRIAL – ADMISSIBILITY OF NEW EVIDENCE – MISCARRIAGE OF JUSTICE – where the appellant was convicted of murder as a principal offender – where the appellant filed an appeal against conviction – where there was new witness testimony disclosed by the prosecution after trial – whether the testimony constituted “fresh” evidence – whether the testimony was admissible on appeal – whether the failure to disclose this evidence before trial resulted in a miscarriage of justice

Criminal Code (Qld), s 7, s 8, s 668E

Driscoll v The Queen (1977) 137 CLR 517; [1977] HCA 43, cited
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, considered
R v Katsidis; ex parte Attorney-General (Qld)[2005] QCA 229, considered

COUNSEL:

D R Lynch for the appellant
M R Byrne QC for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Director of Public Prosecutions (Queensland) for the respondent

THE CHIEF JUSTICE: The appellant was convicted in 2014 for participating in the murder of Darren John Britza. His death resulted from a bashing by Dean Wills (the appellant’s then partner) and another unidentified male called Shane in an industrial shed at Southport in 2001 (the incident). His remains were discovered in a shallow grave at Boyland in 2008.
The scene of the crime consisted of a large workshop with an adjoining office space. Access to the work area and office was via roller doors off a driveway (Exhibit 1 is a floor plan).
The appellant’s presence at the scene when the incident happened was conceded. What was in dispute is why she was there and what was her state of mind; i.e. was she a party to an unlawful killing or murder based on ss 7(1)(c) and/or 8, or an innocent bystander unwillingly and unwittingly caught up in a deadly vendetta.
The prosecution case was partly direct but mainly a circumstantial one which, to prevail, depended on guilty inferences arising from the testimony of four eye witnesses – Paul Dewar, Matthew Ireland, Bradley Southgate and his brother, Paul. Each witness apart from Bradley Southgate were heavy drug users at the relevant time and admitted that their senses and perceptions could have been distorted as a result. The learned trial judge appropriately warned the jury that, for this and other reasons, it would be dangerous to convict based solely on their uncorroborated evidence in the absence of supportive evidence.[1]
[1]AB 439.15-33 and AB 449.39-45.
Both Dewar and Ireland had made relevant prior inconsistent statements on a range of different topics. Ireland was testifying after having been given the benefit of a reduced sentence.[2] Dewar had been indemnified in respect of his evidence.[3] Each confirmed the truth of evidence they had previously given on oath even when it contradicted their first testimony.
[2]R440.8-20.
[3]R440.21-30.

The appellant’s contention

There are two grounds of appeal. First, that the jury’s verdict is unsupportable having regard to the evidence and should be set aside as unreasonable. Success on this ground means that the conviction must be quashed and a verdict of acquittal entered. Second, that the unavailability of material evidence from another witness not called at the trial resulted in a miscarriage of justice.
The appellant contends that the jury could only infer the requisite knowledge or intention if it accepted the testimony of Dewar, Brad Southgate, and Ireland. She asserts that the evidence of those witnesses was rendered so unreliable as to be incapable of establishing guilt[4] to the criminal standard.
[4]Submissions on behalf of the Applicant, para [1].
She contends, in particular, that (a) it was not open to the jury to accept the evidence of Dewar and Brad Southgate as both had previously given inconsistent evidence on oath, including versions that did not inculpate the appellant[5] and (b) Ireland’s evidence was incapable of acceptance as a reliable historical account of past facts due to the inconsistency infecting all aspects of it.[6]
[5]Submissions on behalf of the Applicant, para [24].
[6]Submissions on behalf of the Applicant, para [25].

The prosecution response

As to the first ground of appeal, the Director argues that the evidence of Bradley Southgate was sufficient on its own to support the verdict.
The Director contests the second on the basis that the fresh evidence raises no new matter of sufficient substance to justify granting the appeal.

The unreasonableness ground

The decisive question under this head is whether it was open to the jury to be satisfied of the appellant’s guilt beyond reasonable doubt. The answer depends on an examination of the whole body of the evidence adduced at trial.[7]
[7]M v R (1994) 181 CLR 487, 494-495.

A verdict may be described as legally “unreasonable” if, in all the circumstances, it is characterised exclusively or predominantly by logical inconsistency (for example, two verdicts on the same information that are inconsistent) or manifests perverseness (for example, where the verdict represents a finding contrary to the overwhelming preponderance of obviously credible evidence). The phrase “cannot be supported having regard to the evidence” is apt to describe a verdict that is based on evidence that is plainly defective or is so weak or obviously unreliable that reasonable doubt as to guilt must necessarily exist however the evidence as a whole is viewed.[8]
[8]R v Hayes (1973) 5 SASR 278.
The verdict must be set aside if the court concludes that there is a significant possibility of a wrongful conviction on the basis of all the available evidence taking the facts to be as the jury were entitled to accept them and that it would be dangerous to allow a verdict to stand in administering justice according to law.[9]
[9]Hayes v the Queen (1973) 47 ALJR 603, 604-605 per Barwick CJ.

Dewar

Dewar ran a legitimate panel beating and illegal drug distribution business from the murder site. Britza and the appellant were two of his illicit customers.
He made a statement to police in late 2009 and October 2011, testified at the committal proceeding in mid-2011 and 2012, and was later compulsorily examined at a Crime and Misconduct Commission hearing.

Evidence in chief

Sometime prior to the incident Dewar received a phone call at the shed from the appellant inquiring about Britza’s whereabouts, adding to the effect that ‘we have to sort some shit out with him’. Britza turned up at the shed later that evening. Dewar knew that Britza was in the shed, but did not know where.
Dewar was “in [his] workshop [when a car] car [which turned out to be a station wagon driven by the appellant] pulled up the driveway … that fast that it was like they weren’t going to stop in time”.
The station wagon reversed into the shed with the tail gate open.

Dewar described how “[there were] seconds [of] loud yelling, screaming, punching, banging on the wall behind on the opposite side of the wall”. He stated he was sure statements were made to the effect that “you’re fucked, you’re fucked” and claimed that “the beating just kept going”. Dewar testified that the noises he heard lasted for about 30 seconds and were “the loudest thud[s] you could ever imagine … like someone had a sledge hammer trying to knock down the wall.”

After the screaming stopped Wills and Shane dragged Britz from the office through the shed to the rear of the station wagon. Dewar testified that he could not observe the inside of the rear of the station wagon from his position.

Britza’s face was “unrecognisable” and identifiable only by his distinct goatee. He was folded up into a blue tarpaulin taken from the appellant’s car and taped up, starting with his arms and then the rest of the body. According to Dewar, Britza was beaten again with kicks and punches to the head and then stabbed repeatedly.

Dewar spoke to the appellant after the incident on the driveway outside the shed near the front of the Commodore. She said to him “You’re lucky we got him. If we didn’t get him, it was going to be you, because he was doing drive-bys on his ex-girlfriend in Labrador in one of your cars”.
Dewar later saw blood on the wall near the small roller door and office area, and on the ground where Britza had been dragged from the office through the workshop to the car. There was also a substantial puddle of blood near the large roller door.
Dewar testified that the appellant later told him sometime after the incident that “Everything will be alright. Just keep your mouth shut”.

Cross examination

Dewar claimed to be telling the truth when he gave evidence, and had no reason to now modify his version of events, but acknowledged under questioning by defence counsel that he had previously given sworn evidence inconsistent with his evidence in chief to the effect that:

·    he was unsure whether it was the appellant who told him about Britza doing drive-bys;[10]
[10]AB 109, 111.
·    he likely learned after the event that Britza had been doing drive-bys on some girl;[11]
[11]AB 96-97.
·    he did not hear the appellant say anything at the time of the incident;[12]
[12]AB 99.
·    information about Britza having "dramas" before the incident may not have come from the appellant;[13]
[13]AB 118-119, 128-129.
·    the appellant did not speak to him on the day of the event;
·    the conversation with the appellant prior to the incident was not mentioned until the CMC hearing on 6 October 2011;
·    when he spoke to the appellant after the incident she did not threaten him or pass on a message, but simply expressed that her approach was to "keep her mouth shut";[14]
·    the conversation about being lucky they got Britza rather than him occurred on some day after the event;[15]
·    he did not hear the appellant say or do anything on the day of the incident;[16]
·    the post-assault conversation with the appellant was not mentioned to the police at all, and at the committal it was conceded that he had probably given “three different versions”;
·    he confirmed the conversation at the CMC hearing on 6 October 2011, but had thought it had occurred after, not on the day of, the incident;
·    he had been provided with an undertaking by the Attorney-General that anything he said in evidence would not be used against him;[17] and
·    that although he said in court that he had seen Britza stabbed by one of the assailants, he expressly denied having seen any knife in his police statement.[18]

[14]AB 111.

[15]AB 100-101, 115, 125-127.

[16]AB 107.

[17]AB 143-144.

[18]AB 144-145 The Learned trial judge warned the jury of the danger of acting upon the evidence of Dewar (AB 439-440).

Dewar agreed that he possessed a significant drug habit, and was trafficking in illicit substances, at the time of these events. He described the effects of the use of such drugs, which included going for long periods without sleep, altered states of reality, not absorbing what was happening, being "scattered" every day, and memory deficiencies. He also admitted to having been convicted of committing serious property, violent, and driving offences. He stated that he had not been charged with any drug offences arising out of this period.[19]
[19]AB 131-1137.

Brad Southgate

Bradley Southgate first gave his version of events at a CMC hearing on 16 September 2011.[20]
[20]RB 172 lines 13-18.

When the assault on Britza occurred he was at the shed[21] working on his car with his brother Paul Southgate.
[21]AB 161 lines 21-24.

Evidence in chief

His evidence was to the following effect:

·    three people (two males and a female) walked past him through the shed towards the office area. He had not seen any of them before;
· he then heard yelling and screaming noises which sounded like an assault,[22] and heard a female voice saying "you're a fucking maggot, a dog cunt" or something of a similar nature;
·    Britza was dragged out of the office to the middle of the shed by one of the males and beaten again;
·    The female said something about Britza's nose being injured “as if to make light of his injury” and that “he's had enough”. Britza was then dragged to the rear of the station wagon, where he was rolled into a tarp before being placed into the rear of the car;
·    He thought the female got into the driver's seat and the car then left. He got in his car “within seconds” and drove away;[23] and
·    Bradley Southgate left out that his brother was present.
[22]AB 164 lines 1-19.
[23]RB 165 line 1 – RB 166 line 45.

Cross examination

Bradley Southgate accepted telling the truth at the committal.[24] In the course of that account, he said that during the incident he had only heard the female say "he's had enough"[25] and acknowledged that he could not be sure that the different account he had given at trial was accurate.[26]
[24]RB 178-182.
[25]RB 182 lines 15-33.
[26]RB 182 line 38- RB 183 line 23.
He too had a significant drug problem at the time of the incident and had possibly used drugs earlier that day. He also described the effects of having used drugs as including an altered state of reality, inability absorb what was happening, staying awake for days, and memory deficiencies.[27]
[27]RB 167-170.
Bradley Southgate agreed that his reason for being at the shed was to obtain drugs.[28]
[28]RB 167 lines 36-37.
He admitted that he had lied on oath when giving evidence before the CMC by not saying that his brother was present at the time of the events[29] and had not mentioned hearing or seeing a female involved in the incident.
[29]RB 169 line 31 – RB 173 line 42; RB 175,176.

