R v Coombes
[1999] VSCA 38
•16 April 1999
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No.99 of 1998
| THE QUEEN |
| v |
| JOHN LESLIE COOMBES |
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JUDGES: | PHILLIPS, C.J., PHILLIPS and BUCHANAN, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 11 March, 1999 | |
DATE OF JUDGMENT: | 16 April, 1999 | |
MEDIA NEUTRAL CITATION: | [1999] VSCA 38 | |
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Criminal law - Murder - Acting in concert - Withdrawal from plan - Sufficient relation of facts to law in charge.
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Mr. J. Rapke | P.C. Wood, Solicitor for Public Prosecutions |
| For the Applicant | Mr. A.R. Lewis | Victoria Legal Aid |
PHILLIPS, C.J.:
I have had the benefit of reading the judgment of Buchanan, J.A., in draft form. I concur in the conclusions His Honour has reached and I would subscribe to his reasons therefor.
PHILLIPS, J.A.:
I agree with Buchanan, J.A.
BUCHANAN, J.A.:
On 16 March 1998 a jury found the applicant guilty of murdering Michael Speirani. The applicant seeks leave to appeal against his conviction. The grounds for the application complain of the inadequacy of the directions given to the jury with respect to acting in concert and withdrawal from concerted action. The applicant contends that the trial judge failed to relate the evidence to the law concerning acting in concert and withdrawal from a plan to perform acts amounting to murder or manslaughter, and failed to direct the jury adequately as to those matters or relate the evidence to those concepts upon being requested by the jury to do so.
The murder was alleged to have occurred on 26 February 1984 when the applicant was aged 29 years and the victim was aged 20 years. Speirani lived in Mt Martha with his parents. In the afternoon of 26 February 1984 Speirani told his mother that he had arranged to sell his motor car. He drove away in his car from the house accompanied by Glen Conlan, a school friend, in another car. Mrs. Speirani never saw or heard from her son again.
A few days after Michael Speirani disappeared the applicant telephoned Speirani's mother and said that he had purchased Speirani's car and needed the registration papers. The next day Mrs. Speirani went to the applicant's house where she saw her son's car. She gave the applicant the registration papers after he produced a paper apparently bearing Michael Speirani's signature. The applicant told her "they" had dropped off Speirani at the Chelsea railway station.
The applicant was tried alone, an application on behalf of Conlan for a separate trial having been granted on 24 February 1998. Conlan later pleaded guilty to a charge of manslaughter.
The principal Crown witness in the trial against the applicant was the applicant's former wife, Sandra Flatters. She said that Conlan had been to their house on a number of occasions as he worked with the applicant. She recalled that Michael Speirani came round to their house to sell his car to the applicant. Conlan was present. She had not met Speirani before. The applicant indicated that he wanted to test the car to see how it handled towing his fishing boat, especially launching it into the water and landing it from the water. Conlan, the applicant and Speirani left in the car, towing the boat on a trailer.
At about midnight Conlan and the applicant returned to the applicant's house. Both had injuries suggesting that they had been in some kind of fight. Conlan was as white as a sheet. They told Flatters that they had dropped Michael Speirani off at Chelsea on the way home. After Conlan left, Flatters asked the applicant about the injuries to his knuckles, which were bleeding and grazed. He said that he and Michael Speirani had got into a fight about the car and that he had hit Speirani a number of times and then they "threw him overboard". He said that they had run over him with the propeller and pulled him into the side of the boat, and the applicant said that he "sliced him up a bit so that the fish could finish him off". The next morning Flatters cleaned the boat. She found dried blood on the gunnel rails, blood spatters elsewhere, the majority being on the starboard side of the boat towards the rear end, bloody handprints on the starboard side and on the rear of the wash well and fresh dints in the propeller. Flatters also found a wallet on the bench containing Speirani's driving licence. The applicant took this from her and said to her that he had taken all Speirani's ID so that Speirani would not be able to be identified. The applicant gave her the registration papers for the car and told her to forge Speirani's signature to enable the registration to be transferred.
The applicant was interviewed by police on 17 January 1997. He gave an account of the purchase of the car and said that he and Conlan had left with Speirani in the car with the boat in tow as he and Conlan were going fishing. He said they dropped Speirani off at a service station on the Nepean Highway before going fishing.