Ireland

Ireland visited the shed every day. He knew Britza[30] and had loaned him a silver Ford LTD to drive.[31]
[30]RB 216 lines 30-33.
[31]RB 216 line 39 – RB 217 line 7.
Ireland gave his first record of interview on 13 February 2009, and provided a statement to police on the same day.[32] He gave evidence before the CMC on 30 March 2012, and then evidence at committal proceedings on 10 September 2012.[33]
[32]RB 225 lines 180-33.
[33]RB 226 lines 1-32.
The evidence indicates that Ireland had been sentenced more leniently on other offences in exchange for giving evidence against the appellant. Ireland had also not been charged with any offence associated with his drug use around the time of the offence. He had been informed by police that if he gave evidence against the appellant, he would not be charged with any such drug offences.

Evidence in chief

Ireland was at the shed when a male arrived and asked who was driving his Fairlane the night before. He said Britza had been. The male then spoke about wanting to speak to Britza because he had done something bad in the car. The male left and he later called Britza who then came to the shed and the two used amphetamines.[34]
[34]RB 217 lines 8-28.
Ireland and Britza were sitting in the office area of the shed when a female and two males he did not know came in. The female closed the small roller door and then spoke using their first names. One of the males then struck Britza in the head repeatedly with an iron bar and dragged Britza into the shed.[35]
[35]RB 217 line 43 – RB 219 line 39.
The female told him to get a tarp from another car in the shed and put it on the ground. Britza was wrapped up in the tarp. One of the males then stabbed Britza a number of times through the tarp. The female told someone to get some duct tape. Ireland and the two males taped around the outside of the tarp. Britza was put into the rear of a vehicle.[36]
[36]RB 220 line 9 – RB 222 line 38.
It was hard for Ireland to remember what happened so long ago. He had a long history of drug use and criminal offending. At times he relied upon his drug use as the reason for his poor recollection and failure to provide a consistent account of events.[37]
[37]RB 223 – RB 247.
Reliance upon his account was abandoned by the Crown Prosecutor in his final address and the trial Judge warned the jury of the danger of acting on it.[38]
[38]RB 439-440.

Cross examination

Ireland’s testimony proved inconsistent on many points. He regularly became frustrated with the line of questioning taken by defence counsel even though it simply consisted of going through his various statements in relation to each point of evidence. He was prone to outbursts of foul language, particularly during the first full day of cross-examination. Despite admitted inconsistencies he denied lying in previous statements. He claimed on numerous occasions that his memory of the murder was perfect, but conceded that his past and, in the case of prior statements, contemporaneous drug use affected his ability to recall particular details. He appeared confused and overwhelmed by the length and detail of cross-examination, and grew particularly argumentative and resentful towards the end of questioning. The court was adjourned 45 minutes early on one day because Ireland was tired and appeared to be “nodding off” in the witness box.
Ireland initially told police there were four, not three, people involved in the incident. He explained that he did not refer to the fourth person because “that was the driver who did not get out of the car”. He later said they may have disembarked from the car and accepted he had said previously they had done so.[39]
[39]AB 223 line 19, 224 line 2.
Other material inconsistencies included:
·attributing the cleaning up of the blood after the incident to different people;
·the time Britza returned Ireland's car and why he did not use Ireland's red station wagon;
·the location Britza parked the car when he returned it;
·whether a male person came to the shed before the incident asking to know who drove Ireland’s car the night before and demanding that Britza be told to come to the shed, or being assaulted to get him to call Britza;
·whether the male told them what Britza had done when driving the car the night before;
·whether he had ever seen the male before;
·which phone Ireland used to call Britza;
·who actually called Britza to get him to come to the shed;
·whether the female who came to the shed used their names;
·whether Ireland could see the roller door and the station wagon from where he was in the office;
·whether the female was already in the office when the vehicle arrived;
·whether Britza was punched before being hit with the iron bar;
·where the iron bar had come from, whether the male still had the bar when Britza was dragged into the shed, and whether he was assaulted with it there as well;
·whether Britza was dragged or carried into the shed and by whom;
·where the tarp came from;
·the colour of the tape used;
·what part of the tarp that was taped up;
·who put Britza into the car;
·how Ireland came to leave the shed; and
·whether Dewar was still at the shed when he left.

Ireland also left out helping with the tape in some statements to the police.

Paul Southgate

Paul Southgate was present in the shed at the time of the assault and was with his brother at a work bench at the rear of the shed.[40]
[40]RB 199 lines 4-24.

Evidence in chief

He heard the sound of males shouting at each other, then banging noises like someone was being thrown against a wall.[41] He thought these noises were coming from the office area, into which he could not observe.[42] Two males dragged another male person along the ground in the direction of a station wagon parked outside the main entrance. One of the males had what he thought was a pistol down the back of his pants.[43]
[41]RB 195 lines 18-26.
[42]RB 195 lines 30-31.
[43]RB 195 line 33 – RB 196 line 15.

Cross examination

He did not see anyone enter the shed beforehand and acknowledged that if they had entered through the shed he would possibly have seen them.[44] He did not see or hear a female during the event.[45] He said the car left and he and his brother went back to working on his car. He did not regard the event as unusual because he'd seen assaults there previously.[46] He said he did not later speak to his brother about these events.[47]
[44]RB 202 line 43 – RB 203 line 6.
[45]RB 200 line 18; RB 201 lines 24-26; RB 203 lines 44-46.
[46]RB 202 lines 8-41.
[47]RB 204 lines 27033.

The appellant’s unsworn account

In her account to police the appellant denied prior knowledge of the intention of the others to kill Britza or beat him up. She suggested that the nature of her relationship with Wills was such that she was at the shed because he had told her to drive him there without telling her why in the context of a relationship in which he did what he pleased and she did what she was told.
A transcript of the conversation she had en route to the police station appears at AB568-608. A transcript of the formal interview at the police station is at AB609-684. 20.
She admitted driving a white station wagon to the shed because her then boyfriend Wills told her to, but consistently denied any involvement in a plan to assault Britza or knowing in advance that there was one. On her account she was at an address at Southport when Wills arrived and told her he needed her to drive a car. He did not tell her why. She had never seen the vehicle before. A blue tarp was inside. She said that another male who she heard Wills refer to as "Shane" was also in the car. She had never seen him before.
The appellant said she was told where to drive to and realised that it was the shed where she sometimes purchased drugs from Dewar. She was worried that Wills was intending to assault Dewar for selling her drugs. She also feared that she would be assaulted as well. When they arrived at the shed she spoke to Dewar inside the shed. She next recalled Wills putting a male she did not know into the rear of the vehicle. She said the male had blood on his face.
Wills told her to drive so she got in and drove north on the highway. When she reached a BP service station at Coomera she pulled over and disembarked from the vehicle. She told Wills she wanted nothing to do with events, walked away and had no knowledge of what happened after that. Sometime later she burnt a bag of what she thought was clothing because she was told to do so by Wills.
At the time of her arrest she was living in Brisbane with her children and working. She no longer used drugs but was still in a relationship with Wills which she managed by keeping him at a distance despite not being able to get away from him completely. She admitted speaking to him in the days before her arrest after being contacted by her sister who had been interviewed by police.

There were reasons that the jury might not accept her version to police as being wholly truthful. For example, she denied the presence of any other person in the vehicle (the person referred to as Shane in the trial) until after what must have been about two hours of formal questioning and she was confronted with witness statements which referred to a second male arriving in the vehicle.[48] Her stated reason for not mentioning the second male earlier suggests strongly that it was a deliberate omission from her narrative. There were other statements that the prosecution suggested were lies attributable to the appellant which were capable of reflecting poorly on her credibility. They are summarised, and followed by the appropriate direction, at R450.6-451.5.[49]
[48]R670-673; R63.31-64.19.
[49]See also R480.22-.33; R735.

The forensic evidence

A tarp and black tape were found at the grave site. The facial bones were fractured into multiple small pieces.[50]
[50]ARB 402.
Part of the upper jaw was completely separated from the skull so that the nasal bone, the maxilla, the cheek bones and bones around the eyes were also fractured.
The injuries were consistent with someone being struck in the face with a bar with severe force. The fractures could have been caused prior to, or after, death and led at least to concussion, if not injury to the brain or cranial cavity. The most likely explanation of death was that the bones supporting the airway collapsed and the associated bleeding obstructed the airway causing asphyxia.[51] In cross-examination, Dr Ong said the injuries to the facial region were not commonly caused by punching. Dr Ong stated that it would take considerable force to cause that number of fractures, but repeated punches to the same area could do so.[52] He unable to say whether the injuries, if caused prior to death, resulted from multiple kicks or punches, or assault with an iron bar.[53]
[51]ARB 405.
[52]ARB 408.
[53]ARB 408-9.
A rib and one of the metacarpals was also fractured.[54] Once again, Dr Ong was unable to say whether the injuries were inflicted prior to the incident, during the incident, or some time shortly after death, say up to a couple of months. Any soft tissue damage would have been undetectable due to the completely skeletal state of the body of the deceased when it was found.[55]
[54]ARB 405.
[55]ARB 406.
Certain aspects of the descriptions given by the three witnesses are consistent with these findings. Dewar, Brad Southgate, Paul Southgate and Ireland, for example, all described Britza as having suffered from significant head injuries as a result of the assault similar to those identified by Dr Ong. Ireland and Dewar both recalled the accused being stabbed, though Dewar was inconsistent on the question of whether he saw a knife. Dewar and Ireland also identify the use of duct tape.

The summing up

The learned trial judge rightly summarised that, for the jury to be able to convict the appellant of murder pursuant to ss (7)(b) and (c), the jury had to be satisfied beyond reasonable doubt that: (1) the perpetrators together caused the death of Britza; (2) the appellant in some way assisted the co-perpetrators to perform the murder, or did an act with the intention of assisting them; (3) the appellant assisted or acted with the intention of helping the perpetrators to commit the offence;[56] and (4) when she so assisted or acted, she knew the perpetrators intended either to kill Britza or do grievous bodily harm to him.[57]
[56]See R v Roberts; R v Pearce [2012] QCA 82.
[57]See Borg v R [1972] WAR 194 at 199; R v Beck [1990] 1 Qd R 30; 43 A Crim R 135; R v Jervis (1991) 56 A Crim R 374; see also Maxwell v DPP for Northern Ireland [1978] 3 All ER 1140 (HL) where the accused was convicted of an accessory offence, it having been proved that he drove the perpetrator to the scene of the crime knowing that they intended to set off a bomb.
His Honour rightly told the jury that to convict under s 8 they had to be satisfied beyond a reasonable doubt that: (1) the appellant and her two male companions held a common intention to prosecute an unlawful purpose; (2) the offence was committed in the prosecution of the common purpose; (3) that commission of the offence was a probably consequence of prosecuting the common purpose.[58]
[58]See ARB 742.

The learned trial Judge fully explained the jury’s fact finding functions, what evidence is and how it should be assessed, the difference between primary facts and inferences, the burden and standard of proof, the nature of a circumstantial case and the relevant process of inferring intent, and the need for the prosecution to exclude all reasonable explanations for the events consistent with innocence to prove the case against the appellant beyond reasonable doubt.

Appropriate Robinson directions were given, as were the usual directions and warnings regarding inconsistencies in evidence, particularly in relation to the evidence of Dewar, Brad Southgate and Ireland variously on account of their drug use, inconsistencies in testimony, indemnities from prosecution, and non-prosecution for drug use mentioned in their statements to police.[59]
[59]ARB 339-340.

Ability of the evidence as a whole to legally support the verdict

The appellant admitted the date, place and cause of death pursuant to s 655 of the Criminal Code. The prosecution case against her was, as already noted, based on ss 7(1)(b), (c) and 8 of the Criminal Code. Preconcert was the only contentious issue at trial.

Under s 7 every person who does or omits any act to enable or aid another person to actually commit the offence is deemed to have taken part in and be guilty of the offence.
Section 8 makes each of two or more persons who form a common intention to prosecute an unlawful purpose in conjunction with one another liable for an offence of such a nature that its commission was a probable consequence of the prosecution of that purpose.
The primary fact finding function is entrusted to the jury. It has had the incomparable advantage of having seen and heard the witnesses.

It is true that the testimonies of each of the witnesses are infected by internal inconsistencies. However, many elements of the witnesses’ testimonies evince a remarkable resemblance. Each of the witnesses testimonies permit a strong inference to be drawn that the appellant was at the scene of the crime willingly rendering significant assistance to the perpetrator.

The appellant has not alleged – nor adduced any evidence suggesting – that the witnesses conspired together to contrive a fraudulent account of events. Indeed, if such evidence existed, it should have been presented to the jury at the original trial. Without conspiracy, it goes beyond the limits of reason and coincidence to propose that each of the witnesses separately contrived, or incorrectly recollected, a version of events which happened to arrive at substantially the same conclusion.

Three unreliable witnesses may produce three separate accounts; but in the absence of conspiracy, it would be truly extraordinary for each witness to converge on the same conclusion. In my view, the mutually reinforcing effect of all available inferences was capable of supporting the circumstantial case against the appellant and enables the jury to safely and legally reach a sound conviction.

There was no dispute that the appellant drove to and was present in the shed at the time that the fatal injuries were inflicted, or that she drove away from the shed after the incident with Wills and Shane in the car and Mr Britza tied up in the back.
In my opinion, a guilty verdict was well and truly open on the undisputed evidence that:

· the appellant drove the killers to the shed with apparent purpose;

· Britza was assaulted very soon after her arrival in the office, and she remained there throughout the assault; and

· she drove the car away from the scene with a badly injured, if not dying or dead, man wrapped in a taped up tarpaulin that the killers had brought with them.

In addition, the jury could have acted on some or all of the following evidentiary facts:

· the appellant’s act of driving the perpetrators to the shed on the day of the incident;

· the targeted and vicious nature of the assault which commenced almost immediately after arrival at the shed;

· the appellant’s suggestion to Wills and Shane that Britza had “had enough”;

· the appellant drove the principal offenders away from the shed with a badly injured, if not dying, Britza tied up in the back of the station wagon;

· the appellant’s consternation right from the moment she first saw a news item about Britza’s body being found under a bridge;[60]
[60]Summarised in the summing up at R456.8-56.15, with the prosecutor’s closing address on this topic summarised at R480.47-482.43.

· the appellant walked across the shed with the perpetrators, swearing at Britza;

· her comments about Britza’s damaged face;

· the appellant making a phone call to the shed about Britza’s whereabouts prior to the attack;

· the appellant telling Dewar to keep quiet;

· the appellant referring to Britza and Ireland by name;

· the appellant directing Ireland to get the tarp; and

· the appellant telling Chris to get tape.[61]

[61]Summarised in the summing up at R456.17-56.24.

Further, her assertions of being dominated by Wills needed to be assessed against the background of a series of telephone intercepts between her and Wills in which she was often heard to tell him that she loved him, albeit eight years after the killing.

Whilst there were many reasons that a reasonable jury might find aspects of Ireland’s evidence unreliable, there were a number of important aspects of his evidence in which he had been largely consistent, and for which there was some support from the evidence. It is noteworthy that there were markings on the tarpaulin consistent with stab marks[62] and whilst there was no tape on the exterior of the tarpaulin,[63] the tape which was found inside the tarpaulin was in a clump[64] and was thus suggestive of having been removed from a surface before the tarpaulin was finally placed around the body.
[62]R415.
[63]R420.40-420.43.
[64]R414.34.

Finally, although Brad Southgate’s overall credibility was put in issue, he gave evidence to the effect that the appellant swore at and abused Britza as he was being bashed – as it transpired to death – in the office and poked fun at the nature and extent of his badly disfigured face.
Unlike other witnesses, drug use was not a factor in the assessment of the reliability of his observations at the time of the incident or his recollection of them. Nor was he indemnified or an intrinsically suspect witness for any other reason.
Moreover, a reasonable jury could have rejected the appellant’s unsworn version of event about what happened before arriving at, and after she left, the shed.

The fresh evidence ground

The prosecution made a post-trial disclosure of the statement of Paul Jeffrey Taylor to the defence.[65] The existence of Taylor as a potential witness to any relevant event was unknown to the defence before the statement was provided.
[65]See Affidavit of Peter Apostolos Delibaltas.
The statement is signed and dated 9 June 2014.
Taylor shared a house with the deceased Britza. He asserts that Britza had told him of a dispute that he had with a male named Dean Wills over a girl named Belinda Miach.
Taylor later met Dean Wills through association with brothers named Matt and Shane Hanse. He admits being present on a number of occasions when Britza used different cars on different occasions to do "burnouts" in front of the Hansen's mother's place. Shane Hansen had owned a white Holden station wagon.
Taylor says she was present with the Hansen brothers and Dean Wills when they discussed Britza doing burnouts at their mothers’ place. Taylor told them Britza might be found at Dewar’s shed. Wills questioned him about Britza's name and tattoos, then became angry. Wills rang the shed referred to "Darren" and said "keep him there until I get there”.
Wills and Shane Hansen then left the house. Shane Hansen later returned “in a panic”. Taylor overheard him tell someone that he had lost his car keys and to tell his brother Matt that his car had to be “burned out”. Hansen later told Taylor to leave the house before Wills arrived and told his brother “I’ve fucked up. He is gone”.
It is submitted for the appellant that Taylor’s evidence was clearly relevant to the credit of Dewar and had the potential for rejecting his account of the appellant’s role and, having regard to the “marginal” prosecution case, not calling Taylor resulted in a miscarriage of justice.
The Director concedes that Taylor’s statements constitute fresh evidence, but claims they do not raise a significant possibility or likelihood that, in light of the totality of the admissible evidence – both fresh and that previously given at trial – a jury acting reasonably would have acquitted.[66] Put another way, the Director contends that the omission of Taylor’s statement has caused no substantial miscarriage of justice.
[66]R v Katsidis; ex parte A-G (Qld) [2005] QCA 229, [18]; R v Main (1999) A Crim R 412.
This Court may dismiss an appeal if there has been no substantial miscarriage of justice.[67] There will be no substantial miscarriage of justice if a reasonable jury, properly instructed and acting on the admissible evidence, would have inevitably been satisfied beyond reasonable doubt that the accused is guilty of the relevant offence for which they were convicted.[68] In determining this question, this Court must perform an independent assessment of the evidence and make appropriate allowances for the natural limitations of an appellant court acting on the record.[69]
[67]Criminal Code (Qld), s 668E(1A); R v Spina [2012] QCA 179, [42]-[47].
[68]Driscoll v The Queen (1977) 137 CLR 517, 524 per Barwick CJ.
[69]Darkan v R (2006) 227 CLR 373, 399 per Gleeson CJ, Gummow, Heydon and Crennan JJ.
Taylor’s statement establishes a direct connection between Dean Wills and Britza, provides an apparent motive for Wills to harm Britza, identifies Shane Hansen as the other person most likely to have participated in killing, confirms Ireland and Dewar’s version about receiving a phone call at the shed about Britza before the incident, and puts Wills and Hansen in company on the day of the incident.
As far as the case against the appellant is concerned, however, the evidence directly contradicts Dewar’s claim that it was the appellant (not Wills) who called asking about Britza before the incident. It is also inconsistent with Dewar’s assertion that the appellant told him he had been mistaken for Britza as the person doing “drive bys”. Taylor leaves no doubt that Britza was identified by the Hansen brothers as the person responsible for doing “burnouts” at their mother’s house.
Jury acceptance of Dewar’s account was not necessary to convict. The evidence of Brad Southgate alone was legally sufficient. In any event, Taylor’s statement acts both ways. It has Shane Hansen and Wills together attending the shed. Taylor’s account of Wills ringing the shed on the day of the attack sits comfortably with the proposition that the appellant had been earlier ringing looking for the deceased when Wills came across information as to where he was and acted on it.
Wills and the appellant may well have had different reasons for involvement in the attack on Britza from Shane Hansen’s and does not contradict the appellant’s stated motives.
The statement of Taylor sheds new light on certain aspects of the events in question, but does not raise a significant possibility that a jury acting reasonably would have acquitted this appellant. Accordingly, I am satisfied that the omission of the evidence from trial has caused no substantial miscarriage of justice.
Both grounds should be rejected.

Proposed orders

For the reasons given, I agree with the orders proposed by Dalton J.