After the interview the applicant was charged with the murder of Speirani and later that day he told the police that he wanted to make a full confession. A second interview was conducted and a statement was prepared based upon the interview. That statement was signed by the applicant. According to the statement Speirani was to get a "flogging" or "good hiding" because Speirani was said to have sexually assaulted Conlan's sister. Both the applicant and Conlan set upon Speirani in the boat after they had sailed eight miles out to sea. First Conlan kicked Speirani in the face, and then the applicant punched Speirani. The statement continued:
"As Speirani was coming towards me I spun him around to face Glen. As I grabbed him to do this I heard his breath expel in a 'whoosh'. When I had spun him completely around to face Glen, Glen began punching him a number of times in the mid-section. It was then that I realised that Glen had the knife I had used to fillet the fish in his hand and was in fact stabbing him. I then pushed Speirani directly into Glen to try and break the contact between them. Glen then sidestepped and Speirani went forward and grabbed the handrail of the boat. He was in a hunched over position and leaning over the side of the boat as he was trying to stop himself going overboard. Glen then swung round with his right knee and struck Speirani to the base of the spine area causing Speirani overboard and into the water.
I then screamed something to Glen and I have an idea that I in fact hit Glen and I kept screaming to him about what he had done. I don't know if I was scared about what danger I was in at the time and I vaguely remember the way Glen was looking that I didn't know what was going to happen to me. I saw Speirani surface and he spoke and that distracted Glen. Speirani seemed to be about ten feet away from the boat on the port side. He looked up at Glen and he was screaming out things like, 'Glen, don't do this', 'What have you done', 'For God's sake help me, don't do this'. There were other things that he said as well but these are the terms that stick in my mind. I couldn't make out what Glen was saying at the time but he was coaxing Speirani to the boat. I do remember Glen telling Speirani to put his hand out and it seemed as if Glen had grasped his hand and was pulling him in towards the boat. I backed up at this point as I thought Glen was going to pull him on board and that whatever was happening was over. Glen then let Speirani's hand go and told him to turn around so he could help him. Glen then reached over the side with his left hand and I saw that Glen had him by the hair and began lifting him out of the water. It was then that I noticed that Glen was swinging his right hand down and it contained a knife. I think Glen was holding the knife in an under hand fashion i.e.: a palm up position. I saw Glen then drive the knife I believe into the chest area of Speirani. I believe this happened just the once. I believe I screamed out something to Glen again but it was something to the effect of 'Stop this shit now' or something to that effect. Glen then straightened up and looked at me and he turned partially away from the boat and threw the knife over the port side of the boat. I couldn't see Speirani at this time as Glen had let him go when he, Glen, stood up to face me. I did not hear Speirani say anything else after this."
The only witness called by the defence at the trial was a pathologist who gave evidence of the extensive injuries sustained by a man killed by Conlan on another occasion. The injuries suggested an attack using knife, axe and firearm.
The competing versions of the circumstances in which Speirani was killed were on the one hand the account of the confession given by the applicant's ex-wife and on the other hand the account contained in the second record of interview and signed statement made by the applicant. In his charge the trial judge said that the applicant's counsel urged the jury "to accept ... that John Coombes had given a truthful account in the second interview and statement." The Crown urged the jury to accept Flatters' evidence, but contended in the alternative that if the jury accepted the applicant's version of the events, he was guilty of murder. The questions raised in this application concerned the proper way to treat the events which the applicant described in his second record of interview and statement and then only in relation to acting in concert and withdrawal from concerted action.
In the course of his charge the trial judge directed the jury as to the law relating to the commission of a crime by two persons acting in concert. He told the jury that the prosecution had to prove three matters: that the crime of murder was committed; that there was agreement between the applicant and Conlan to commit it; and that the applicant was present at the scene of the crime pursuant to the agreement, either helping or holding himself ready to help in its commission.
The trial judge also directed the jury as to what was required to withdraw from a planned crime. He said it was not sufficient to feel qualms or wish to stop the plan being put into action. He said, "There must be action taken and that action must be such as may reasonably be taken to undo the effect of the previous participation." At the same time his Honour emphasized that the onus of proof remained always on the Crown and, thus, if they considered the element relevant, the jury had to be satisfied that there had been no withdrawal.
Save as mentioned below, I do not understand counsel for the applicant to criticize the description of the law given by the trial judge as to these matters.