MORRISON JA: In March 2001 Mr Britza died as a result of injuries inflicted at an industrial shed at Southport. Seven years later his remains were discovered in a shallow grave under a bridge.
The shed was leased by Mr Dewar. It was where he carried out his businesses of panel beating and drug trafficking. Mr Britza regularly went there to buy drugs. Ms Clarke also bought drugs from Mr Dewar.
In November 2009 Ms Clarke was interviewed by police. She said she did not know the assault was going to happen, took no part in it, and did nothing to assist it. Appearances were against her. On her own account: at the request of her boyfriend, Mr Wills, she drove Mr Wills and Mr Shane Hansen to the shed in a station wagon; she thought that Mr Wills was going to “hassle” someone, and that someone was “going to get a flogging”; she was in the shed when Mr Britza was assaulted by Mr Wills; after the assault she saw Mr Wills lift Mr Britza, his face bleeding, into the back of the car; she drove the car away with Mr Britza in the back.
She was convicted of murder. She seeks to challenge that conviction and for that purpose applies to call fresh evidence. The Crown conceded the evidence was fresh, and therefore the issue raised by the application is whether there is a significant possibility, or is it likely, that had the jury known of it, there would have been an acquittal?[70]
[70]R v Katsidis; ex parte A-G (Qld) [2005] QCA 229; R v Main (1999) 105 A Crim R 412.
The issues raised by the appeal are whether:
(1)the verdict unreasonable or unable to be supported by the evidence;
(2)there was a miscarriage of justice because the fresh evidence was not led at trial.[71]
[71]This ground was added at the hearing in an amended notice of appeal. The question of leave to amend was reserved.
It is convenient to deal with the fresh evidence point after the main ground of appeal.
Unreasonable or unsupportable verdict
The evidence as to Ms Clarke’s involvement in the death of Mr Britza came from a number of witnesses, Mr Dewar, Mr Ireland, Mr Paul Southgate and Mr Brad Southgate.
The credit of all were subjected to sustained attacks on a variety of bases including: inconsistencies in their evidence at the trial; prior inconsistent statements; heavy drug use affecting memory or perception; criminal activities including dishonesty offences; in the case of Mr Dewar, that he had been given an indemnity under the Penalties and Sentences Act; and in the case of M Ireland that he had given an undertaking to give evidence in return for reduced sentences in other offences, under s 13A of the Penalties and Sentences Act.
The question for this Court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that Ms Clarke was guilty.[72] The Court must proceed with an assessment of the evidence that was before the jury, with the guidance of M v The Queen[73] in mind, that is, it must pay full regard to the considerations that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses.
[72]M v The Queen (1994) 181 CLR 487, at 493. (M v The Queen)
[73]M v The Queen (1994) 181 CLR 487, at 493.
The High Court said:[74]
“In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.”
[74]M v The Queen t 494-495, footnotes omitted.
The reasons of Dalton J, which I have had the considerable advantage of reading in draft, sets out a full synopsis of the evidence in paragraphs [138] to [220], which I am content to adopt. A full assessment of the evidence leads to this sequence of testimony:
(a)Ms Clarke was Mr Wills’ girlfriend at the time;[75]
[75]Ms Clarke’s statement to police (Statement), AB 616.
(b)some time prior to the assault Mr Dewar was at the shed when he received a call from Ms Clarke, asking whether Mr Britza was there, and if Mr Dewar could let her know when he was; Ms Clarke said something like “we have to sort some shit out with him”;[76]
[76]Mr Dewar, AB 82, 92, 157.
(c)Mr Wills picked Ms Clarke up in a white station wagon and at his request Ms Clarke drove the station wagon to the shed, where Mr Britza was;[77] she thought Mr Wills was going there to “hassle the guy, ‘cause he thought he sold me drugs”,[78] and that the guy might “get a flogging”,[79] referring to Mr Dewar;
[77]Statement, AB 612-613, 616-617.
[78]Statement, AB 618; she called him “Paul”, a reference to Mr Paul Dewar.
[79]Statement, AB 629.
(d)Mr Wills and Shane Hansen were in the car;[80]
(e)once the car arrived it was only a short time before there was a violent assault on Mr Britza;[81]
(f)Ms Clarke was inside the shed when the assault occurred,[82] vocally and aggressively participating;[83] she was abusing Mr Britza, saw the injuries and said “he’s had enough”;[84]
(g)after the assault Mr Britza was wrapped in a tarp;[85] Mr Ireland said it was Ms Clarke who told him to get the tarp, and wrap Mr Britza in it;[86]
(h)Ms Clarke saw Mr Wills put a man in the back of the car; he was lying down and she believed he was alive;[87] the man was bleeding from the side of his face;[88] there was a blue tarp in the back of the car;[89]
(i)Ms Clarke drove the car away,[90] with Mr Britza in the back;[91]
(j)she was scared and when she got to a service station at Oxenford, near where her sister lived,[92] she got out because “[she] didn’t want to be fucking there anymore”;[93] as to the condition the man in the back of the car she said “Well I – I’d like to believe he was alive”, but she didn’t know and didn’t want to think about it;[94] she said she “didn’t know [that Mr Britza] was dead for a fact” but when asked did she suspect he was, answered “Of course”;[95]
(k)Mr Wills told her to go to her sister’s place;[96]
(l)later Ms Clarke rang Mr Dewar to tell him to keep his mouth shut;[97]
(m)there was a blue tarp wrapped around Mr Britza’s remains.[98]
[80]Statement, AB 613, 672-673. It must be noted that Ms Clarke initially said that only Mr Wills was in the car with her. It was when the statements of Mr Dewar and Mr Ireland were put to her that she then said that Mr Shane Hansen was also in the car.
[81]Mr Dewar AB 82, 83: Mr Brad Southgate AB 163-165; Mr Paul Southgate AB 195; Mr Ireland AB 219, 220; Dr Ong AB 404-405.
[82]Mr Ireland AB 218-219, 275, 323-328, 330-332, 344-345, 400-401.
[83]Mr Brad Southgate AB 163-165, 167, 179, 182, 191-193.
[84]Mr Brad Southgate AB 164-165, 182, 192-193.
[85]Mr Dewar AB 84-85, 142-143; Mr Brad Southgate AB 166, 180; Mr Ireland AB 220.
[86]AB 220, 221.
[87]Statement, AB 629.
[88]Statement, AB 631.
[89]Statement, AB 630.
[90]Statement, AB 634-635; Mr Brad Southgate AB 185.
[91]Statement. Mr Ireland AB 221.
[92]Statement, AB 638.
[93]Statement, AB 635.
[94]Statement, AB 637.
[95]AB 683.
[96]Statement, AB 637.
[97]AB 87, 111.
[98]AB 25, 28-31; 402; 412.
It is true to say that the evidence of each of the witnesses contained inconsistencies and there were inconsistent prior statements. It is also true that their evidence was affected by the impact of their drug use on memory. However, the jury were given appropriate warnings about relying on the evidence of the witnesses to the assault, and were directed that it would be dangerous to convict on their evidence in the absence of supporting evidence. Specific warnings in that respect were given in relation to Mr Dewar and Mr Ireland. Dalton J has set out a summary of the learned trial judge’s summing up in paragraphs [221]-[231] of her reasons, with which I respectfully agree.
In my view the evidence, particularly that referred to in paragraph [106] above, could be accepted by the jury, and satisfy them beyond reasonable doubt as to Ms Clarke’s guilt as a party to the offence, even allowing for doubts because of the attacks on credit and reliability referred to above. There is a core of consistency in that evidence when one puts the accounts together, and when one takes Ms Clarke’s statement into account. Some particular features will serve to demonstrate the point.
Mr Dewar’s evidence was that Ms Clarke was seeking to know the whereabouts of Mr Britza beforehand. She said something like “we have to sort some shit out with him”. His evidence was that after the assault Ms Clarke told him to keep quiet. In my view the jury could have accepted that both occurred, notwithstanding the inconsistencies.
Ms Clarke’s own account has her driving Mr Wills and Mr Shane Hansen to the shed at a time when she was concerned that someone was going to be assaulted.[99] The fact that she initially said that it was only Mr Wills in the car, and only changed her statement when she was confronted with the versions of Mr Dewar and Mr Ireland, may have been seen as an attempt to minimise her account so that it was confined to what the police then knew. The reason given for not mentioning him earlier was that she didn’t know anything about him. The jury may have inferred those circumstances betrayed knowledge of what was intended. That there were, in fact, two men going to “hassle” or give someone a “flogging” might suggest itself that the intended assault would be violent.
[99]She thought it might be Mr Dewar.
On her own account Ms Clarke backed the car up to the shed roller door opening, which the jury may have thought a curious thing to do unless the parking was to assist the outcome of the assault. There was nothing to suggest that the car could not have been parked outside, away from the door. Ms Clarke’s explanation, that she always parked that way, could reasonably have been rejected by the jury as an attempt to deflect her involvement.
The attack started almost immediately upon the arrival of the car. Ms Clarke’s own account puts her in the shed at the very time it was carried out. On any view it was a vicious and violent attack, causing such injuries that Mr Britza died as a result, that day. Ms Clarke’s suggestion that she was not aware of it was risible. Her account was that she entered the shed but spent the whole time (she estimated five minutes) talking to Mr Dewar, with each of them wondering what was going on. That version was not supported by Mr Dewar, and it was not put to him that Ms Clarke’s account on this point was correct. The jury could reasonably infer that her account on this point was untrue.
Mr Brad Southgate and Mr Ireland said she was in the shed, aware of and participating in the assault by verbally abusing Mr Britza, encouraging the other two men, and providing direct instructions. Mr Southgate’s evidence that Ms Clarke said “He’s had enough”, was consistent on all his accounts, and it was not put to him that he had previously said something else.
Ms Clarke’s own account is that she saw the injured Mr Britza being put in the back of the car, his head bleeding, and in a condition such that she suspected he was dead. She then drove the attackers away. Later she burned clothing left by Mr Wills in her sister’s shed.[100] She knew that those clothes were connected to the assault on Mr Britza,[101] but delayed burning them because she was “too scared to leave the house”.[102] Whilst she said that Mr Wills threatened her in various ways, he was still in contact with her, and those threats would not have prevented her from leaving the house. The jury may have thought that her reluctance to leave the house reflected her involvement in the assault.
[100]AB 679.
[101]AB 682.
[102]AB 680.
The evidence of Mr Dewar and Mr Ireland (both before and during the trial) had consistencies that may well have led the jury to accept it. Each of them said that: Ms Clarke arrived with two men; the two men were involved in the assault; the assault was violent; Mr Britza was dragged to the car; the two men left with Ms Clarke; and Mr Britza was in the back of the car.
Mr Ireland’s evidence was punctuated with frequent, expletive laden, expressions of his frustration at the questioning and its level of detail, and his anger at his perception that he was being put on trial. But he consistently said that the attackers arrived in a car which was backed up to the roller door opening,[103] he had witnessed an extremely violent attack which killed his mate, Mr Britza, and that Ms Clarke was part of it.
[103]AB 220, 271, 323, 331, 344. Notably that evidence was consistent with Ms Clarke’s own account of how the car was parked at the shed.
There were aspects of Mr Ireland’s evidence which had independent support. He described Mr Britza being hit a number of times, on the head with a bar.[104] That was consistent with the injuries described by the forensic pathologist.[105] He also said that after Mr Britza was wrapped in a tarp he was stabbed numerous times through the tarp.[106] The forensic expert evidence was that the body was in a tarp and there were holes through the tarp of a size consistent with knife holes.[107] He said that duct tape was used to tape around the tarp.[108] Duct tape was found with the tarp by the forensic experts.[109]
[104]AB 218, 219, 323, 350, 352-355, 358, 375, 399.
[105]AB 404-405, 407-408.
[106]AB 221, 357, 376-377. Mr Dewar also said he was stabbed numerous times: e.g AB 85.
[107]AB 415, 421.
[108]AB 221, 363-366.
[109]AB 414, 420.
In my view there was enough in the core consistency of Mr Ireland’s evidence that the jury could accept it.
The jury had the advantage, which this Court does not, of having seen and heard the witnesses. Of course the jury was not obliged to accept everything that a witness said. Whatever doubts one might have based on the attacks on their credit and reliability, that advantage was capable of resolving them. Adopting the test in M v The Queen, and making full allowance for the jury’s advantages, I do not consider that the doubts are such that there is a significant possibility that an innocent person has been convicted.
This ground does not succeed.
The fresh evidence.
Ms Clarke and Mr Wills were jointly charged with murder, but tried separately. After Ms Clarke’s conviction her solicitor became aware of a statement (dated after Ms Clarke’s conviction) obtained by the prosecution in respect of the trial of Mr Wills. The existence of the witness, Mr Taylor, and what he had to say, was not known to the legal advisers or Ms Clarke prior to that time. The Crown did not oppose the reception of the evidence for the purpose of determining the application, but said it added nothing relevant.
The essential features of the evidence from Mr Taylor’s statement are:
·at some time between mid 2000 and March 2001 Mr Taylor knew Mr Britza; Mr Britza said he was scared of Mr Wills and that Mr Wills wanted to bash or kill him; Mr Taylor understood the animosity was over a girl;
·on a particular day Mr Taylor was at the house of Mr Shane Hansen, along with Mr Wills, Mr Shane Hansen, Mr Matthew Hansen, and a person called Patchy;
·prior to this day Mr Taylor had been with Mr Britza on an occasion when Mr Britza bought drugs from a woman he then had sex with; Mr Britza told Mr Taylor that he had “just fucked Dean Wills’ missus”;
·later, but still prior to this day, Mr Britza had, on a few occasions, been doing burnouts outside a house occupied by Matthew Hansen and his mother, and calling out obscenities; this annoyed them;
·on the particular day:
o   Matthew Hansen had driven his white station wagon to his brother’s house;
o   Matthew Hansen told the others about Mr Britza’s burnouts; Mr Taylor said Mr Britza might be at the shed, and that Mr Britza had said the shed was a “Finks chop shop”;
o   Mr Britza’s first name was identified, and that he had particular tattoos on his back;
o   Mr Wills became very angry, saying that “I’ll sort this out”; he had a phone call with some unknown person, saying in respect of Mr Britza, “Well keep him there until I get there”;
o   Mr Wills told Mr Taylor and Matthew Hansen to leave the room, and shortly afterwards Mr Wills and Shane Hansen left in a car;
o   sometime later Shane Hansen returned, angry and telling Matthew Hansen it was “all your fault”; he got some sheets[110] and left;
o   Shane Hansen returned later, and told Matthew Hansen that “your car has got to go. We have got to burn it’; he left again, with Patchy;
o   Shane Hansen returned later again, told Mr Taylor to leave, and said “I’ve fucked up. He is gone”, and “He is gone. He is fucking gone”.
[110]This aspect would actually support some of the evidence at trial, namely that a sheet was found inside the tarp and over part of the body: AB 414. But that concerns the conduct of Mr Wills and not Ms Clarke.
I agree with Dalton J that leave should be granted to use the evidence, for the reasons given in paragraph [252] of her Honour’s reasons.
The first contention is that the evidence: shows a connection between Mr Wills and Mr Britza and gives Mr Wills a motive to harm him; identifies Mr Shane Hansen as the second male in the assault and gives a motive for him to harm Mr Britza; reveals a call by Mr Wills concerning Mr Britza; and explains the circumstances in which the two left to carry out the assault.[111]
[111]Outline, paragraph 67.
The second contention is that the evidence directly contradicts Mr Dewar’s evidence of the phone call to him, and what was said to him by Ms Clarke at the shed.[112] The comment at the shed was, “you’re lucky we got him. If we didn’t get him, it was going to be you, because he was doing drive-bys on his ex-girlfriend in Labrador in one of your cars”.
[112]Outline, paragraph 68.
In my view these contentions cannot be sustained.
As to the first contention, and accepting it to be so, the difficulty confronting the ground relying on fresh evidence is that the extra evidence relevantly concentrates on events at a house and focuses on the conduct of Mr Wills and Mr Shane Hansen. It does not shed light on the role of Ms Clarke, nor provide any exculpatory evidence as to her participation.
As to the second contention, Mr Dewar’s evidence did not give a specific time for the call, and the fact that Mr Wills was asking someone else to “keep [Mr Britza] there” does not negate that Ms Clarke could have made the call to Mr Dewar. She may have made the call and then, independently of that, Mr Wills got the information at the house.