The trial judge then recounted the submissions made by counsel. He said that the principal question was the choice between the evidence of Flatters and the applicant's second interview and statement. The trial judge said that if the jury accepted the applicant's statement that, upon realizing Conlan was using a knife, he separated the deceased and Conlan, screamed at Conlan and perhaps hit Conlan, they would have to consider whether those actions might reasonably be taken to have undone the effect of his previous participation in the plan.
His Honour told the jury that murder required an intention to kill or to inflict really serious injury. Accordingly the jury was aware that in order to find the applicant guilty of murder by acting in concert with Conlan they had to find that there was an agreement or plan to kill or inflict really serious injury. The trial judge later reiterated this element. He referred to the question of the scope of any plan between the applicant and Conlan and said, at p.511:
"Was it to kill or inflict really serious injury, or was it to inflict injuries less than really serious but by acts that were dangerous, in the sense that I have given, or was it to inflict injury by acts that could not even be viewed as dangerous?"
A plan of the first type was one to commit murder, a plan of the second type was one to commit manslaughter, and a plan of third sort involved neither manslaughter nor murder.
It was apparently assumed by counsel and the trial judge that the use of a knife was not part of the plan described by the applicant, and accordingly the jury had to be satisfied that the plan to administer a flogging or hiding was one to inflict grievous injury. It was not suggested on behalf of the applicant that, if the jury were so satisfied, in using a knife Conlan "departed completely from the concerted action of the common design and [had] suddenly formed an intent to kill and [had] used a weapon and acted in a way which no party to the common design could suspect." R. v. Anderson [1966] 2 Q.B. 110, at 120. Counsel for the applicant accepted that even if the use of a knife was not foreseen by the applicant, if the jury found there was an anterior agreement to inflict grievous injury, the use of a knife would not relevantly exceed the quantum of violence in contemplation by the applicant.
While the prosecution's first position was that the jury should accept Flatters' evidence, which disclosed concerted action by the applicant and Conlan, the defence (and the prosecution as an alternative position) relied upon the applicant's second record of interview and statement as evidence of the plan. The trial judge told the jury that counsel for the applicant contended that the record of interview and statement should be accepted as showing the plan was only to frighten Speirani and leave him ambulatory, while the prosecutor contended that the evidence should be viewed with other evidence such as taking the victim eight miles out to sea, the violent attack constituted by kicking and heavy punching and the fact that the applicant returned with Speirani's wallet, to lead to the conclusion that the plan was to inflict grievous bodily harm. On the other hand the judge told the jury that they should consider whether the actions described by the applicant, namely separating Conlan from Speirani, screaming at Conlan and perhaps hitting Conlan, did amount to withdrawal from the plan. In dealing with counsels' submissions the judge said:
"Bearing in mind that the onus is on the prosecution, if you are not satisfied that you should reject both of the position of Mr Lewis, first, that you should find that the planned acts were not dangerous and, secondly, that the actions of John Coombes should be treated as a withdrawal from the plan, you do not return a verdict of guilty of murder or of manslaughter, but move to your consideration of the crime of accessory after the fact to murder."
Counsel for the applicant contended that the trial judge failed to adequately relate the law to the facts. He submitted that the trial judge did not draw together the facts of the case and put them to the jury in a cohesive form. It was said that the charge did not meet the requirements stated by Lord Hailsham in R. v. Lawrence [1982] A.C. 510, at 519, in these terms:
"A direction to a jury should be custom built to make the jury understand their task in relation to a particular case. Of course it must include references to the burden of proof and the respective roles of jury and judge. But it should also include a succinct and accurate summary of the issues of fact as to which a decision is required, a correct but concise summary of the evidence and arguments on both sides, and a correct statement of the inferences which the jury are entitled to draw from their particular conclusions about the primary facts."
The trial judge was said to have fallen into the error identified by Sir Leo Cussen of explaining the law to the jury in general terms and then leaving it to them to apply the law to the case before them. See Alford v. Magee (1952) 85 C.L.R. 437, at 466.