Ms Clarke’s contentions misconstrue the comment to Mr Dewar at the shed, in that it is suggested to indicate the Mr Dewar was lucky because he was identified as doing the drive-bys. It did not say that, but rather that Mr Britza was doing the drive-bys but in one of Mr Dewar’s cars. In any event that evidence was the subject of previous inconsistent statements by Mr Dewar, including that it was said after the event, and perhaps not even by Ms Clarke. Acceptance of Mr Dewar on that point was not necessary to convict.
Whilst the evidence of Mr Taylor does not refer to Ms Clarke, it does not detract from the evidence of the other witnesses as to her participation in the events. On that account it was still open that Mr Wills and Shane Hansen drove to where Ms Clarke was, and then she drove the car to the shed.
It does not run counter to her own statement that she drove the station wagon to the shed at Mr Wills’ request, that she was in the shed when the assault took place, and that she drove the car away with Mr Britza tied up in the back. More particularly it does not counter the evidence of the other witnesses as to what she said and did at the shed.
Finally, even if it gives a motive for either Mr Wills or Mr Shane Hansen, that has little to do with Ms Clarke. In her case the prosecution did not have to prove motive, and did not set out to do so.
I am unable to conclude that, had the jury been given that evidence, there is a significant possibility they would have put it together with all the other evidence, and acquitted. I do not consider that there has been a miscarriage of justice by the non-receipt of that evidence at trial.
Conclusion and disposition.
For the reasons above I would allow the application to adduce fresh evidence but dismiss the appeal. I agree with the orders proposed by Dalton J.
DALTON J: The appellant pled not guilty to the murder of Darren John Britza on the first day of a trial beginning 14 May 2014. She was charged only with murder. There was no alternative charge of being an accessory after the fact. The Crown relied upon ss 7 and 8 of the Criminal Code to prove that she was liable as an accessory to the murder.
This is an appeal against conviction. The original ground of appeal was that the verdict of the jury should be set aside as unreasonable on the basis that it could not be supported having regard to the evidence. Leave was given at the hearing of the matter for a second ground to be added. The second ground is that there was a miscarriage of justice by reason of the fact that fresh evidence from a witness, Taylor, was now available.
Ground 1 – Unreasonable Verdict
There was agreement that the relevant principles are set out in M v The Queen:[113]
“… [T]he question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses.
…
If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.”
[113](1994) 181 CLR 487, 493-495 (citations omitted).
Factual Basis of the Case before the Jury
Britza’s skeleton was found by fishermen under the Canungra Creek Bridge on 2 March 2008. There had been extensive flooding in the area in January 2008 which had washed it out of a shallow grave. It was wrapped in a blue tarpaulin.
Investigations revealed that Britza had been involved with people who operated a drug operation from an industrial shed at Southport, which police had been independently investigating (for drugs) in 2001. From the evidence in the drug investigation it was revealed that at 12.15 pm on 23 March 2001 there had been a phone call made from the shed to a mobile phone associated with Britza and that that was the last call to or from the phone. The SIM card for that phone was found with Britza’s remains, apparently in his jeans’ pocket. It was admitted at the trial that Britza received injuries from which he died at the industrial shed on 23 March 2001, and that a white Holden Commodore station wagon was found alight on 24 March 2001, near a road which connected the area of Canungra Creek Bridge to the Gold Coast. The drug operation at the Southport shed was conducted by a man named Dewar. The station wagon was registered in the name of Shane Hansen, who was associated with a man named Wills.
Telephone Intercepts
After the discovery of Britza’s body, police put an intercept on Wills’ telephone and the appellant’s telephone. They then made statements to the media, appealing for assistance in relation to the discovery of the body. The appeal was broadcast on 30 October 2009. On that day the appellant spoke to Wills saying, in a short telephone call, that “lotsa stuff I can’t talk about” had happened. She said, “Mate I can’t talk to you about it on the phone, watch the fuckin’ news”. In answer to enquiries as to what the matter was, she said, “I don’t even wanna speak about it, I’m gonna vomit. Does that give you a hint? – Pause – Does it?” Wills replied, “Mm yeah.” Wills rang back about five minutes later asking, “Is it something that I have to worry about?” to which the appellant said, “Yeah”. In a third conversation the appellant said she would not be back in contact until after the five o’clock news because, “there’s more stuff on TV’s comin’ on I might ~~not~~[114] wanna have a look at” and saying that, “… as soon as I’ve seen what I wanna see, if it comes on I’ll – Pause – go somewhere – Pause – give ya a call.” About half an hour later Wills and the appellant made an arrangement to meet. There was no evidence that they did meet, and it seems from subsequent telephone calls that they did not meet pursuant to that arrangement.
[114]Corrected in accordance with t 1-46.
At 8.51 pm that night, the appellant’s sister rang the appellant to say that the police had been questioning her (the sister) about the appellant and Wills. The sister asked the appellant whether she had seen the news and the appellant said no. Her sister said that they found a body, and that the police were questioning people and doing forensic tests at “some garage in Southport”. Her sister said the purpose of the call was to give the appellant “the heads up”.
About half an hour later Wills rang the appellant from a public phone and the appellant warned him that the police went to her sister’s looking for “us”. She said she had been driving about looking for him and trying to call him. She again tried to make arrangements to meet him somewhere to speak because “it is fuckin’ important”.
The next morning the appellant’s sister rang her again to say, “They know it was [Wills] and they know you’re involved they’ve got witnesses.” Her sister warns the appellant that the police will be coming to talk to her. She says, “The front page of the Bulletin this morning”. The appellant says, “Who what does it say his name?” and the answer is, “Yeah it’s got his picture, everything.” The appellant enquires, “[Wills]?” and her sister says, “No, not [Wills].” After that call the appellant rings Wills and tells him to get a paper, and that afternoon Wills rings her back. This time he wishes to speak to her but she is disinclined to make a time. Three hours later he rings again to make an arrangement to meet with her the next day. There is another similar call in the early hours of the next morning; then again at 11.35 am the next day, and again at 1.30 pm the next day. It seems that in this last conversation they do make an arrangement to meet, but there was no evidence of such a meeting or what was said at it.
At 3.11 pm that day the appellant’s daughter rings her to alert her that the appellant’s sister has been spoken to by the police “all morning” and that enquiries have been made about Wills. Then shortly afterwards, the appellant’s sister rings her and says that she has been at the police all morning and that “it’s full on”, and involved Wills and the appellant. The police have told the appellant’s sister that the police have witnesses that put the appellant at the scene. Her sister tells the appellant that the police were “telling me that they’ve got him, pretty much”. They discuss whether the appellant’s daughter knows that the appellant was with her on the relevant night and the difficulty they have because the police do not yet allege what night was the relevant night. Her sister tells the appellant, “Well you’d be amazed what how much they know … I think they’re leaving like [Wills] and you and whoever are these other main people until last.” Her sister says to the appellant, presumably of Wills, “They know that he’s been violent to you”.
Three days later the appellant’s sister rings her to say that she has seen on the Channel 9 news that “Ray’s[115] been charged”. The sisters discuss why it is the police have not been to see the appellant, as they have in past conversations. Three-quarters of an hour later the appellant’s sister rings her again to say that the appellant’s daughter has told the police that someone, apparently Wills, once threatened the appellant that she would “be under the bridge too” and that the police say that the appellant’s daughter had told them that Wills had come to her garage and taken black plastic.
[115]The use of the name Ray is not explained, but could only refer to Wills.
On 5 November Wills’ sister and mother telephone the appellant to say, “They got [Wills] for that murder eight and a half years ago”.
Appellant’s Statements to the Police
On 5 November 2009 police attended at the appellant’s workplace at Brighton and recorded her interaction with them as they travelled to the Logan Police Station. She told them she had known Wills since school. He had at one stage been romantically involved with her, but he had become violent and controlling. Notwithstanding the terms of a DVO, she still had contact with him and he still attempted to control her behaviour.
The appellant participated in a formal interview. She told police that in early 2001 she drove a white station wagon to a shed (the industrial shed in Southport), and drove the vehicle away from the shed at a time when she believed there was a person in the back of the car who she thought was alive. She said she got out at a service station on the highway. At the time she was in a relationship with Wills.
At the shed she had a conversation about drugs with a man named Paul,[116] who she had known for a few years. Both she and Dewar were drug users and she sometimes bought drugs from him. The circumstances were that Wills came and sought her out, picked her up in the car and asked her to drive because “we had to do something”. She did not know why Wills wished her to drive to the shed. She assumed it was because he was going to “hassle” Dewar because he had found out that Dewar sold the appellant drugs. At that time Wills was trying to stop the appellant using drugs.
[116]This is Paul Dewar who leased the shed and gave evidence, see below.
The appellant said that she reversed the rear of the car up to the roller door of the industrial shed so that she would be able to leave more easily – AB 621. When questioned further as to why she reversed the back of the station wagon to the roller door she said that she reversed in everywhere she went – AB 622.
The appellant said she got out of the car and went to speak to Dewar “in the corner of the shed”. She said there were a handful of people in the shed, and cars and tools, et cetera. She thought she and Dewar were standing near a car which was parked towards the back of the shed – AB 622-623. She thought there were about four to six other men in the shed of about her age.
Wills got out of the car too. She said she did not know what Wills did but “next thing I know someone’s getting put in the back of the car and we’re going” – AB 626. She said she did not really hear anything happening and then added, unprompted, that she did not hear any arguments or men yelling at each other or anything like that – AB 626. But, she said, it was an industrial shed and noisy.
She said they were only at the shed for about five minutes before she saw Wills “getting in the car telling me to hurry up” – AB 628. She said he was “getting that bloke in the car and then he got in the car and told me to get in the car and let’s go” – AB 628. She did not know who the bloke was. She believed he was alive but did not know if he was conscious and described him as “lying down” – AB 629. She saw Wills put the bloke on a blue tarpaulin which was in the back of the station wagon. She said she was very scared – AB 630. She thought the bloke’s face was bleeding. She thought the blood was coming from the side of his face. She expressed some uneasiness at giving measurements, but thought that there was a group of men 10 metres away from Wills when he was putting the bloke in the back of the car. She also said she was about five metres away from the back of the car at the time she was talking to Dewar, but she had her back to the car – AB 632-633.
She said she drove until she got to the BP service station at Oxenford. She thought she was probably upset and she thought Wills was probably telling her to calm down but she could not remember. Wills did not ask her to pull in at the service station. She did it of her own accord and said to him that she was not driving the car any more – she was out of there – AB 637. She said she parted company from Wills there and walked to her sister’s house.
Between leaving the shed and getting out at the service station, neither she nor Wills checked on the man in the back of the car. When asked about this she said, “I’d like to believe he was alive” – AB 637. She did not know. She did not want to think about it. Later in the interview she said that she suspected he was dead “of course” – AB 683. She was upset, crying and scared.
Wills arrived at her sister’s house later that night in a different car. They did not speak about what had happened. She had never spoken to him about it since – AB 640. Wills told her that, “I hadn’t seen anything” – AB 640. She had no knowledge of what happened to the car after she got out at the service station at Oxenford – AB 660. It was not Wills’ normal car but she did not know whose car it was. She then moved to stay with her mother, got off drugs, and moved to Brighton and tried not to associate with anyone from her past life – AB 641.
The appellant understated the contact she had had with her sister since the media coverage began on 30 October 2009 and denied that she understood the media coverage related to the murder of Britza. She denied speaking to Wills at all about the murder and then almost immediately said that she had warned him that the police were asking questions. She said she had not seen Wills since a couple of weeks ago when she had an interaction with him about a dog, possibly at the end of September or the middle of October. She had not seen him since the media coverage of Britza’s murder.
When confronted with information from the police, the appellant told police that she knew there was another person called Shane at the shed and said that she had never seen him before that day. She said he was in the car when Wills came to pick her up to drive him to the shed – AB 673. She said that she did not mention Shane before because she did not know him; she had not thought about it ever since, and she did not want to bring it up – AB 678.
She told police she had no idea why Britza was killed. She did not know him and had never had a conversation with him and she did not “touch him or hurt him or do anything to him” – AB 678.
Police ask the appellant whether she burnt any clothing after the incident. She said that she took a bag of clothes which was left in her sister’s shed and burnt it because she was told to and she was terrified that she would get into “big trouble” if she did not. She said this occurred “ages” after the incident but then, when reminded that she said she had gone down to stay with her mother soon afterwards, she said that it may have occurred “a few weeks” afterwards, and then that she did not really know – AB 679‑680. She then said she saw the bag of clothes the day after the incident and that Wills told her to burn them on the day of the incident – AB 680. She took the black plastic bag of clothes down to the beach with some petrol and burnt it at the beachfront. Earlier in the interview she had denied that Wills had given her any clothing or anything linked to the beating to dispose of – AB 640.
Dewar’s Evidence
Paul Dewar rented the industrial shed at Southport. The shed had an office. There was also a waiting area outside the office proper, which was partitioned off from the rest of the shed. He conducted a panel-beating business, as well as a drug dealing business, there. Dewar gave evidence pursuant to an undertaking that his answers could not be used against him. His evidence was that the appellant attended the shed two or three times a week off and on to buy drugs, as did Britza. Prior to his death he thought Britza attended the shed every day. Also regularly visiting the shed at that time were Matthew Ireland and Christopher Warren.
Dewar was present at his shed when Britza was murdered. Prior to that he had received a phone call from the appellant asking whether Britza was at the shed. He was not. She had asked him to let her know when Britza came in. He had said he would – AB 82. She told him that she needed to know, “cause we have to sort some shit out with him or something along those lines”. He denied that he had arranged to have Britza attend at the shed – AB 137.
On the day of the murder the appellant drove a white Commodore station wagon very fast up the driveway to the shed and parked so that the back of the car was through the open roller door and in the shed. The tailgate was up. Very soon after that, there was loud yelling, screaming, punching and banging for about 30 seconds. Dewar recalls somebody repeatedly saying, “You’re fucked”. In answer to the question whether that was a male or female voice he said, “I couldn’t tell you on that one. I’d be guessing by saying male, but most probably a male voice. Yes.” – AB 84. He heard Britza screaming. When the screaming stopped two men came out from behind a wall, dragging Britza by his feet through the centre of the workshop. He said Britza’s face was “pretty well unrecognisable”. He said he was breathing or “snoring”. Britza was dragged past him. He recognised Wills as one of the men dragging Britza but did not recognise the other man. Britza was making “loud snores, gurgling”.
The men removed a blue tarpaulin from the car and put Britza on it. They “started beating him again … kicking him in the head. Punching him. I do recall one of them had a knife. He was stabbing him repeatedly.” – AB 85. He thought that the men taped Britza’s hands and then taped his whole body up in the tarpaulin using the duct tape. He walked out of the shed and saw the appellant standing by the Commodore. He said to her, “What the fuck?” and she replied to the effect that, “You’re lucky we got him. If we didn’t get him, it was going to be you because he was doing drive-bys on his ex‑girlfriend in Labrador in one of your cars.” – AB 86. Dewar saw the car leave. Britza was not in the shed after it left. Those remaining in the shed began cleaning up the blood on the wall and the large puddle of blood near the roller door where they put him in the car – AB 86-87. He never saw Britza again.

The jury was entitled to conclude that the appellant was not fully co-operative with the police and did not reveal all she knew: that there were two men in the car; that she helped dispose of a bag of what she thought were clothes and that she was in contact with Britza and other people about the press coverage of the murder investigation. They were entitled to doubt her credit and come to conclusions to the contrary of exculpatory statements she made to the police.
There is no doubt that the jury had to be careful with evidence given by Dewar. He was a heavy drug user at the relevant time and admitted it affected both his perception and processing of reality and his memory. He seemed from his answers to have a poor memory. He was at times abusive, non-co-operative and non‑responsive in cross‑examination. He was a drug dealer. He had convictions for offences of dishonesty; grievous bodily harm, and other offences. He gave evidence pursuant to an undertaking that answers given by him would not be used against him. The jury were warned about all these things. It was proper that they scrutinise his evidence carefully, but it was not necessary that they reject it in its entirety.
Much of Dewar’s account of the physical circumstances of the beating was consistent with other evidence. He described the car arriving at the shed and reversing into the roller door – AB 83. He described one female and two male occupants who all entered the shed. He described an immediate and severe beating. All of that was consistent with what the appellant told police. Dewar described hearing the victim screaming during the beating. He described the victim’s face after the beating as “unrecognisable”. He described hearing the victim snoring or gurgling at the time he was on the floor at the back of the station wagon. All of that evidence was consistent with the medical evidence in the case.
As part of his evidence relating to the arrival of the car at the shed, Dewar said that the station wagon was parked so that the tailgate was open and inside the shed – AB 83. This description was given as part of Dewar’s evidence of the arrival of the car at the shed and the beating and circumstances up until the time Britza was dragged into the shed proper at the back of the station wagon. As described, the jury may well have thought that Dewar’s evidence about those topics generally was consistent with other evidence which they accepted. The evidence was consistent with evidence which both the Southgate brothers gave. In those circumstances, it was open to the jury to accept that part of Dewar’s evidence, including as to the way the appellant positioned the station wagon in relation to the roller door.
As to the second part of the beating – in the shed proper – Dewar gave evidence that there was a blue tarpaulin involved. That was consistent with the appellant’s own version to the police. Dewar gave evidence that duct tape was used to bind Britza’s hands and to wrap the tarpaulin. The evidence from the scientific officer, that there was a clump of duct tape inside the tarpaulin with Britza’s body, is consistent with that detail. Dewar gave evidence of more assaulting and beating of Britza at the back of the station wagon. The Southgate brothers also gave evidence of that, and the jury may well have accepted that evidence. Dewar was the only witness who described a knife being used. The jury may well have thought his descriptions of its use were extravagant and that they received little support from the scientific evidence as to the state of the blue tarpaulin. That was no reason to reject other parts of Dewar’s evidence which did seem reliable.
There were three conversations which Dewar said he had with the appellant, all of which were capable of inculpating her.
(a)First, that before the beating, the appellant rang the shed wanting to know if Britza was there and asking him to let her know when he came in, because she wanted to sort something out with him. This was not mentioned in Dewar’s first two statements, but was mentioned in the third, which was given before he was granted indemnity from prosecution. He gave inconsistent versions before the CMC, committal and jury as to this conversation. The inconsistencies were as to the content of the information and as to whether the information came from the appellant. In my view the jury could not have had confidence in his evidence as to this conversation. I cannot see the jury could have safely acted on his evidence of this conversation.
(b)The second conversation concerned the motive for the murder – drive-bys on Britza’s ex-girlfriend. It was one about which Dewar’s evidence seemed particularly unreliable. He gave no version of it in his first two statements. Then he gave versions in both the CMC enquiry and committal which were inconsistent with each other, and the version he gave in front of the jury. There were significant inconsistencies both as to the timing of that conversation and whether the conversation involved the appellant at all. I cannot see that the jury could have safely acted on his evidence of this conversation.
(c)Lastly, Dewar said that the appellant had told him after the event to keep his mouth shut or he would be next. His evidence as to this was rather general. He had given a version at committal which was different, in that it did not involve the appellant threatening that he would be next. The jury would rightly have been cautious about this evidence, but I cannot see that they were bound to reject it: it was a matter for them to consider.
Dewar’s evidence was significant in one other respect: he did not support the version the appellant gave the police – that when she arrived at the shed she went straight to Dewar and spent the entire time speaking to him until she drove away. It was not put to Dewar that this is what the appellant did. It was merely put to him that he failed to notice her in the shed because he was so distracted by Britza being beaten. The jury was entitled to draw an inference from this that the appellant’s version to police as to what she did when she arrived at the shed was not true.
The jury was warned by the trial judge to take care with Bradley Southgate’s evidence. He had a drug habit at the time of the events in question. He accepted that in general terms drug use could at times affect his perception of reality and his memory. He admitted that he had once asked Britza to slash someone’s tyres for reward. He did give evidence of matters which were incontrovertibly incorrect. Most notably, he gave the time of the beating as dusk, when it occurred in the middle of the day. Either he or his brother Paul was mistaken as to the details of whether they were working under the bonnet of a car, or on a bench, and whether they left immediately after the beating or continued working. Given the time lapse between the events and the time they gave evidence, perhaps these were not matters of great consequence and they were not matters of detail as to the actual offending.
Bradley Southgate said that after the station wagon pulled up at the roller door, two men and one woman got out of it. His evidence was that there was the cracking noise of someone being flogged and a commotion and the screaming of someone being beaten. Given the appellant’s own version of events and the medical evidence, the jury might have thought all of that was reliable. His evidence was that there was an immediate assault after the arrival of the car and again that is consistent with the appellant’s own version of events. Bradley Southgate said that he could hear Britza struggling to breathe during the time he was on the floor of the shed behind the station wagon. The jury might well have thought that reliable, given Dr Ong’s evidence.
The jury was entitled to accept that Bradley Southgate’s evidence was that the station wagon was half in, and half out, of the shed, at the roller door, with its tailgate up – AB 186-187. This was consistent with what Dewar said. It was part of a version of events which the jury might otherwise have thought reliable, as just discussed.
Bradley Southgate gave evidence that the female accompanied the two men to the office and that she was “right there” within a metre or two of the further beating in the shed proper. There was no reason why, allowing for proper scrutiny, the jury might not have acted on that evidence.
Southgate’s evidence was that the female made a joke of Britza’s nose being caved in during the beating behind the station wagon. The jury was entitled to conclude from Dr Ong’s evidence that at some point Britza’s nose might have looked caved in. Southgate said the female was “going off” through the time of the beating behind the station wagon and that she said, during that beating, “He’s had enough”. Again, allowing for proper scrutiny, there is no reason why the jury might not have accepted that evidence. That it is inconsistent with Dewar’s not having seen the appellant, and with the appellant’s account to police, was not a bar to the jury preferring this evidence and acting on it.
Paul Southgate was not able to give much evidence as to what went on and he, like the other witnesses who were at the shed, had a drug habit at the time. Nonetheless, he did give the rather graphic description of Britza gurgling like a fish out of water which, given Dr Ong’s evidence, the jury may well have thought reliable. He gave evidence that the station wagon was parked with the tailgate up, though he put it outside the shed, not partly inside the shed – AB 201.
His evidence was also that he did not hear or see a female at the shed. Even on the appellant’s version of events, he was mistaken as to this. Either he or his brother were mistaken as to where they were working and whether they stayed or continued working after the assault. He, like his brother, was mistaken thinking that the assault occurred at night.
In my view, none of the evidence given by Ireland could have been accepted as reliable by the jury unless it was exactly in terms of other evidence which they regarded as reliable. It could have added nothing reliable to their deliberations.
From Dr Ong’s evidence the jury knew that severe force had been applied to Britza’s face, shattering his upper jaw, as well as the bones around his nose, eyes and his cheekbones into small pieces, and that he would have suffered breathing difficulties as a consequence of those injuries.
In addition to the admissions made in the appellant’s record-of-interview, the jury had the evidence of Bradley Southgate and Dewar as to the position of the station wagon when it was parked by the appellant. As well, the jury was entitled to accept Bradley Southgate’s evidence as to the appellant’s being with the two men who assaulted Britza in the waiting area and screaming abuse at Britza as part of that event. The jury was entitled to accept Bradley Southgate’s evidence that the appellant was closely proximate to Britza being dragged to the middle of the shed near the back of the station wagon. The jury was entitled to believe Bradley Southgate’s evidence that the appellant was “going off” during the further beating at this part of the shed; that she remarked upon the state of his nose in a cruel or joking way as part of this, and that she said that Britza had had enough at some point.
On that evidence it was in my view open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of murder, pursuant to either s 7 or s 8 of the Criminal Code.
Ground 2 – Fresh Evidence
The appellant was convicted and sentenced on 26 May 2014. After that time a statement was obtained from a witness, Taylor, in relation to the prosecution of a person alleged to be the appellant’s co-offender. It is dated 9 June 2014. It was not reasonably available to the appellant at the time of trial and it is obviously relevant. Had it been available at the time of the appellant’s trial, my view is that the prosecution would have been obliged to call Taylor at her trial. In those circumstances, my view is that leave ought to be given to the appellant to rely on the fresh evidence in the prosecution of her appeal.
In Taylor’s statement he describes that he is a tattoo artist. When he was about 18 he lived with Britza in a share house on the Gold Coast, which he describes as “your typical party house”. Britza used a lot of drugs. Taylor just used drugs socially. Nobody associated with the house worked, they would “just party all the time”. Britza told Taylor that a man named Dean Wills wished to kill him (Britza). Taylor never really knew the details but knew it was something to do with a girl. At that time Britza was in a relationship with a girl known as Pepsi. She was a junkie. Taylor knew that Britza fenced a lot of stolen property and bought a lot of drugs from the industrial shed at Southport.
Once Taylor went with Britza to a townhouse in Labrador. He thought they were there to buy drugs. As it transpired, there was a woman in the townhouse. Britza had sex with her. Afterwards he said to Taylor, “Definitely don’t tell anyone about that because I just fucked Dean Wills’s missus.”
Taylor was also friends with Matt Hansen. He had a brother named Shane. They lived together with their mother at Labrador. When Taylor was with the Hansen brothers he met Wills. Matt Hansen began having a sexual relationship with Pepsi, even though she was still in the relationship with Britza. One night Taylor was with Matt Hansen and they came across Britza. Britza ran off. Matt Hansen chased after him. After that Matt Hansen came running back and said that Britza had pulled a gun on him. Britza did “burn-outs” in front of the Hansens’ house. While doing burn-outs Britza would yell obscenities out the car window. This made Matt Hansen “and his mum very very pissed off”.
At some point Shane Hansen owned a white Commodore station wagon. Then he swapped it and Matt Hansen owned the car. One day Taylor and Matt Hansen drove the white Commodore to Shane Hansen’s house. (By this stage Shane Hansen had moved out of home and was living with a prostitute at Parkwood.) They had some LSD. Then they sat in the garage and smoked a few cones. Then Wills turned up. The Hansen brothers complained about Britza doing “the drive-bys and stuff, outside their mum’s house”. It appears from his statement that Taylor used the expression “drive-bys” to mean the same as “burn-outs”. Wills asked some questions to identify Britza and, in Taylor’s opinion, then became angry and aggressive. He started questioning where the industrial shed was, as there had been some talk that Britza was to be found at the shed. Wills said something to the effect that he would sort it out. Wills made a phone call on his mobile phone. Taylor heard Wills say, “Does a guy name Darren come there?” and “Well keep him there until I get there.”
At this point it seemed to Taylor that Wills and Shane Hansen were getting very angry and aggressive. They told him and Matt Hansen to leave the room. Later Taylor saw Wills and Shane Hansen leave the house. He did not recall which car they left in. He stayed there “just chilling” until “day became night” and Shane Hansen returned to the house very anxious, angry and scared. He demanded some sheets from the woman he lived with, took a bundle of folded sheets from her and “stormed out the door in a hurry”. Shane Hansen returned and said, inter alia, “Matt, your car has got to go. We have to burn it.” Matt Hansen objected but he was told, “It’s got to be done”. A while later Shane Hansen returned to the house and told Taylor to leave. Taylor did so. As he was leaving he heard Shane Hansen say to Matt Hansen, “I fucked up. He is gone.”
It was argued by the appellant that the evidence at [256] above, cast doubt on Dewar’s evidence summarised at [239(a)] above, ie, that at some time before the beating at the industrial shed it was the appellant who rang up enquiring whether Britza was at the shed and to let her know if he turned up. Further, it was submitted that the evidence was inconsistent with Dewar’s claim that the appellant told him he was lucky he had not been assaulted because the person doing drive-bys at an ex-girlfriend’s place had been using his car.
It was submitted that the case against the appellant was a marginal one, and that Taylor’s evidence could have caused the jury to reject, not just those parts of Dewar’s evidence about his conversation with the appellant, but all of his evidence. The appellant argued that there was a real prospect that the jury had accepted some of the evidence of Dewar or Bradley Southgate. No-one knew what evidence the jury did accept, so that in circumstances where there was not an abundance of evidence against the appellant, there must be a real possibility that the jury had acted on the evidence of Dewar, whereas, had they had Taylor’s evidence, they might not have and instead might have acquitted.
In R v Katsidis; ex parte A-G (Qld)[118] the President of this Court said:
“Where an appellant in a criminal appeal relies on fresh evidence, the test is whether the appellant has established that there is a significant possibility (or that it is likely) that, in the light of all the admissible evidence, including the evidence at trial, a jury acting reasonably would have acquitted the appellant: Gallagher v The Queen and Mickelberg v The Queen. …
…
In determining an appeal which turns on new or further evidence there are strictly two questions: first, whether the court should receive the evidence and second, whether that evidence, if received, when combined with the evidence at trial requires that the conviction be set aside to avoid a miscarriage of justice. …” (footnotes omitted).
[118][2005] QCA 229, [3], [4].
Jerrard JA in that case said:
“… When considering fresh evidence in Mickelberg v The Queen (1989) 167 CLR 259, at 301, Toohey and Gaudron JJ wrote that in essence, fresh evidence must be such that, when viewed in combination with the evidence at trial, it can be said that the jury would have been likely to entertain a reasonable doubt about the guilt of the accused if all the evidence had been before it, or that there is a significant possibility that the jury, acting reasonably, would have acquitted the accused. The latter formulation was expressly adopted by Mason CJ in that case, at CLR 273, on the ground four of the five judges in Gallagher v The Queen had endorsed it. It is the test commonly applied to fresh evidence in this State. In R v Main (1999) 105 A Crim R 412 at 416, McMurdo P wrote that the principal question for consideration was whether there was a significant possibility (or whether it was likely that) a reasonable jury would have acquitted the petitioner if the fresh evidence had been before it at the trial, so that a ‘miscarriage of justice’, within the meaning of those words in s 668E(1) of the Criminal Code, had resulted.” – [18].
The evidence which Taylor could have given was capable of throwing doubt on Dewar’s evidence as to his receiving a telephone call from the appellant, enquiring whether Britza was at the shed, and asking to be informed if he was. As already explained, that evidence was in any event unreliable. I am not convinced that the evidence which Taylor might have given only cast doubt on Dewar’s story that the appellant explained the motive of the killing to him. In fact it was capable of corroborating that “drive-bys” might have been the motive, although the details of the appellant’s version (according to Dewar) were different to the details of Taylor’s version. But, in any event, as already explained, Dewar’s evidence as to that conversation was unreliable.
Taylor’s account gave the jury more reason to doubt two parts of Dewar’s evidence which were so unreliable that the jury could not safely have acted upon them, even without Taylor’s evidence. I do not see a significant possibility that Taylor’s account would incline a jury to reject other parts of Dewar’s evidence if they were otherwise prepared to accept them. As explained above, his description of the physical circumstances of the arrival of the station wagon at the shed, and the first part of the beating had much in common with other evidence in the case. In any event, the jury had evidence from Bradley Southgate which it was open to them to accept. For those reasons, I do not see that the evidence which Taylor could give raises a significant possibility that a jury acting reasonably would have acquitted this appellant. I do not consider that there has been any miscarriage of justice.
Orders