In my opinion the trial judge's charge did expose the issues to be determined by the jury and identified the relevant evidence that related to those issues so as to enable the jury to properly relate the evidence to the issues. It was common ground that the deceased met his death on or near the boat far out to sea in the company of the applicant and Conlan. There were two competing accounts of the circumstances in which he met his death. If the jury accepted the account of the applicant's ex-wife, the applicant was guilty of murder as a participant in the acts that caused Speirani's death. If the jury accepted the applicant's account, it was necessary to determine whether the plan to which the applicant agreed was one to kill or inflict grievous bodily harm and, if so, whether the applicant withdrew from the plan. The evidence as to the plan was stated in plain terms, and the trial judge told the jury that if they accepted the applicant's account of his physically separating Conlan from Speirani, swearing at and possibly hitting Conlan, they could conclude that the applicant withdrew from the plan. I would add that the jury was also told that the onus of proof lay upon the prosecution, not the defence. Counsel for the applicant submitted that the trial judge should have directed the jury to also weigh the surrounding circumstances such as the isolation of the protagonists in a small boat miles from shore, the frenzied nature of Conlan's attack upon Speirani and the fact that Conlan was armed with a knife. In my view those matters were obvious and the jury required no reminding of them by the trial judge. There were other surrounding circumstances such as the apparently harmonious return by the applicant and Conlan to shore, where they drank together, and the appropriation of the victim's car by the applicant, which, if dwelt upon, would not have assisted the applicant.
Counsel for the applicant submitted that the jury should have been given a fuller description of the concept of withdrawal from the common design, along the lines of that appearing in the Canadian case, R. v. Whitehouse [1941] 1 D.L.R. 683, at 685, where it was said:
"I would not attempt to define too closely what must be done in criminal matters involving participation in a common unlawful purpose to break the chain of causation and responsibility. That must depend upon the circumstances of each case but it seems to me that one essential element ought to be established in a case of this kind: where practicable and reasonable there must be timely communication of the intention to abandon the common purpose from those who wish to dissociate themselves from the contemplated crime to those who desire to continue in it. What is 'timely communication' must be determined by the facts of each case but where practicable and reasonable it ought to be such communication, verbal or otherwise, that will serve unequivocal notice upon the other party to the common unlawful cause that if he proceeds upon it he does so without the further aid and assistance of those who withdraw. The unlawful purpose of him who continues alone is then his own and not one in common with those who are no longer parties to it nor liable to its full and final consequences."
In my opinion a direction along those lines would not have materially assisted the jury in the present case. The evidence of withdrawal consisted of physically separating Conlan from Speirani, screaming at Speirani and perhaps hitting him. These events were by no means complex, and the jury was told by the trial judge more than once to consider whether, if they accepted the applicant's evidence, there had been withdrawal.
The applicant made a related complaint as to the manner in which the trial judge dealt with a question by the jury. The foreman asked:
"Your Honour, we would like to have last Friday's transcript in which your Honour clarified the definitions of murder and manslaughter and/or acting in concert, etc., and we would also ask you once again to provide an explanation of what constitutes withdrawal from an agreement to act in concert."
The trial judge said that it was not his practice to furnish juries with transcripts of his charges and enquired whether it would answer if the jury were supplied with a summary statement in point form of the elements of murder and manslaughter and concert and withdrawal from concert, to which the foreman responded:
"Exactly. It's the definitions themselves."
The jury was provided with a document stating in summary form the elements of murder, manslaughter by an unlawful act, acting in concert and withdrawal from a planned action. It was the last matter to which the applicant's counsel directed our attention. The document stated:
"The prosecution must establish beyond reasonable doubt:
...
Non-withdrawal from acting in concert.
That there has not been such action taken by the accused as may reasonably be treated as undoing the effect of the previous participation."
Counsel for the applicant submitted that, while the document was an accurate statement of the law, it was deficient in failing to relate the law to the facts. As I have said, I consider that in the course of his charge the trial judge did sufficiently relate the law to the facts and identified the issues which the jury had to determine. In my view the jury's question did not disclose a need on the part of the jury for more than an account of the elements of withdrawal from an agreement. In any event, the foreman's ready assent to the proposal to furnish a statement in point form of the elements of withdrawal and the failure of the jury to ask any further questions although invited to do so, in my opinion put the matter beyond doubt.
Reading the charge as a whole and considering the question asked by the jury and bearing in mind the nature of the evidence, I consider that the jury was adequately instructed not only as to the law, but also as to the issues of fact to be determined by the jury and the relevant evidence bearing upon those issues.
I would dismiss the application.
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