I would make the following orders: (a) allow the application to amend the notice of appeal; (b) allow the application for leave to adduce evidence; (c) dismiss the appeal.

Details

AGLC: R v Clarke [2015] QCA 71
Case: [2015] QCA 71
Decision Date: 1 May 2015

CaseChat Overview and Summary

In the case of R v Clarke, the appellant was convicted of murder and appealed against her conviction, arguing that the jury's verdict was unreasonable or insupportable by the evidence. The appeal also challenged the admissibility of new evidence that emerged after the trial, which the appellant claimed constituted a miscarriage of justice. The case involved a complex web of witness testimonies, including inconsistencies and new evidence that was not disclosed before the trial. The court examined whether the new evidence, which was disclosed by the prosecution after the trial, could be considered "fresh" and whether its admission would lead to a miscarriage of justice.

The court assessed the reliability and impact of the new evidence, which included statements from a witness named Taylor. This evidence suggested a motive for the crime and implicated other individuals besides the appellant. The court needed to determine whether the new evidence was significant enough to potentially acquit the appellant if the jury had been privy to it during the original trial. The court also considered whether the failure to disclose this evidence before the trial was prejudicial and whether it substantially affected the fairness of the trial.

The court concluded that while the new evidence provided some context and potential motives, it did not sufficiently undermine the original jury's verdict. The evidence did not establish a significant possibility that the appellant was innocent, nor did it indicate that the verdict was unsafe. Consequently, the court decided that the new evidence, although relevant, did not warrant setting aside the conviction. The appeal was dismissed, and the court allowed the application to amend the notice of appeal and to adduce evidence but ultimately upheld the conviction.

ORDERS:
1. Allow the application to amend the notice of appeal.
2. Allow the application for leave to adduce evidence.
3. Dismiss the appeal.

Orders

Orders of the court

1. Allow the application to amend the notice of appeal.

2. Allow the application for leave to adduce evidence.

3. Dismiss the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

This ground does not succeed.The fresh evidence. Ms Clarke and Mr Wills were jointly charged with murder, but tried separately. After Ms Clarke’s conviction her solicitor became aware of a statement (dated after Ms Clarke’s conviction) obtained by the prosecution in respect of the trial of Mr Wills. The existence of the witness, Mr Taylor, and what he had to say, was not known to the legal advisers or Ms Clarke prior to that time. The Crown did not oppose the reception of the evidence for the purpose of determining the application, but said it added nothing relevant. The essential features of the evidence from Mr Taylor’s statement are:·at some time between mid 2000 and March 2001 Mr Taylor knew Mr Britza; Mr Britza said he was scared of Mr Wills and that Mr Wills wanted to bash or kill him; Mr Taylor understood the animosity was over a girl;·on a particular day Mr Taylor was at the house of Mr Shane Hansen, along with Mr Wills, Mr Shane Hansen, Mr Matthew Hansen, and a person called Patchy;·prior to this day Mr Taylor had been with Mr Britza on an occasion when Mr Britza bought drugs from a woman he then had sex with; Mr Britza told Mr Taylor that he had “just fucked Dean Wills’ missus”;·later, but still prior to this day, Mr Britza had, on a few occasions, been doing burnouts outside a house occupied by Matthew Hansen and his mother, and calling out obscenities; this annoyed them;·on the particular day:o Matthew Hansen had driven his white station wagon to his brother’s house;o Matthew Hansen told the others about Mr Britza’s burnouts; Mr Taylor said Mr Britza might be at the shed, and that Mr Britza had said the shed was a “Finks chop shop”;o Mr Britza’s first name was identified, and that he had particular tattoos on his back;o Mr Wills became very angry, saying that “I’ll sort this out”; he had a phone call with some unknown person, saying in respect of Mr Britza, “Well keep him there until I get there”;o Mr Wills told Mr Taylor and Matthew Hansen to leave the room, and shortly afterwards Mr Wills and Shane Hansen left in a car;o sometime later Shane Hansen returned, angry and telling Matthew Hansen it was “all your fault”; he got some sheets[110] and left;o Shane Hansen returned later, and told Matthew Hansen that “your car has got to go. We have got to burn it’; he left again, with Patchy;o Shane Hansen returned later again, told Mr Taylor to leave, and said “I’ve fucked up. He is gone”, and “He is gone. He is fucking gone”.[110]This aspect would actually support some of the evidence at trial, namely that a sheet was found inside the tarp and over part of the body: AB 414. But that concerns the conduct of Mr Wills and not Ms Clarke. I agree with Dalton J that leave should be granted to use the evidence, for the reasons given in paragraph [252] of her Honour’s reasons. The first contention is that the evidence: shows a connection between Mr Wills and Mr Britza and gives Mr Wills a motive to harm him; identifies Mr Shane Hansen as the second male in the assault and gives a motive for him to harm Mr Britza; reveals a call by Mr Wills concerning Mr Britza; and explains the circumstances in which the two left to carry out the assault.[111][111]Outline, paragraph 67.

Decision

Reasons for decision

I am unable to conclude that, had the jury been given that evidence, there is a significant possibility they would have put it together with all the other evidence, and acquitted. I do not consider that there has been a miscarriage of justice by the non-receipt of that evidence at trial.Conclusion and disposition. For the reasons above I would allow the application to adduce fresh evidence but dismiss the appeal. I agree with the orders proposed by Dalton J. DALTON J: The appellant pled not guilty to the murder of Darren John Britza on the first day of a trial beginning 14 May 2014. She was charged only with murder. There was no alternative charge of being an accessory after the fact. The Crown relied upon ss 7 and 8 of the Criminal Code to prove that she was liable as an accessory to the murder. This is an appeal against conviction. The original ground of appeal was that the verdict of the jury should be set aside as unreasonable on the basis that it could not be supported having regard to the evidence. Leave was given at the hearing of the matter for a second ground to be added. The second ground is that there was a miscarriage of justice by reason of the fact that fresh evidence from a witness, Taylor, was now available.Ground 1 – Unreasonable Verdict There was agreement that the relevant principles are set out in M v The Queen:[113]“… [T]he question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses.…If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.”[113](1994) 181 CLR 487, 493-495 (citations omitted).Factual Basis of the Case before the Jury Britza’s skeleton was found by fishermen under the Canungra Creek Bridge on 2 March 2008. There had been extensive flooding in the area in January 2008 which had washed it out of a shallow grave. It was wrapped in a blue tarpaulin. Investigations revealed that Britza had been involved with people who operated a drug operation from an industrial shed at Southport, which police had been independently investigating (for drugs) in 2001. From the evidence in the drug investigation it was revealed that at 12.15 pm on 23 March 2001 there had been a phone call made from the shed to a mobile phone associated with Britza and that that was the last call to or from the phone. The SIM card for that phone was found with Britza’s remains, apparently in his jeans’ pocket. It was admitted at the trial that Britza received injuries from which he died at the industrial shed on 23 March 2001, and that a white Holden Commodore station wagon was found alight on 24 March 2001, near a road which connected the area of Canungra Creek Bridge to the Gold Coast. The drug operation at the Southport shed was conducted by a man named Dewar. The station wagon was registered in the name of Shane Hansen, who was associated with a man named Wills.Telephone Intercepts

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Clarke [2015] QCA 71
PARTIES:	R v CLARKE, Jade Maree (appellant)
FILE NO/S:	CA No 131 of 2014 SC No 38 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	1 May 2015
DELIVERED AT:	Brisbane
HEARING DATE:	25 November 2014
JUDGES:	Carmody CJ and Morrison JA and Dalton J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Allow the application to amend the notice of appeal. 2. Allow the application for leave to adduce evidence. 3. Dismiss the appeal.
CATCHWORDS:	EVIDENCE – APPEAL AGAINST CONVICTION – JURY VERDICT UNREASONABLE OR INSUPPORTABLE BY EVIDENCE – where the appellant was convicted of murder as a principal offender – where the appellant filed an appeal against conviction – where the appellant asserted that the jury verdict was unreasonable or insupportable by the evidence – where there were internal and mutual inconsistencies in witness testimonies – whether it is unsafe to rely on the witness testimonies – whether there is a significant possibility of a wrongful conviction – whether it would be dangerous to allow the verdict to stand EVIDENCE – APPEAL AGAINST CONVICTION – NEW EVIDENCE DISCLOSED AFTER TRIAL – ADMISSIBILITY OF NEW EVIDENCE – MISCARRIAGE OF JUSTICE – where the appellant was convicted of murder as a principal offender – where the appellant filed an appeal against conviction – where there was new witness testimony disclosed by the prosecution after trial – whether the testimony constituted “fresh” evidence – whether the testimony was admissible on appeal – whether the failure to disclose this evidence before trial resulted in a miscarriage of justice Criminal Code (Qld), s 7, s 8, s 668E Driscoll v The Queen (1977) 137 CLR 517; [1977] HCA 43, cited M v The Queen (1994) 181 CLR 487; [1994] HCA 63, considered R v Katsidis; ex parte Attorney-General (Qld)[2005] QCA 229, considered
COUNSEL:	D R Lynch for the appellant M R Byrne QC for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Director of Public Prosecutions (Queensland) for the respondent